Vicarious liability

Question 1

vicarious liability definition

Answer 1

where one party is held liable for the tort of another party - strict liability

Question 2

structure for vicarious liability

Answer 2

1. tort was committed
2. by an employee or someone in a relationship akin to employment
3. in the course of their employment or quasi-employment

Question 3

what is the test to identify an employment relationship

Answer 3

Ready Mixed concrete v Minister of Pensions

Question 4

what to consider for the Economic Realities test

Answer 4

-Remuneration for personal service and mutuality of obligations

Control (more control the employer has, more likely they are an employee)

Other contractual factors:
- Tools and equipment
- PAYE
- Integration as an organization

Label is irrelevant

Question 5

Where does the test for relationship akin to employment come from

Answer 5

Barclays Bank v Various

Question 6

What is the test for a relationship akin to employment?

Answer 6

a) The employer is more likely to have the means to compensate the claimant than the tortfeasor
b) The tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf
c) The tortfeasor’s activity is part of the business activity of the employer
d) By allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed
e) The tortfeasor is, to a greater or lesser degree, under the control of the employer

Question 7

General rule when lending employees

Answer 7

Primary employer will remain vicariously liable and it will be difficult for them to rebut this (Mersey Docks and Harbour Board v Coggins and Griffiths)

Possible for both primary and secondary employers to be vicariously liable

Question 8

Test to establish whether the tort was committed in the course of the employment or quasi-employment

Answer 8

1. what is the nature of the employee’s job?
2. was there sufficient closeness of connection between the position in which the employee was employed and the wrongful act

Mohammud v Morrisons

Question 9

Employer’s indemnity

Answer 9

• under s 1(1) Civil Liability (Contribution Act), an employer may be entitled to seek an indemnity from their employee should they be forced to pay damages in respect of the employee’s tort.
• BUT generally not done