Vicarious liability Flashcards
(39 cards)
what is vicarious liability?
The tortfeasor has a special relationship with the defendant - the tortfeasor is not being sued, its the organisation/employer.
how has the law changed int his area?
scope of liability has expanded to include relationships akin to employer-employee. Pro-claim.
how strict is liability here?
Strict, no default liability as it is a controversial area. D does not have to be blameworthy. More concerned with practical realities of claimant’s ability to receive compensation.
which case puts forward policy justifications and what are they?
Christian Brothers and Cox v MOJ.
Allocation of economic benefits and risks – because employers economically benefit from the performance of an employees task, they should also should some of that risk.
Employers typically have deep pockets – this spreads he financial burden in society. If the burden is placed solely on the tortfeasor, they could go bankrupt and the claimant would not see proper compensation.
Loss distribution (i.e. insurance can covet this) - employers are likely to have employee insurance.Which case lsits policy jusitfications and what are they?
Encouragement of good working practices – employee is often under the control of the employer, and as it encourages employers to be vigilant.
what is the decision framework:
stage 1: There must be an employer-employee relationship (or one akin to it) between the defendant and the tortfeasor.
stage 2
The employee must have committed a tort; and
stage 3
The tort must be committed while the employee was acting in the course of their employment.
Which workers are diffecutl to establish an employer/employee relationship for?
independent contractors/self employment/ agency workers
Which employer/employee relationship shave been distinguished between by the courts?
employees and independent contractors
- Barclays Bank v Various claimants.
Is there a test for stage 1?
no single test - Market investigations Ltd
What was the historical stance on stage 1?
Control test:
How much ‘control’ does the defendant have over the ‘employee’? See eg. Stephenson Jordan & Harrison Ltd
what other releavnt factors were considered in stage 1?
JGE v the trustees if the portsmouth RCatholic Dioscean trust
To what extent is the worker managed or accountable to the employer
The centrality of their actions tot he firm
Integration of their activities to the business?
What is dual employment?
A worker is hired out to another company.
what test is used for stage one in the case of dual employment?
The control test has still been held to be applicable in Mersey Docks v Coggins and Griffith.
HArbour authority = true employers
what is the general rule of dual employment?
Original employer (permanent) will remain reliable unless the heavy burden is met of showing that employment has been transferred to the temporary employer.
What Q was asked by the court in Hawlrey v Luminar Leisure?
who was entitle and therefore obliged to control the door stewards acts so as to prevent it (who was in control of him)? Nightclub was held to be liable.w
which factors were the court influenced gy in Hawley v Luminar leisure?
Bouncer didn’t have special skill, the club could have employed someone directly and that’s on them.
When the bouncer committed the tort, they were implicitly acting on the manager’s authority.
Bouncer was wearing uniform supplied by the club.c
can two employers be liable at the same time?
Yes - Viasystems
what is the modern approach for establishing an employee/employer relationship?
Christian Brothers:
Held: yes, both could be held vicariously liable. In reaching this conclusion the court held that it was not necessary to show that the brothers were employees of the institute at the time of the abuse but rather, it was enough that there was a relationship akin to employment here.
what were th epolicy jsutifications in christian brothers?
Lord Phillips:
The employer is more likely to have the means to compensate the victim
The tort will have been committed as a result of the activity done by the employee on behalf of the employer
Employee’s activity is part of the business activity conducted by the employer.
They take the risk of the tort.
The employer would have been under the control of the employer to a certain extent.
so whatis the current suffiecency for stage one?
it is enough thtat the relationship was one akin to employment.
hich case did christian brothers rely on in their judgement?
JGE v Portsmouth RC Dioscen trust: Oath brothers gave constituted something akin ot employment.
Which case confirmed christian brothers?
Cox v Ministry of Justice:
this relationship was deemed akin ot employment even though he wasnt working on a voluntary basis
and…
Armes v NOttingham:
relationship akin to employment between a local authority who were responsible for putting children in care, and the foster parents who had taken the children in.
And…
Barclays bank v Various claimants:
no VL for independent conyractors
Whcih key case clarified the tests that we have? What were the judgements?
Barry Congregatio of Jehovah witnesses v BXB:
CA found in her favour – stated there was vicarious liability and then the trustees appealed to the SC.
SC didn’t agree – they allowed the appeal – the Jehovah’s witness association were not liable. The correct defendant was the charity.
what features of employment were considered in Barry congregation?
He was carrying out work on behalf of and assigned to him by the organisation
He was performing duties that were integral to the aims/furtherance of their aims
There was an appointment process and they retained the power of removal]
There was a hierarchal structure into which role of an elder fitted.
what case established stage two?
Marjowski v Guy and St Thomas NHS Trust
