Vicarious + Occupiers' Liability Flashcards
What is vicarious liability?
Vicarious liability is not a tort; it is a principle under which a person is liable for the torts committed by another.
Under the principle of vicarious liability, it is not a requirement that the employer has committed a tort themselves. Their liability is a form of secondary liability in that it derives from a tort committed by their employee.
What are the 3 elements needed for an employer to be vicariously liable?
The worker must be an employee (or in a relationship akin to employment).
- The employee must have committed a tort.
- The employee’s tort must have been committed in the course of his employment.
Who is an employee?
Must be an employment relationship (D1 cannot be an independent contractor); or
Must be a relationship akin to employment.
What is a relationship akin to employment?
(i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
(ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) The employee’s activity is likely to be part of the business activity of the employer;
(iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee;
(v) The employee will, to a greater or lesser degree, have been under the control of the employer.
When will an employee be acting ‘in the course of employment’?
Where the acts are:
Wrongful acts which it has authorised (e.g., pushing a thief who robs something from the shop - employer impliedly authorised this).
Wrongful and unauthorised modes of carrying out an authorised act (e.g., smoking whilst unloading oil).
When will acts expressly prohibited by the employer result in vicarious liability?
Where the act is done for the employer’s business, it is usually done in the course of employment, even though it is a prohibited act.
Where the act does not further the employer’s business at all, VL cannot occur.
Will an employer be VL for intentionally committed torts?
Usually, no.
But if there is a close connection between the work an employee is employed to do and the tort, VL can occur (Lister principle).
When is the Lister principle met?
- The court must ask what function or field of activities has been entrusted by the employer to the employee (i.e., what was the nature of their job).
- The court must decide whether there was a sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just for the employer to be held liable.
What are ‘frolic cases’ in relation to VL?
What is an employer’s indemnity?
If an employee is acting outside of their course of employment when they commit a tort, they are often said to be ‘on a frolic of their own’. Many of the cases concern employees whose work involves driving and who commit a tort while deviating from the route authorised by their employers.
This involves considering two issues - geographical divergence and departure from the task set. The greater the degree of departure from one or both of these, the more likely it is that an employee will be ‘on a frolic of their own’.
What is an employer’s indemnity?
Where an employer is VL and has paid out compensation to someone, the employer can claim an indemnity (its full loss) from the employee who actually committed the tort.
Note: employers’ liability insurers have entered into an informal agreement not to pursue such claims for an indemnity unless there is evidence of collusion or wilful misconduct on the part of an employee.
What is occupiers liability?
A type of tort where one owning or holding land owes a duty to people coming onto the land.
What must C prove in relation to OL?
- establish that they have suffered loss due to the state of the premises;
- identify the occupier;
- prove that they are a visitor;
- establish that the occupier failed to take reasonable care for the visitor’s safety.
Who is an occupier?
Someone who has ‘a sufficient degree of control over premises’.
Given the test is of control, someone who is not an owner of the can still have sufficient control over them to be an ‘occupier’.
There can be more than one occupier on a premises.
Who might be an occupier?
A landlord, an independent contractor, a renter, a lodger etc.
Who is a ‘visitor’?
Those with express or implied permission to be on the occupier’s land.
Includes those who enter under a contract or enter to exercise a right conferred by law.
Those without express/implied permission (or who lose this by exceeding their permission whilst on the land e.g., to steal) will be a trespasser and not entitled.
What are premises?
Very wide - includes fixed structures, open land, vessels, vehicles etc.
What duty of care is owed by the occupier to visitors of the premises?
A common duty of care - standard of care expected of an occupier is the same as in an ordinary negligence claim, i.e., must reach the standard of the reasonable occupier.
How will the court determine the standard of care required?
- nature of the danger;
- purpose of visit;
- seriousness of injury risked;
- magnitude of risk;
- cost and practicability of steps required to avoid the danger;
- how long the danger had been on the premises;
- any warning of the danger;
- type of visitor
The standard of care for occupiers is higher in relation to children visitors. In what way?
Higher as children do not appreciate risks as well as adults.
SoC increases in relation to allurements e.g., berries.
Occupiers will have complied with their duty to a very young child visitor if they make their premises reasonably safe for a child who is accompanied by the sort of guardian by whom the occupier is entitled, in all the circumstances, to expect the child to be accompanied
The standard of care for occupiers is lower in relation to skilled visitors. In what way?
Occupier is entitled to expect such a visitor to appreciate and guard against any special risks which are part of the visitor’s job.
