Vicarious Liability Flashcards
(17 cards)
Overview
- Did T commit a tort?
- If yes, was T in a relationship of employment or relationship akin to employment with D?
- If yes, did T commit the tort in the course of his employment with D
Where can one be found liable by using an independent contractor
D might nonetheless be liable if D owes a non-delegable duty of care to the claimant (C).
First stage of vicarious liability
Relationship of Employment
Barclays Bank plc
What does the leading case say on the first stage of VL
Barclays Bank
- Relationships of employment relationship or relationships akin to employment; and
- Independent contractors.
(EXCEMPTIONS FOR 2)
What does caselaw say about the definition of an independent contractor
1st type of kind of employment R1
Baroness Hale Barclays Bank
Barclays not liable for Doctor as he had own medical insurance
Could refuse to take patients
So if you have an IC you dont establish R1
Relationships Akin to Employment
2nd type of employment R1
** Catholic Child Welfare Society**
D be liable where employee akin to employmet
Examples of Relationships akin to employment
Cox Working for no pay still counted because of selection, training and integration process.
**Armes ** foster parents akin to employment for local authority that helped selected them + paid them a stipend
The 5 Incidents Test
- The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.
- The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
- The activity was part of some business activity of the employer (which need not be of a commercial nature).
- The employer had created the risk that employee would commit the tort by engaging him.
- The employee will have been under the employer’s control.
Various Claimants v Catholic Child Welfare Society
Restriction of 5 incidents test
akin to employment
scope of application of the 5 incidents. Baroness Hale held the following:
1. The 5 incidents may remain helpful in identifying a relationship akin to employment, but the key will usually lie in understanding the details of the relationship.
2. Those “incidents” were “policy reasons” and there has been a tendency to elide policy reasons for the doctrine of vicarious liability and principles that should guide its development.
3. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.
4. But it is possible that the five incidents can apply to agency or contract workers (gig economy workers) who are really part of the employer’s organisation.
The key point to note is that the 5 incidents test is thus still relevant in relation to identifying relationships akin to employment, although identifying an independent contractor will not require reference to the 5 incidents.
Borrowed Employees
Akin to employment
If a general employer (D1) lends his employee (T) to a temporary employer (D2) for a job and the employee (T) causes damage in the course of doing that job, who is liable?
In CCWS, it was held that independent consideration to the relationship of T with each defendant in order to decide which is liable. Both defendants can be liable if T was ‘so much a part of the work, business or organisation of both employers that it is just to make both employers’.
Second stage of VL
Acting in the Course of Employment
How to test second stage of VL
Lister v Hesley Hall - CLOSE CONNECTION TEST
It was held that the test is whether the tort so closely connected with T’s employment that it would be fair and just to hold D liable.
There are two factors which are key to determining whether such a close connection exists: 1. The creation of special risk of the wrongful conduct by the relationship of employment, and 2. The motive of T.
Factors to consider in the close connection test
Motive
Special Risk
Temporal and Causal Link
Motive in relation to close connection test
Morrisons
- the employee is engaged in furthering his employer’s business; and
- the employee is engaged solely in pursuing his own interests on a ‘frolic of his
own’.
How can a special risk affect element number 2 of VL
Did the relationship enhance the risk of abuse?
Lister v Hesley - mere presence is not enough
T’s position as the warden of the school put him in close contact with pupils creating the risk of abuse
How does Temporal and Causal Link affect element number 2 of Vicarious Liability
Not really
Morrisons v Various
When an independent contractor is liable by employer
Woodland v Essex
First Category - D employs IC for something inherently dangerous - Biffa Waste (hazardous chemicals)
Second Category - Antecedent relationship between D and a vulnerable D (1.) Control 2.) Custody of care 3.) No possibel to not gain an assumption Woodland v Essex
