Vicarious Liability

Question 1

What is vicarious liability

Answer 1

Vicarious liability does not extinguish the employee’s liability; he remains jointly liable with his employer for his actions. In theory this means that C cam choose to sue the employee or the employer.

Question 2

What factors need to be satisfied if an employer is to be vicariously liable for the actions of an employee

Answer 2

• The worker (primarily defendant) must be an employee.
• If so when he/she committed the tort, he/she must have been acting in the course of employment.

Question 3

Is the primary defendant an employee

Answer 3

• There are two types of workers.
• Employees work under a contract of service (an employment contract).
• Independent contractor works under a contract for services (Ready Mixed Concrete v Minister of Pensions).

Question 4

Tests that are used to establish if a person is an employee or an independent contractor

Answer 4

• The control test.
• The integration test.
• The economic reality test.

Question 5

Control test

Answer 5

• Does the master control the actual performance of the work done and how the work is done.
• An employee will be told both what to do and how to do it, whereas an independent contractor is simply told what to do.
• Walker v Crystal Palace.

Question 6

Integration test

Answer 6

• Where the workers work is an essential part of a business, rather than that of an independent contractor’s work which is incidental to it.
• It states that the more closely a worker is involved with the core business of the employer, the more likely he is to be an employee.

Question 7

Economic reality test

Answer 7

• This is where the court will look at the following factors of the workers relationship with the defendant to determine whether they are an employee or not.

Question 8

Was the primary defendant ‘acting in the course of employment’

Answer 8

• This is when they have committed a tort doing their job.

Question 9

Authorised acts carried out in an unauthorised manner

Answer 9

Two examples of where an employee has carries out an authorised act in an unauthorised way:
- The employee acted against the employer’s orders. (Rose v Plenty)
- The employee acted negligently whilst doing their job. (Hilton v Thomas Burton)

Question 10

Close connection between the tort committed and the role of the employee

Answer 10

• However, if the employee commits a crime or a tort during their work, the employer may be liable to the victim/claimant if there is a ‘close connection’ between the crime and what the employee was employed to do.
• Lister v Hesley Hall.