Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

When liability is imposed on one person for the wrongful acts of another, it occurs when there is a relationship between the tortfeasor and the party who became vicariously liable

Question 2

State some reasons why liability is imposed on the employers

Answer 2

1)Practical basis = more funds then employee
2) Employer benefits from employees work so it is fair they should bear the burden if anything goes wrong
3)Encourages employers to choose competent staff

Question 3

What are the 3 requirements to establish the existence of Vicarious Liability?

Answer 3

1 - Tort
2 - Employee
3 - Course of employment

Question 4

Who is an employee?

Answer 4

The C must show that the tortfeasor is an employee, to determine this they must distinguish between:
a contract for service
a contract of service

Question 5

What are the three tests that have evolved to make distinction between a contract for service or a contract of service?

Answer 5

1) control test
2) Organisation test
3) Multiple test

Question 6

What was said in the case of Hall?

Answer 6

“There is no single satisfactory test”

Question 7

What is the control test?

Answer 7

Must traditional and looks at the degree of control the employer exercises over the worker

Question 8

What was quoted in the case of Yewens?

Answer 8

“A servant is subject to the command of his master as to the manner in which he shall do his work”

Question 9

State the reasons why the control test is no longer the most adequate test to determine a status of employment of a worker

Answer 9

1) Since must jobs enjoy a degree of autonomy due to the required skill and technical expertise, the employer is often not able to “control” the employee

Question 10

What is the organisation test?

Answer 10

Introduced by Lord Denning in Stevenson, Jordan and Harrison
It was developed because the control test was deemed inappropriate in cases where the employee was a skilled professional
The Organisation test looks to see if the employee is “part of the organisation” and involved with the core business activity of the employer

Question 11

What happened in the case of Whittaker?

Answer 11

A trapeze artist broker her wrist due to a fall during her act. It was held she was an integral part of the circus business and thus an employee

Question 12

What is the downfall of the organisation test?

Answer 12

Has the potential to overlook those in peripheral roles

Question 13

What is the multiple test?

Answer 13

Default test used today and is based on the “economic reality” of the situation, the court will look at al the circumstances to form an overall impression

Question 14

What case created the economic test?

Answer 14

Ready Mixed Concrete Ltd

Question 15

What happened in the case of Ready Mixed Concrete Ltd?

Answer 15

The court had to decide the status of a lorry driver for national insurance purposes
factors suggesting contract for service=
his contract said he was self-employed, he was free to choose his own hours, paid based on what he did etc
factors suggesting contract of service=
He had to paint the lorry with company colours and had to obey reasonable orders
Court ruled that he was self-employed as his power to delegate his work was regarded as the decisive factor

Question 16

What three conditions have emerged that require satisfying before an employment relationship is identified?

Answer 16

1) employee agrees to provide work in return for a wage
2)employee accepts that the work is subject to the control of the employer
3)Contract is consistent of that of a contract of employment

Question 17

What supreme court case recently highlighted the breadth of the vicarious liability relationship?

Answer 17

Cox
Prisoner helping in kitchen injured the catering supervisor. Prison deemed VL as the relationship between the prisoner and prison service was akin to an employment relationship

Question 18

What is the laws opinion on liability for the torts of independent contractors?

Answer 18

Employers will not normally be liable due to the lack of control
e.g Barclays Bank

Question 19

What happened in the case of Barclays Bank?

Answer 19

A qualified doctor conducted medical examinations for Barclays bank employees receiving a fee per examination. Number of employees made allegations of serious sexual assault against the doctor. Sc decided that the doctor was an independent contractor.

Question 20

When can an employer be liable for the actions of a independent contractor?

Answer 20

When the employer has hired the independent contractor for the purpose of carrying out a tort, imposing liability is entirely reasonable
e.g ellis

Question 21

What happened in the case of Ellis?

Answer 21

Without having actual authority to do so, D employer hired independent contractor to dig trenches in the road and lay gas pipes

Question 22

What test determines if the wrongful act by employer was done during the course of employment or “On a frolic of his own”?

Answer 22

Salmond test
1) A wrongful act authorised by the employer
2) A lawful act authorised by the employer but carried out in an unauthorised way

Question 23

State a case example of a wrongful act authorised by the employer

Answer 23

Poland
The employee hit a boy to stop him stealing from employers wagon, causing the boy to be run over and hurt his leg. The employer was held vicariously liable as according to the employee, he had been impliedly authorised by the employer.

Question 24

State a case example of a lawful act authorised by the employer but carried out in unauthorised way

Answer 24

Century Insurance co
Driver of a petrol tank lit and cigarette and threw away a match causing an explosion, damaging C’s property. Even though his employer had forbidden him to smoke whilst working, the employer was VL for the damage as the employee was doing his job, even though he was performing the role negligently.

Question 25

What is a "frolic of one's own"?

Answer 25

the fault lies with the underlying person not the employer

Question 26

State an example of a "frolic of one's own"

Answer 26

Storey v Ashton Employer sent wo employees to deliver some wine but on their way back they went on a diversion to do some business of their own, whilst doing so they ran C over. The employer was not responsible as the employee was on a frolic.

Question 27

State an example were it was deemed not a "frolic of one's own"

Answer 27

Commuting to and from work is not normally considered to be "in the course of employment" however if travelling between sites during working hours, detours from a route or gives a lift to an unauthorised person then the employer many be liable e.g Smith Two employees returning home after working virtually for 24 hrs without a break, one of the employees crashed the car they were travelling in, seriously injuring both. HL deemed them within the course of employment as they were being paid to travel

Question 28

What happened in the case of Twine?

Answer 28

An employee gave C's husband a lift in a van but because of the husband was killed. The driver had been told not to give anyone lifts who was not within a group of authorised passengers and there was a notice on the side of the van. The deceased was not among them. They employer was not liable as the employee was doing an authorised act and was therefore outside the course of his employment (the lift had not been given for the purpose which would benefit the employer)

Question 29

What happened in the case of Rose?

Answer 29

A milkman had been told not to allow passengers on his float nor let children deliver the milk. He disregarded these orders and paid C a 13 year old boy to help him. C was injured whilst riding because of the milkman's negligent driving. Employer = VL as the boy helping delivering the milk was furthering the employer's business

Question 30

When can an employer be held responsible in criminal law?

Answer 30

When expressly telling the employee to do the criminal act, however in the case of Lister, the Hl proposed that the test should be whether the acts "were so closely connected with his employment that it would be fair and just to hold the employer VL"

Question 31

What happened in the case of Lister?

Answer 31

Cs were boys at a school and had been sexually abused by the warden, an employee of the school. Cs claimed Ds were VL for the abuse, the school had the job of looking after the boys in its care and it had delegated part of this task to the warden. The sexual abuse had been "inextricably woven" with the task. The close link between the warden's work and the abuse made it fair to impose a duty as he could only do the "wrong" due to the nature of his employment

Question 32

What happened in the case of Mattis?

Answer 32

C was stabbed by a doorman. The doorman was employed to keep order at the door and to break up any fights. There was evidence to suggest that the employer had suggested that customers should be aware that the doorman was prepared to use force and be aggressive. D seriously assaulted C's friend and C tried to intervene, doorman was chased away. However later returned and stabbed C. CA held that employer was vicariously liable as there was a sufficient connection between what the D did and what was expected of him.

Question 33

What was happened in the case of WM Morrison Supermarkets plc?

Answer 33

An Morrison employee worked in IT kept a personal copy of payroll data which he then uploaded to a website. SC ruled Morrisons not VL as the employees actions were not furthering the business.

Question 34

What act allows the employer to be awarded the "right of recovery"?

Answer 34

Civil Liability Contribution Act 1978 *Note that S.2 dictates that the amount recoverable must .. have regard to the extent of that person's responsibilities for the damage in question