Vicarious Liability Flashcards
(19 cards)
What is vicarious liability
It is where a third person has legal responsibility for the unlawful actions of another
Where is VL commonly seen
It is commonly seen in the workplace
Who is the tortfeaser
The person who has committed the tort
The claimant
The person who has been affected by the actions of the tortfeasor
The defendant
The person who is responsible for the actions of the tortfeasor
P: it is fair to hold employers vicariously liable since they are best placed to bear any losses where the tortfeasor is a man of straw
DP: it is in the publics best interests for big companies to be liable for their employees wrong doings as it prevents it from happening again as the employers will be stricter on their workers
WDP: lastly, it is also fair to impose vicarious liability on employers as this encourages and maintains high standards and discourages poor employment practices as well as unsafe and undesirable workplace practices
P: VL is unfair on employers when it goes against the basic fault principle in tort law because a defendant should be blameworthy to be liable
DP: it seems harsh to hold employers responsible where employees have acted in spite of express prohibitation
WDP: however, they could claim the money back through wage deductions. Meaning the employer is unlikely to actually suffer loss if this is an option for them
What are the two criteria that must be established when deciding if an employer will be vicariously liable
1) the relationship between the defendant and the tortfeasor: the tortfeasor is (or was at the time of the incident) an employee of the employer
2) the link between the commission of the tort and that relationship: the tortious actions must either fall within the course of employment or for criminal acts, there must be sufficiently closely connected to the employment
What are the 3 tests for traditional employment
- Control test
- Integration test
- Economic reality test
Employment status
There must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of another
The control test:
This is where the ‘master’ (employer) has control over the actions of the employee. This could be in regards to:
- the power to select the employee
- controlling the method of working
- the right to suspend or dismiss
- the payment of wages
Hawley v Luminar Leisure LTD
Facts: a bouncer assaulted a customer outside a club. He was employed by specialist suppliers
Held: the court decided that the club employed him as they exercised so much control over how he should do his work. The club was vicariously liable.
The integration test
- this test was established by Lord Denning in Stevenson Jordan and Harrison LTD v Mcdonald and evans
- it states that a worker will be an employee if his work is fully integrated into the business
- if a persons work is only an accessory to the business (temporary) that person is not an employee
P: this test is problematic as it would be difficult to apply to certain jobs such as christmas temps as they could be responsible for the damage caused to another but companies can avoid liability due to the employee not being fully integrated into the business
DP: this could then impact methods of employment as employers could find that a zero hour contract is beneficial for them or attractive to them in order to not have to pay if an incident occurs
WDP: however, this test is really simple to understand for the lay person which ensures the law is accessible to all and therefore there is more likely to be access to justice
Economic reality test:
- This test considers various factors which may indicate employment or self employment
- it was established in Ready mixed concrete v MPNI
- the courts will look at factors such as:
1. Ownership of tools/ equipment
2. Method of employment
3. Tax, NI and pension contribution
4. How the person describes themselves
5. Amount of independence and flexibility
P: although having multiple tests can be useful in that it allows the claimant to have more chances of proving if the employer will be accountable for the actions of an employee it can bring about inconsistent decisions
DP: this is an issue because it conflicts with the ROL as the law is no longer certain and ascertainable as we do not know which test the courts will use to establish employment status
WDP: As a result, lawyers cannot advice their clients on the likelihood of their case. This limit a claimants access to justice
Non traditional employment:
Where the defendant does not fit within the traditional employment tests the court has two other paths it may choose to take; akin to employment or independent contractors
Is the employer liable for akin to employment and independent contractors
Akin = employer is liable
IC = employer is not liable
‘Akin to employment’:
If the courts believe:
- the relationship between the tortfeasor and the defendant is similar to employment and
- if there is a relationship, there must be a sufficiently close connection between the wrongful act and the relationship between the tortfeasor and employer
If the above criteria is satisfied, then the court will say the relationship is ‘akin’ to employment but only where it is fair, just and reasonable for them to do so
