vicarious liability Flashcards
What is the definition of vicarious liability?
When a person or organisation is legally responsible for a tort they didn’t commit due to their relationship with the tortfeasor.
Who is the tortfeasor?
The person who actually commits a tort.
Who is the defendant?
The person legally responsible for the tortfeasor’s actions (i.e. their employer).
When does vicarious liability apply?
The one main relationship where it applies is that of employer and employee. In recent years, the courts have extended this to cover relationships akin to that of employer and employee.
What is the test to determine if an employer is vicariously liable for the employee’s wrongdoing?
-The tortfeasor was employed by the defendant
-The tort was committed while the tortfeasor was in the course of employment
Which case sets out the main issues for determining if someone is an employee or self employed?
Ready Mixed Concrete v Min of Pensions. The court decided that the key factors to consider to determine if a person is employed or self employed are:
The worker must agree to provide work in return for a regular wage.
The worker accepts that he will be under the control of the company.
All other contract terms are consistent with the worker being regarded as an employee.
What other factors will be considered as part of the multiple/ economic reality test?
-Description of role
-Training by company
-Uniform provided
-Payment of tax and national insurance
-Ownership of tools
-Paid a regular salary
-Flexibility of worker to dictate hours and working for others
What happens if an employer lends an employee to another employer?
Mersey Docks and Harbour Board v Coggins and Griffiths. Mersey Docks were still responsible for the actions of the employee as they still had a sufficient degree of control over the crane driver. There is a presumption that the permanent employer will remain vicariously liable unless the contrary can be proved.
In which case was the permanent employer not vicariously liable for the lent employee?
Hawley v Luminar Leisure. As the nightclub exercised a lot of control on how the bouncer carried out his work, it should be regarded as the bouncer’s employer.
Where was the non-traditional worker not an employee, but a self employed worker?
Barclays Bank v various claimants. The relationship was not akin to employment. The court said we must look at all the details of the relationship. Where it is clear someone is carrying out their own business, they are an independent contractor. Where this is not clear, the criteria from Cox can be used to decide if it is fair, just and reasonable to make the defendant liable.
What case is an example of a relationship akin to that of employee and employer?
Cox v Ministry of Justice. A relationship other than one of employment can give rise to vicarious liability where:
Harm is wrongfully done by an individual who carries out activities as an integral part of the defendant’s business rather than for the benefit of someone else and,
The risk of harm was created by the defendant giving the individual those activities.
What does in the course of employment mean?
Either the wrongful act was authorised by the employer or the wrongful act was unauthorised but the act was so closely connected to the work authorised by the employer.
What is the legal principle from Morrisons (2020)?
We should look at what the tortfeasor was authorised to do and what the tortfeasor actually did in the case. Do these things have a close enough connection that it’s fair to say it was done during the ordinary course of employment? (In this case, T was acting purely for personal reasons not to further the employer’s business).
Which case is a criminal example of acting in the course of employment?
Mohamud v Morrisons. Here the crime took place while T was working on D’s premises. It was a part of T’s job to interact with customers and the argument was linked to the business. Therefore, the wrongdoing was committed in the course of employment.
Which case is a criminal example of actions not done in the course of employment?
N v CC of Merseyside. The police force weren’t vicariously liable because T was acting for personal reasons when picking up the vulnerable woman after his shift had finished; it isn’t fair to say that his acts were done in the ordinary course of employment.
