VICARIOUS LIABILITY Flashcards
(20 cards)
what is vicarious liability
vicarious liability arises where an employer is liable for the tort and crime of their employees, first defined by Sir John Salmond in 1907, recently developed from Lister v Hesley Hall (2002) to Baclays Bank v Various Claimant (2020) . it’s needed to ensure c is compensated
what are the 2 rules
the two rules are that:
- the TF must be an employee or in a positions ‘akin to employment’, and the action must’ve occurred
- ‘during the course of employment’ or there must be a ‘close or sufficient connection’ between the wrongdoing and employment (Barclays Bank v Various Claimants)
Rule one —> traditional employment
Under traditional under the Salmond approach the TF must have been an employee. in considering whether the TF is an
employee the court will use the control test (Mersey Docks v Coggins and Griffiths),
the integration test, (Stevenson Jordan v MacDonald and Evans)
or the economic reality (multiple) test (Ready mixed concrete v Minister of Pension)
rule one —> modern akin to employment test
where there is doubt about employment the akin to employment test will be used as considered in JGE v Portsmouth Catholic Trust
rule one —> what does the christian brothers case set out
in the Christian brothers case, Lord Phillips stated 5 criteria, which can make it fair just and reasonable to find a relationship akin to employment:
(1) id the employer in more likely than the employee to have means to compensate the victim and can be expected to have insurance
(2) the employee was under control of the employer
(3) the employee’s activity was part of the employers business activity
(4) the activity was undertaken on the employers behalf
(5) the risk was created by the employer employing the employee to carry out the activity
what did the case of Cox v Ministry of justice do
this test was subsequently confirmed in the case of Cox v Ministry of Justice, which focused on tests 3,4&5 and in Barclays Bank v Various Claimants where Lady Hale clarified that each case should be judged separately on its own facts
what is an example of someone who’s not akin to employment
an example of someone who’s not in a position akin to employment are bailiffs, as in Kalfagi v JBW Group. they can refuse work and among other things, they have to take out their own insurance
what is said about employers and independent contractors
employers aren’t vicariously liable for the torts of independent contractors confirmed in Barclays Bank v Various Claimant. an independent contractor is not an employee and is liable for their own actions
what does the case of Viasystems v Thermal Transfer set out
responsibility for the actions of an employee can be shared by more than one employer, as in Viasystems v Thermal Transfer
hat must happen for the second rule
for the second rule the tort must’ve occurred during the course of employment or there must be a close connection and the course of employment test established that
satisfied —> what is said about employees that have committed negligent acts when acting against orders
employees that have committed negligent acts, when acting against orders, but in the interest of the employer, were acting in the course of employment, especially where it benefitted the employer Rose v Plenty
satisfied —> what is said about employees that have committed negligent acts when doing what they were employed
employees that have committed negligent acts when doing what they were employed to do, were acting in the course of employment - Limpus v London General Omnibus
satisfied —> what is said about employees that have committed careless acts when doing what they are employed to do
employees that have committed careless acts when doing what they are employed to do, were acting in the course of employment - Century Insurance v Northern Ireland Transport
not satisfied —> employees who have acted on a frolic of their own
employees who have acted on a frolic of their own and commit the tort outside the scope of their employment aren’t in the course of employment - Hilton v Thomas Burton
not satisfied —> employees that have acted against orders
employees that have acted against orders and whose actions weren’t in the benefit of the employer weren’t in the course of employment - Beard v London General Omnibus
not satisfied—> unauthorised actions
employees who committed an unauthorised action with no benefit to the employer weren’t actin the the course f employment - Twine v Beans Express
modern close connection
however the modern close connection can now be used when TFs actions may not fit in the traditional test. The court will ask what was the nature of TFs job? and was there a sufficient connection between the wrongdoing and the employment making it right for the employer to be held liable under principle of social justice
Dubai Aluminium
Dubai Aluminium state that the general approach is whether the wrongful conduct of the employee was so closely connected with acts the employee was authorised to do that, for the purpose of the liability of the employers 3rd parties, it may be fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment
where was Dubai Aluminium first considered
the test was first considered in Lister v Halsey Hall and subsequently confirmed in Barclays Bank v Various Claimant and Morrisons supermarket v Various Claimant
this test can apply t the torts (crimes) f an employee
times where d has been held vicariously liable for TFs crimes are seen in case such as Brown v Robinson & Matis v Pollock
what was seen in N v CC West Mersyside Police
however off duty police officer in N v CC Merseyside Police were not the responsibility of the chief constable
