Vicarious Liability Flashcards
(14 cards)
What is the purpose of Vicarious Liability (VL)?
VL is a doctrine that holds employers liable for torts committed by employees because they control the employee’s actions and are in a better financial position to compensate victims.
What are the 3 elements needed to establish Vicarious Liability?
- A tort must have been committed
- There must be a relationship of employment (or similar)
- The tort must have occurred in the course of employment.
What is required for the first element of VL?
The employee (tortfeasor) must have committed a tort, e.g., negligence or nuisance.
Does vicarious liability apply to independent contractors?
No – it only applies to employees, not independent contractors.
What two tests are used to determine if someone is an employee?
a) The Control Test
b) The Economic Reality / Multiple Test.
What is the Control Test?
If the employer has the right to control what the worker does and how it is done, they are likely an employee.
Case: Hawley – control indicated employment; employer was vicariously liable.
What is the Economic Reality Test?
Three-part test:
1. The worker agrees to provide work or skill for a wage
2. The worker accepts that the work is under the employer’s control
3. Other contract terms are consistent with a contract of employment.
What did the case of Cox v Ministry of Justice establish?
VL can also apply to relationships akin to employment (e.g., prison kitchen workers).
What additional factors help determine employment status?
• Who owns the tools/equipment?
• Who pays wages and deducts NI/pension?
• Is payment by salary or one-off?
• How much independence does the worker have?
• Is the job title reflective of actual duties?
What actions are in the course of employment?
• Authorised acts (Smith v Stages)
• Authorised acts done in a forbidden way (Rose v Plenty)
• Authorised acts done negligently (Century Insurance).
What actions are not in the course of employment?
• Acts outside the scope of employment, e.g., personal activity or frolic.
Case: Beard – not liable; employee was acting on a frolic of his own.
What is the Close Connection Test?
Used to assess whether the wrongful act is closely connected to the employee’s job.
What did the case of Mohamud v Morrisons establish?
Established a 2-part test:
1. What was the nature of the job?
2. Was the wrongful act sufficiently connected to the job to make it fair and just to hold the employer liable?
How can an employer recover damages from the employee?
Under the Civil Liability (Contribution) Act 1978, an employer found liable can sue the employee to recover some or all of the damages.
