Employer's Liability (Vicarious Liability)

Question 1

Vicarious Liability:

Definition

Answer 1

Vicarious liability is a principle of law, not a tort.
If C can show that a tort has been committed by an employee in the course of employment then a claimant can sue employer.

Question 2

Vicarious Liability:

Defining ‘employee’

Answer 2

An employee is:

• employed under a contract of service
• providing service for just one person
• working for employer’s business interests

Question 3

Vicarious Liability:

Defining ‘independent contractor’

Answer 3

An independent contractor is:

• employed under a contract for service
• providing services for several people
• working for their own business interests

Question 4

Vicarious Liability:

Ready Mixed Concrete

Answer 4

There is a contract OF service (employee) where worker:

• provides work for remuneration;
• agrees that he is subject to sufficient control of another in the performance of this service; and
• other provisions of the contract are consistent with a contract of service

Question 5

Vicarious Liability:

Who does tort need to be committed by?

Answer 5

For vicarious liability to be available, the tort needs to have been committed by an employee, not an independent contractor

Question 6

Vicarious Liability:

Course of employment

Answer 6

For vicarious liability to be available, the tort needs to have happened whilst the employee was in the course of employment

Question 7

Vicarious Liability:

Authority for course of employment

Answer 7

Salmond’s classic definition, given common law authority in Lister v Hesley Hall

Question 8

Vicarious Liability

Employers will be liable for

Answer 8

Wrongful acts it has authorised; and

Wrongful unauthorised modes of carrying out authorised acts

Question 9

Vicarious Liability:

Poland v Parr

Answer 9

Employers will be liable for wrongful acts it has authorised

Question 10

Vicarious Liability:

Century Insurance v NI Road Transport Board

Answer 10

Employers will be liable for wrongful/unauthorised modes of carrying out authorised acts

Question 11

Vicarious Liability:

Warren v Henleys

Answer 11

Employee punches a customer in the face after an insult.

Not deemed to be in course of employment as was deemed a personal act

Question 12

Vicarious Liability:

Intentional torts committed purely for employee’s benefit

Answer 12

Salmond suggests this would not be in course of employment, but employer can still be vicariously liable provided that:

1. Tort stemmed from an act authorised by employer
2. Tort was closely connected to the work employee employed to do

Question 13

Vicarious Liability:

Lloyd v Grace

Answer 13

Employer can still be vicariously liable for intentional tort committed purely for employee’s benefit if the tort stemmed from an act authorised by the employer

Question 14

Vicarious Liability:

Lister v Helsey Hall

Answer 14

Employer can still be vicariously liable for intentional tort committed purely for employee’s benefit if the tort was closely connected to the work employee was employed to do

Question 15

Vicarious Liability:

Mattis v Pollock

Answer 15

The rule in Lister v Hesley Hall can be interpreted widely

Question 16

Vicarious Liability:

Rose v Plenty

Answer 16

Where an act is done to further employer’s business, it may be deemed as done in the course of employment

Question 17

Vicarious Liability:

Twine v Bean’s Express

Answer 17

Where act is something employee had no right to do, and act NOT done to further employer’s business, no vicarious liability

Question 18

Vicarious Liability:

Joel v Morison

Answer 18

Is an employee on a ‘frolic of his own’?

Question 19

Vicarious Liability:

Hilton v Thomas Burthon

Answer 19

Factors to consider for ‘frolic of his own’:

1. Extent of deviation; and
2. Purpose of deviation

Question 20

Vicarious Liability:

Harvey v R G O’Dell

Answer 20

For ‘frolic’, consider whether deviation was reasonably incident to work

Question 21

Vicarious Liability:

Lister v Romford Ice

Answer 21

Employers have the right at common law to claim an indemnity (full loss) from the employee who committed the tort.
Gentleman’s agreement not to do so unless misconduct by employee was wilful.