Chapter 5 - Vicarious Liability

Question 1

What is the effect of vicarious liability?

Answer 1

It imposes liability on one party for the wrongful act of another. Usually on an employer for the act of an employee. It allows the victim to sue both an individual and an organisation.

Question 2

What are the three requirements for vicarious liability to exist?

Answer 2

1 - a tort has been committed
2 - by an employee
3 - the tort was committed in the course of employment or closely connected with the role

Question 3

What are three tests used by the court to distinguish an ‘employee’ from an independent contractor?

Answer 3

1 - the control test
2 - the organisation test
3 - the multiple test (the one used today)

Question 4

What is the control test?

Answer 4

If an employer tells the worker what to do, how, when and where to do it then the worker is considered an employee.

Question 5

What is the leading case law for the control test?

Answer 5

Yewens v Noakes [1880]

Question 6

What is the organisation test?

Answer 6

If a worker is part of an organisation under a contract of service and their work is an integral part of the business then they are an employee

Question 7

In which case was the organisation test used?

Answer 7

Cassidy v Minister of Health [1951]

Question 8

What is the multiple test?

Answer 8

The test which is used today, based on the economic reality of the situation including where and when a worker works, how much control an employer has over them, whether they can be selected or dismissed, their contract status, how they are paid, do they pay tax etc. No one of these factors will decide but many of them.

Question 9

In which case did the multiple test originate?

Answer 9

Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968]

Question 10

When is a casual or temporary worker considered an employee and which case law did this come from?

Answer 10

If there is a mutuality of obligation (the employer is bound to offer and the employee bound to accept) - from Carmichael v National Power [1999].

Question 11

What was held in Motorola Ltd v Davidson + Another [2001] regarding agency workers?

Answer 11

That a worker supplied and paid for by an agency is an employee of the agency’s client

Question 12

What was held in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] in relation to liability of alleged abuse by a clergy member?

Answer 12

That even though a Roman Catholic Priest is not an employee of the church (they are called by God), the relationship between the priest and the church was “akin to employment” and so the defendant was held vicariously liable

Question 13

Which two factors were considered (and satisfied) by the court in Catholic Child Welfare Society v Various Claimants (FC) [2012] regarding potential vicarious liability of an institute of Monks?

Answer 13

1 - if the relationship between the abusers and the institute (def) would give rise to vicarious liability
2 - the closeness of the connection between the individual and the organisation and the individual’s act or omission

Question 14

Who is liable for an employee when one organisation ‘lends’ an employee to another and how is this rule reversed?

Answer 14

The permanent employer will be liable for acts/omissions of the employee unless they can show control was passed to the other employer

Question 15

When is the presumption that a permanent employer is liable for a lent employee easier to rebut?

Answer 15

Where only labour has been lent. If equipment has also been lent, it is harder to show control was passed over

Question 16

What is the leading case on the presumption of liability regarding lent employees?

Answer 16

Mersey Docks and Harbour Board v Coggins + Griffith (Liverpool) Ltd [1946]

Question 17

What are the three examples of an act performed in the course of employment (and which an employer may be held vicariously liable for)?

Answer 17

1 - wrongful act authorised by employer
2 - lawful act authorised but carried out wrongfully
3 - act closely connected to the tortfeasor’s role

Question 18

What is a “frolic of one’s own” and give a case law example

Answer 18

As a frolic is an act outside a workers usual duties, their employer will not be held liable - Hilton v Thomas Burton (Rhodes) Ltd [1961]

Question 19

Give a case law example in which the employee was held to be acting in the course of employment when doing something wrong or forbidden at the time.

Answer 19

Limpus v London General Omnibus Co Ltd [1862] - acts committed were forbidden but the main underlying act they were engaged in was part of employment.

Question 20

Gravil v Carroll and Another [2008] is a case law example of what in relation to an act not committed in the course of employment?

Answer 20

It is an example of an employer still being liable for the act because the act was “closely connected” with the employee’s role even though not committed in the course of employment.

Question 21

What is the test in relation to intentional acts which are closely connected to an employee’s role, as stated by the House of Lords in Lister v Hesley Hall [2001]

Answer 21

The test is to determine if the act is so closely connected with the employment that it would be fair to hold the employer liable

Question 22

What is the two part test from A M Mohamud … v W M Morrson Supermarkets plc [2016] which expands upon the Lister test re employees?

Answer 22

1 - what is the broad nature of the job

2 - is there sufficient connection between the job & wrongful conduct to make it right to hold an employer liable

Question 23

What is the effect of vicarious liability where one employee harms another?

Answer 23

The employer may be primarily liable as well as vicariously liable in negligence for a breach of duty of care as both the employer and an employee are negligent.