Vicarious Liability

Question 1

Definition of Vicarious Liability

Answer 1

VL is where the employer is liable for the negligence of employees.

Two conditions must be proved, as clarified in Trustee’s of Barry Congregation.

Question 2

Stage 1 of Vicarious Liability (Traditional Relationship)

Answer 2

It must be decided whether the worker is an employee or an independent contractor. It must be FAIR, JUST and REASONABLE to find the employer responsible.

Traditional relationships are established in the Multiple Test, under Ready Mixed Concrete. There are up to 6 conditions that may apply.

1) Whether a wage is paid, tax, national insurance.
2) Who provides tools/ equipment?
3) Whether the worker has to obey orders.
4) Exercise of control over how the work is done.
5) Acceptance of any Business Risk
6) Power to hire/fire assistants.

Question 3

Stage 1 of Vicarious Liability (Doubtful Relationship)

Answer 3

It must be decided whether the worker is an employee or an independent contractor. It must be FAIR, JUST and REASONABLE to find the employer responsible.

In Doubtful Cases, the akin to employment test is used, established in Christian Brothers.
There are 5 conditions that may be relevant:
1) Employee is more likely to have insurance.
2) Act is committed by employee on behalf of the employee.
3) Employee’s activity is likely to be a part of the business activity of the employer.
4) The employer, by employing the employee, created the risk of the act being committed.
5) The employee was under the control of the employer.

Question 4

Stage 1 of Vicarious Liability (Independent Contractor)

Answer 4

It must be decided whether the worker is an employee or an independent contractor. It must be FAIR, JUST and REASONABLE to find the employer responsible.

If the T fits none of the other categories, they will be considered an IC, and will not be vicariously liable (Barclays Bank v VC).

Question 5

Stage 2 of Vicarious Liability

Answer 5

Stage 2 of VL is close connection & course of employment.

We must question ‘Whether the employees acts were so closely connected with acts the employee was authorised to do that, it may fairly and properly be regarded as being done in the ordinary course of his employment’.
This is to establish a link between the wrongful conduct and the T’s authorised activities.

Question 6

Vicarious Liability - Acts that are or aren’t closely connected to the course of their employment.

Answer 6

ARE:
- Acting excessively (Vasey).
- Acting negligently (Centuries Insurance).
- Acting in an unauthorised way (Rose v Plenty).
- Criminal act (Morrisons v Mohamud).
- Abuse to students (Lister v Hedgeley Hall).

AREN’T:
- Doing something unrelated (Heasemans v Clarity Cleaning).
- Frolic of their own (Storey v Ashton).
- Personal Vendetta (Morrisons v Various Claimants).
- Abuse to adult outside of work.(Trustee’s of Barry Congregation)

Side Rule: Travelling to and from work will not be in the course of employment unless T is paid to travel or given travel expenses (Smith v Stages).