Vicarious Liability

Question 1

What is vicarious liability

Answer 1

Defendant (employer) liable for the torts or sometimes crimes of the tortfeasor (employee) against the claimant

Question 2

How did Lord Phillips justify vicarious liability

Answer 2

• Deeper pockets
• Bear the risk of enterprise
• Degree of control

Question 3

What does vicarious liability cover

Answer 3

• Negligence
• Not following instructions
• Deviating from work (Limpus v London Omnibus)
• Prohibited acts benefitting employer (Rose v Plenty)
• Authorised acts done in an overzealous way (Vasey v Century Inns)
• Criminal acts closely connected to employment (Mohammed v Morrisons)
• Hospitals liable for negligence (Barnett v Chelsea + Kensington Hospitals)

Question 4

What does vicarious liability not cover

Answer 4

• Prohibited acts not benefitting the employer
• Acts during employment purely for own benefit
• Criminal acts not closely connected to employment (Various C’s v Morrisons)
• Independent contractors (Various C’s v Barclays Bank plc)

Question 5

What are the elements of vicarious liability

Answer 5

1 - Tort
2 - Relationship
3 - Employment

Question 6

Element 1

Answer 6

Tort
- TF committed a tort/crime causing injury/damage
- Tort (Barnett v Chelsea + Kensington Hospitals)
- Crime = rare and must be closely connected (Mohammed v Morrisons, Liver v Hesley Hall, Various C’s v Morrisons)

Question 7

Element 2

Answer 7

Relationship
- Employee
-> Control test = does the employer have a degree of control over the TF (Yewens v Noakes, Mersey Docs + Harbour Board v Coggins + Griffiths Ltd, Hawley v Luminar Leisure)
-> Integration test = how integrated the TF is into the business
-> Economic reality test = wage + control + contract (Ready Mixed Concrete v Minister of Pensions (tools, payment, tax, NI, description, independence), Carmichael v National Power, Ferguson v Dawson)

• Relationship akin to employment
  -> Fair, just and reasonable (Lister v Hesley Hall, Cox v Minister of Justice, Various C’s v Child Catholic Welfare Society, Amer v Nottingham CC)
• Independent contractor = (employee = contract of service, contractor = contract to provide service) (Various C’s v Barclay’s Bank plc)

Question 8

3

Answer 8

Employment
- Salmond test = not in course of employment if unauthorised
- Course of employment:
|—> Authorised acts done in a careless way (Century Insurance)
|—> Authorised acts done in an overzealous way (Vasey v Century Inns)
|—> Unauthorised acts which benefit the employer (Rose v Plenty)
- Not in course of employment
|—> Expressly prohibited (Iqbal)
|—> Frolic of your own (Storey v Ashton)
- Closely connected = criminal is against Salmond test, public policy (Lister v Hesley Halls, Mohammed v Morrisons, Various C’s v Morrisons)