Vicarious Liability

Question 1

Vicarious liability plan

Answer 1

Employers are vicariously liable for the torts of their employees that are committed during the course of employment
- under the Civil Liability (Contribution) Act 1978, the employer can recover this from the employee, eg via wage reductions

Lord Phillips - ‘The Five Incidents’ (reasons for this):
1) employer is more likely insured against liability and able to compensate V
2) tort arose from employee’s work activities on employer’s behalf
3) employee’s activity likely to be part of employer’s business
4) by assigning the activity, employer created risk of tort committed by employee
5) to some degree, employee was under employer’s control

To establish liability:
1. Was the tort committed? (Likely negligence)
2. Was the tortfeaser an employee?
3. Was the employer acting in the course of employment when tort was committed?
- ‘frolic of their own’ if not - Joel v Morison

‘Salmond test’ - employer will usually be liable for:
- wrongful acts which are actually authorized by the employer
- wrongful acts done in an authorized way can still make the employer liable, even if expressly forbidden - Rose v Plenty

• ‘Close connection test’ - checks how closely connected the tort links to the employee’s duties (when unclear if tort was in course of employment):
  1) What was the employee broadly employed/entrusted to do? - Morrison Supermarkets v Various Claimants
  2) Was the wrongful act sufficiently connected to their role, making employer liability fair? - Limpus v London General Omnibus

Fault:
C doesn’t need to prove the employer was at fault if the tort was committed by employee during course of employment

Employer may still be at fault in several ways:
1. They hired someone liable of/who would commit a tort at work
2. They possible provided inadequate or inappropriate training
3. They failed to supervise the employee effectively
- However, constant supervision is impractical, especially for experienced fault

Independent contractors:
No liability where the tortfeasor is a part of a business entirely independent of the D’s business

To decide if an employee:
- Control test
- Does the employer control what, how and when the work is done? (The more control, more likely an employee)

• Integration test
  
  • Is the worker part of the organization or just an accessory to it?
• Multiple test
  
  • A combination of factors to determine employment status: level of control, whether their provide their own equipment, where they take financial risks to have chance of profit, mutuality of obligation (employer obliges to provide work/pay, employee obliged to do that work) - Ready Mix Concrete v Minister of Pensions
• Relationship akin to employment
  
  • When someone isn’t a formal employee but works in a way that’s closely connected to an organization, allowing that organization to be held vicariously liable (situations where there’s control, integration and benefit similar to regular employment) - Various Claimants v Catholic Child Welfare Society

Question 2

Various claimants v Catholic Child Welfare Society

Answer 2

Close connection test: the act of SA was sufficiently close connection to the relationship of employment as there was a significant creation/enhancement of risk of abuse by the relationship

Akin: Vicarious liability can arise even in the absence of an employment contract where there is a relationship sufficiently akin to employment

Question 3

Morrison Supermarkets v Various Claimants

Answer 3

Acting in course of employment

Personal motive meant ‘close connection’ test wasn’t satisfied

Question 4

Ready Mix Concrete v Minister of Pensions

Answer 4

Employee or not

A worker can be an employee if there’s a mutual obligation and sufficient control, even with some independence - driver was deemed an employee due to ongoing obligations and employer control

Question 5

Limpus v London General Omnibus

Answer 5

Employer is liable even if employee acts against instructions, as long as it’s within the scope of employment

Question 6

Rose v Plenty

Answer 6

Employer can be liable if the employee’s act benefits the employer, even is forbidden

Question 7

Joel v Morison

Answer 7

Frolic

The driver was doing the employer’s business, so no ‘frolic’