Vicarious Liability Flashcards
(13 cards)
Introduce
Vicarious Liability
Apart of VL
A third party is liable as they have legal responsibility for another’s unlawful action
The C
Is the person injured by the employee.
The T
Is tortfeasor, who is the employee that caused said injury
The D
Is the employer
Describe
The Vicarious Liability test + Employment Relationship
Barclays Bank PLC v Various Claimants (two part test)
Apart of VL
Barclays Bank PLC v Various Claimants - 1) Is there a relationship of employment or akin to employment between D and Tortfeasor? 2) The Tort must have occurred within course of employment, or in criminal intention torts, closely connected to employment role.
Employment Relationship
Courts must prove there is a relationship of employment between D and tortfeasor.
Describe
Traditional Employment Test
Control + Economic
Apart of VL
- Contract between D and T or if not any,
1) Control Test - Does employer have right to control what the employee does and way they do it?
2) Economic Test - Courts consider number of economical factors, loan of equipment, payment, working hours, payment of national insurance, uniform and holidays.
Describe
Relationship akin to Employment (if traditional was not found) + Independent Contractors
Christians Brothers Case (5), Cox v MOJ, Barclays v Various Claimants
Apart of VL
Christians Brothers Case - 1) Is D in better position to pay damage than the tortfeasor 2) The tort was committed when tortfeasor was acting on behalf of D. 3) T’s activity is part of integrated into D’s business. 4) D by employing T to carry out activity, will have agreed to a risk for a tort to be committed. 5) T is under control of D Cox v MOJ - When applying, part 2,3,4 most relevant and should be emphasised by courts.
Independent Contractors
~~~
Barclays v Various Claimants - Employer can not be liable for actions of independent contractor.
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Describe
Close Connection (Intentional Tort)
Morrisons v Various Claimants
Apart of VL
Morrisons v Various Claimants - If wrongful conduct of the employee is so closely connected to acts authorised to do so, then its acting in course of employment.
Describe
Course of Employment (Non Intentional Tort)
Salmond Test, Limpus v London General Omnibus Company
Century Insurance Co LTD v Northern Ireland Transport Board
Salmond Test
Vicariously Liable if acting in course of employment when tort occurred, such as acts T authorised to do by D.
Limpus v London General Omnibus Company - Employer liable if T did what employed to do but acted against an order. Century Insurance Co Ltd v Northern Ireland Transport Board - Employer liable if employee does job in negligent manor.
Describe
Acts not in Course of Employment
Hilton v Thomas Burton Ltd, Morrisons v Various Claimants
Apart of VL
Hilton v Thomas Burton Ltd - The employer will not be liable if employee is acting on their own frolic Morrisons v Various Claimants - If T action was designed to cause harm to employer in vengeance, then not course of employment.
Describe
Remedies
Civil Liability (Contribution)Act 1978
Apart of VL
- If successful C gets compensatory damage
Civil Liability (Contribution) Act 1978 - Employer can recover compensation by deducting from T’s wage
Apply to an Exam Question
Flip
Apart of VL
Parties Involved
The D is… why?
The T is… why?
The C is… why?
Relationship Present + Contract (if applicable)
Here there is\n’t a contractual relationship because… why?
Relationship Present + No Contract (If applicable)
Why is D in better position than T to pay damages?
Was Tort committed when T acting on behalf of D?
Is T’s activity part of D’s business?
By employing T, was there a risk that tort could be committed? Why?
Is T under control of D? Wages? Can D tell them what and when to do work?
Therefore here there is/isn’t a relationship of employment.
No Relationship at all
State the person is an independent contractor and not an employee so D is not liable.
Intentional Tort : Close Connection
The tort that was committed was…?
The tort could be considered as…? (What offence)
Here the tort is/n’t connected to D’s employment because…
(If Relevant) Here T was acting out of a personal vendetta because…
This would or would not be considered closely connected to acts of employment.
Non-Intentional Tort: Course of Employment
The tort that was commited was…?
[IF RELEVANT]
Was T doing an authorised act? Why are they doing this? Did employer authorise this?
Was T acting against orders? Why?
Was T acting negligently? Why?
Were they acting on their own frolic? Why?
The T was/wasn’t acting in Course of Employment.
Remedies
If successful the C would receive compensatory damages, the employer can take this from T’s wages.
Evaluate
Unfair for Employers
- Contradicts basic fault based liability, unfair on employers
- Did employer have control over damage? Are they liable? Why was this unfair in Limpus v London General Omnibus Company?
- Do employers actually have control? Why is it fair especially since D usually has? What should D have done to T in training? This heightens?
Apart of VL
- Sued for damage had no control over, no fault and still liable, in case, Employer trained them correctly and employee went against order so unfair to make D liable.
- Still have control of employees, fair as C deserves compensation C, and D has insurance to mitigate this, D should have trained T better, which heightens standards which is good for all.
Evaluate
Relationship of Employment Test
- Current establishing test is modern and flexible.
- Which case outlines a modern test? What is modern when talking about employment? Gives C more? Is it easy to understand and apply?
- why is this unfair for employers? Makes it too easy for C to? Puts too much what on D?
Apart of VL
- Christians Brothers case, modern is non-traditional employment; C gets more opportunity for compensation and it is easy to understand and apply.
- Test usually finds some kind of relationship making it easy for C to claim and find D liable in many cases, this puts too much liability on D.
Evaluate
Course of Employment Test
- Test for non-intentional tort is fair
- When is D only liable? What is there no liability for? Good for cases like Hilton v Thomas? What does T deserve? What about personal vendetta?
- What would the D be liable for when it comes to Limpus v London General Omnibus? Why is this unfair?
Apart of VL
- If tort committed in course of employment, frolic of their own, good as D had no control over them so absurd to be liable. T deserved to be liable, personal vendetta also gives no liability which is fair.
- Authorised act done in an unauthorised way, D instructed T but T didn’t follow and did it anyways, unfair as employer did their best to avoid tort yet is liable.
Evaluate
Vicarious Liability is justified.
- Despite Heavily Criticised, largely justified.
- Why should D be responsible? What does D have as well? And what should have D done better to T?
- Who criticises this? Why is this unfair and hypocritical?
Apart of VL
- As D employed the T, so they should have known if T wasn’t a good character , also has insurance so won’t lose much money, and should have trained T more carefully.
- Legal academics, D liable without fault, goes against the principle of law and is hypocritical, this is unfair on D.
