Vicarious Liability

C, D and E

C - The person who suffered from D’s negligent act
D - The worker who carried out the negligent act
E - D’s employer who may be vicariously liable for the negligent act of D

Intro

C may claim against the employer who may be vicariously liable for D’s tort if it can be proved that the worker was an employee and acted in the course of employment

Is the worker (C) an employee

If the worker is an employee, the economic reality test outlined in Ready Mixed Concrete v Minister of Pensions is typically used. Three conditions must be considered to prove an employment relationship

The worker agrees to do the work

The worker agrees to do the work in return for a wage or salary. If the worker is paid a monthly wage/salary they are more likely to be an employee, but if they are paid per job they are more likely to be an independent contractor/self-employed

Employer has control over the work

The worker accepts that the work is subject to the employers control, how much control does the employer have, is the employer in charge of the worker?

All factors are consistent with an employer contract

Who arranged and pays workers, national insurance? Self description - how does the worker describe himself? Who owns the tools or equipment?

Conclude on if D is an employee

It may be unclear if C is an employee, if it is then explain this

Was the employee acting in the course of employment

Assuming D is an employee, it must be proven he is acting in the course of employment at the time of the employment, employers are liable for work that is authorised but carried out in an unauthorised way (Limpus v LGOC)
The employer is still liable if the employee carries out their job in a negligent way (Century Insurance v NI Road Transport)

Was there a close connection between the tort and act - FJR/Close Connection test

If there is a close connection between what the employee did and what they were employed to do it would be fair, just and reasonable to hold the employer liable (Lister v Hesley Hall)
The employer will be liable if the act was a crime (Muhammad v Morrisons)

OR was the employee acting outside of his employment

Employers are NOT liable if the employee is acting completely outside of his employment and is on a frolic of his own (Beard v LGOC)

Conclude

If all elements are proven the employer will be vicariously liable, the claimant who suffered from the workers negligent act will be entitled to a remedy of damages from D’s employer