Vicarious Liability Flashcards
(14 cards)
Vicarious Liability – Introduction
The D (name) may be liable for the tortfeasor’s actions (name) under vicarious liability.
Definition of Vicarious Liability
Vicarious liability is where the employer (the D) is liable for the negligence of employees (the tortfeasor). Two conditions must be proved (Trustees of Barry Congregation v BXB):
1. The tort must be committed by an employee
2. The actions must be closely connected to the tortfeasor’s course of employment.
Employment Status – Overview
Three possible routes:
1. Traditional Employee Test (Multiple Test)
2. Akin to Employment Test
3. Independent Contractor
Multiple Test – Definition
In Ready Mixed Concrete v M.O.P, courts use a range of factors to determine if someone is an employee:
• Whether a wage is paid, tax and NI
• Who provides tools/equipment
• Whether the worker obeys orders
• Control over how work is done
• Acceptance of business risk
• Power to hire/fire assistants.
Multiple Test – Exam Tip
It must be fair, just and reasonable to find the employer responsible.
Akin to Employment – Use in Doubtful Cases
Used when employment status is unclear. Established in Christian Brothers. Factors include:
• Employer has insurance/ability to compensate
• Act committed on behalf of employer
• Activity is part of employer’s business
• Employer created risk of act
• Employee is under employer’s control.
Akin to Employment – Exam Tip
It must be fair, just and reasonable to find the employer responsible.
Independent Contractor – No VL
If the tortfeasor is neither an employee nor akin to employment, they are an independent contractor. The D will not be vicariously liable. (Barclays Bank v Various Claimants)
Close Connection Test – Definition
Whether the employee’s acts were so closely connected with authorised acts that it may fairly and properly be regarded as done in the ordinary course of employment. (Morrisons v Various Claimants)
Close Connection Test – Purpose
Establishes the link between:
• The wrongful conduct, and
• The tortfeasor’s authorised duties.
Note: ‘But for’ test is not enough.
VL Still Applies – Examples
VL may still apply if employee was:
• Acting excessively (Vasey)
• Acting negligently (Century Insurance)
• Acting in an unauthorised way (Rose v Plenty)
• Committing a criminal act (Morrisons v Mohamud)
• Abusing students (Lister v Hesley Hall).
VL and Abuse Towards Adults
If abuse is towards an adult, the courts must carefully consider the extent of the connection to authorised acts. (Trustees of Barry Congregation v BXB)
VL Will Not Apply – Examples
No VL where employee was:
• Doing something unrelated to their job (Heasemans v Clarity Cleaning)
• On a “frolic of their own” (Storey v Ashton)
• Acting from a personal vendetta (Morrisons v Various Claimants)
• Abusing a colleague/adult outside work (Trustees of Barry Congregation v BXB).
SIDE RULE: Travel and VL
Travel not normally in course of employment. Exception:
VL may apply if:
• Employee is paid to travel, or
• Given travel expenses. (Smith v Stages)
