Vicarious liability Flashcards
(21 cards)
vicarious liability
Vicarious liability is a means of imposing liability on someone other than the tortfeasor (man of straw). Man of straw has no value; the employer is one who liable for compensation of the claimant.
Why does the law allow for vicarious liability?
Traditionally ‘control’ by the employer.
Employer responsible for hiring, training and firing plus internal disciplinary systems.
Where will compensation come from (availability of insurance, deeper pockets)
Makes the conduct of ligation easier
elements of various liability
- A tot must been committed by Someone
2.The tortfeasor must be an employee of the defendant or in a sufficiently similar relationship
- The tort must been committed in course of employment (not on a floric of his own) or there was a sufficiently close connection between the act of the tortfeasor and the acts he was employed to do
Test used to determine if the tortfeasor is an employee
1.Control test-How muxh control does the employer exercise over the other’s person work
- The integration test - is the person’s work so full integrated into the business that they should be considered an employee
- Multiple test or economic reality various factors are considered to decided where the tortfeasor
Various Factors :
How is the tortfeasor is paid
who pays the tax and NIC
who decides the working hours
Economic Reality and Multiple Test - Ready Mixed Concrete v Minister of pensions and national insurance
The issue was whether the owner,driver used by Ready Mix were employees or an independent contractors for national insurance purpose it was wasn’t a case where a case where a tort had been committed
Factors suggesting they were employees
only used the vechicile on company’s business
hd to wear a uniform
Factors suggesting they were independent contractors
they bought vechiles from the company
working hours were flexible
Sufficiently similar relationship
Case : Cox v Ministry of Justice
Now employment like relationship are covered too as confirmed in the case of Cox v Ministry of Justice - a prision worker was aasaulted by prisoners. The claimant managed a kitchen with four other members dropped a bag of heavy rice. The employer was liable ,it is enough to be carrying on activity further ance of interfere
- During the course of employment or a floric of his own
This is tested using the salmond test
The salmond test - In the course of employment v Floric of his own
The fundamental proposition: a master is not responsible for a wrongful act by his servant unless it is done in the course of employment
Salmond went on to say that it was deemed to be done in the course of employment if it was either
A wrongful act
An authorised act done in an unauthorised manner
The Salmond Test
A wrongful authorised act
Case: Poland V Parr
Employee assaulted a boy who tried to steal from his employer’s liability
employer as liable as it was an implied an authorised act conducted during the employee’s course of employment
The Salmond Test
An authorised act in an unauthorised manner
An unauthorised employer also be vicariously liable where an employee carries out their authorised act in an unauthorised way
The Salmond Test
An authorised act in an unauthorised manner
Case: Limpus V London general Omnibus Co
Bus driver was instructed not to race buses but did it anyway and caused an accident. The employer was liable to injured as it was during the course of employment
Beard v London General omnibus co compared to limpus V london general omnibus co
in Beard v London general co where a bus conductor drove the bus and insured the claimant . the employer was not liable as it was not during the course of employment
The Salmond Test
An authorised act in an unauthorised manner
Case: Century Insurance Co v Northern Ireland Transport Board
Tanker driver employed to deliver petrol lit cigarette caused an explosion
Court held the employee’s action was careless took place during the course of employment
The Salmond Test
An authorised act in an unauthorised manner
Case: Rose V Plenty
A dairy instructed its milkman not to use child helpers. Boy injured while helping a milkman on his rounds. The employer was liable as she benefited for the work.
The Salmond Test
An authorised act in an unauthorised manner
Case : Twine V Bean Express
Hitchhiker was killed through negligence of a driver which had been for blade to give lifts to employee was not acting in the course of his employment so employee was not liable
Vicarous liability for crime
Crimes committed by an employee, traditionally there was no liability -were more likely to be seen as a floric of the employee’s own
this approach has changed since the case of lister v helsey hall and employers are more likely to be held vicarious liabile for crimes
how easier to prove due to the close connection test
Lister v helsey hall
The warden of a school for children with emotional diffculties was convicted of sexual assaulting some children. The employer was held to be vicarously liable. The house of lord stated that an employer will be vicarous liable provided that there is a sufficiently close connection between the acts of the employee and the employment
The Close connection Test
1.Is there a sufficiently close connection between the job and crime
- If so the employer will be vicariously liable
This test has only been used when the tort committed is also a crime
Mattis v Pollock
The defendant is an owner of a night club, employed an unlincensed doorman told one of the claimant s friend that they were allowed in and became violent with them .The surrounding customers and fled by the scene struck several times . The defendant owe a person a duty of care
Barclays v various Claimants
A qualified doctor conducted medical examinations for Barclays Bank in respect of the prospective and current employees he received a fee per examination . A group of 126 female claimants made allegations of sexual assault against the doctor . The claimant were made to take examinations alone. the doctor was provided with a report from the bank. The banik were not liable for the doctor was not liable for. The doctors was not employee but an independent contractor and there was not in relationsip akin
Mohamud v WH Morrisons supermarkets plc
Supreme court - An employee at a petrol station assaulted causing him serious harm . The supreme court considered the job that the employee was asking and whether if there a sufficient connection between the job and the assault on the customer. The defendant was found vicariously liable . Mr Khan had abused his position but was purporting to act on his employer’s business. The close connection test was approved by the supreme court but its key elements
- What is the nature of the job entry led to the tortfeasor in the broadest terms
- is there as sufficient connection between the position which the tortfeasor or employer
Morrisions v Various Claimant
An unhappy employee uploaded personal details of colleague to a file sharing site and sent the data to three national newspaper. The employee was imprisoned but the colleague also sued the employee and employer for breach of statutory duty under data protection act,misuse of personal information and breacg of confidence. The supreme court considered what close connection meant and stated that employers would not be liable for a wrongful act
