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Tort Law > Vicarious Liability > Flashcards

Vicarious Liability Flashcards

1
Q

Three steps to establish vicarious liability

A
  • a tort was committed
  • by an employee
  • in the course of employment
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2
Q

Test of an employee

A

Ready Mixed Concrete

  • Remuneration
  • Control
  • Other Contractual Provisions
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3
Q

Remuneration

A
  • Who pays them and how?

- Are they paid a regular salary or a lump sum?

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4
Q

Control

A
  • What can they be required to do?
  • The higher level of control, the more likely the person is an employee (Yewens v Noakes)
  • tax case about the status of a clerk
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5
Q

Other Contractual Provisions

A

Are the provisions of the contract consistent with a contract of service?
- if the employee bears the risks, profits and losses of the job then he is unlikely to be an employee
(Ready Mixed Concrete)

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6
Q

Ready Mixed Concrete case

A

The defendant drove the company’s cement mixer, which he was responsible for hiring, insuring and running, and was paid per mile, so he was held not to be an employee.

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7
Q

Further Factors to consider when examining contractual provisions.

A 
Warner Holidays v Secretary fo State for Social Services
(had to pay national insurance for it's contracted holiday camp entertainers)
- Provision of tools and equipment
- Tax
- Hours of Work
- Exclusivity
- Labelling
- Mutuality of Obligations
- Integration
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8
Q

Does the employer provide them with tools and equipment

A

Ready Mixed Concrete

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9
Q

Did the employer pay his tax through PAYE?

A

Airfix Footwear v Cope

- woman worked from home making shoes

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10
Q

The Defendant did not deduct for National Insurance and tax so deemed an employee

A

Ferguson v Dawson

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11
Q

Can the employer prevent him from taking other jobs?

A

Argent v Minister of Social Security

- teacher did not teach the syllabus and was free from the school

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12
Q

Is he called an employee?

Although this is not conclusive

A

Massey v Crown Life Insurance

- changed his name status from an employee to a contractor

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13
Q

Can the employer require the employee to work, and vice versa?

A

O’Kelly v Trusthouse Forte

- Waiters at a london hotel were not obliged to turn up when asked and the hotel were not obliged to give them work

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14
Q

Is the employee integrated into the business of the defendant?

A

Stevenson v Macdonald & Evans

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15
Q

When lending employees, the presumption is that the original employer remains liable.

A

Mersey Docks v Coggins and Griffiths

- hired out crane driver negligently injured somone

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16
Q

When lending employees, where both employers have equal control over the employee then they may have dual liability.

A

Vivasystems v Thermal Transfer

- sub-contracted employee negligently fitted an air conditioner causing property damage

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17
Q

The contracted doorman of a nightclub was an employee as the nightclub had detailed control over him and he had to wear a uniform

A

Hawley v Luminar Leisure

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18
Q

The court will assume that the employee is lend under the employment of the initial employee unless otherwise proven

A

Biffa Waste v Machinenfabrik

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19
Q

Vicarious liability may exist even where there is no contract of employment as long as the relationship between the tortfeasor and the defendant is ‘sufficiently akin to that of an employer and emplyee’

A

Christian Brothers

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20
Q

Teachers belonging to an unincorporated religious association working at a school were ‘akin to an employment relationship’

A

Christian Brothers.

21
Q

Vicarious liability can exist where the tortfeasor carries on activities assigned to him by the defendant as ‘an integral part of the defendant’s operation and for its benefit’

A

Cox v Ministry of Justice

- caterer was injured by a prisoner serving in the canteen

22
Q

Foster parents has a relationship with the Local Authority that was akin to employment.

A

NA (Armes) v Nottinghamshire CC

23
Q

NA (Armes) v Nottinghamshire CC: 5 points for a relationship akin to employement

A
  • The body has the means to compensate
  • The tort was committed as a result of activity undertaken on behalf of the body
  • The activity is an integral part of the bodies’ activities.
  • The body created the risk by placing the claimant in the activity
  • A high degree of control is not necessary for vicarious liability to be imposed.
24
Q

The bank was liable for sexual assaults committed by the doctor during those examinations

A

Various Claimants v Barclays Bank

25
Q

Priest of the Catholic Church were found to be akin to employees

A

JGE v English Province of our Lady Chapel

26
Q

An employee will be in the course of employment if there is a ‘closeness of connection’ between the employee’s act and their employment

A

Lister v Hesley Hall

27
Q

Bus drivers racing each other were held to be in the course of employment

A

Limpus v London Omnibus

28
Q

Railway porter pulling a man of the train was held to be in the course of employment

A

Bayley v Manchester Railway

29
Q

Demanding and making an arrest as an off duty police officer was held to be in the course of employment

A

Bernard v Att Gen of Jamaica

30
Q

Fight on the rugby field after the match had finished was held to be in the course of employment

A

Gravil v Redruth Rugby Club

31
Q

Petrol Tanker driver smoking and causing a fire was held to be in the course of employment

A

Century Insurance v NI Road Transport

32
Q

‘interacting with customers’ was held to be in the course of employment

A

Mohamud v Morrison Supermarkets

- racist abuse against a customer

33
Q

If the employee’s act is a ‘frolic of his own’ it will generally not be in the ‘course of employment’

A

Joel v Morison

- driver of the horse and cart had taken a large detour to visit his friend

34
Q

Conducting and driving a bus unasked was held not to be in the course of employment

A

Beard v London Omnibus

35
Q

A bouncer following a victim home and attacking him was held not to be in the course of employment

A

Daniels v Whetstone

-

36
Q

A policeman helping an immigrant woman if she had sex with him was held not to be in the course of employment

A

Makanjuola v Metropolitan Police Commissioner

37
Q

Harassment between two police officers who had broken off a relationship outside work was held not to be in the course of employment

A

Allen v CC Hampshire

38
Q

Express Prohibition

A

Employers are generally not liable where an employee has acted contrary to an express prohibition

39
Q

A sign in a lorry’s cab forbade a lorry driver from picking up hitchhikers, so the company was not liable for the hitchhiker’s injuries when the employee negligently crashed his lorry after picking up a hitchhiker.

A

Twine v Bean Express

40
Q

A 13 yo boy injured when helping a milkman on his rounds was able to recover because it was held that the milkman was still acting within the course fo his employment despite a prohibition by his employer on using children to assist with his round

A

Rose v Plenty

- an unauthorised way of doing something authorised

41
Q

Derivations from an authorised route are not in the course of employment

A

Smith v Stages

42
Q

Criminal acts are generally thought not to be in the course of employment

A

Warren v Henleys

- petrol station worker assaulted a worker

43
Q

People may still be in the course of employment if there is a close connection between the crime and what they are employed to do

A

Lister v Hesley Hall

44
Q

Warden committed sexual assaults at a children’s home during employment when he was hired to protected the children

A

Lister v Hesley Hall

45
Q

A bouncer at a dodgy club, who stabbed the claimant was held to be in the course of employment as he was encouraged to use violence as part of his job

A

Mattis v Pollock

46
Q

A priest who sexually assaulted a boy was held to have been acting in the course of employment, as there was a sufficient connection with his job

A

MAGA v Trustees of Birmingham Archdiocese

47
Q

A customer suffered racist abuse from a supermarket employee. It was held that the employee should be seen as ‘wearing the badge’ of his employer.

A

Mohamud v Morrison supermarkets.

48
Q

Outline of a Vicarious Liability Problem

A

A tort has been committed
There is an employment relationship
Was the Tort Committed in the course of employment

Tort Law (5 decks)

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