vicarious liability

intro

• VL is the rule that one person is liable for another's tort

• employer can be VL for their employees acts

• employee remains primarily liable

for employer to be liable…

• 2 conditions must be satisfied:

  1. Tort must be committed by employee not independent contractor

  2. Tort must be done “in the course of employment” (not on a frolic of their own) 

STAGE ONE - EMPLOYEE OR INDEPENDANT CONTRACTOR

STAGE ONE - EMPLOYEE OR INDEPENDANT CONTRACTOR

who is employer liable for?

• Law distinguishes between employees and independent contractors

• employer is only liable for actions of employees not IC’s 

3 types of test for employee

three tests

1. control test

2. multiple/economic reality test

3. connection test

control test

• telling person “what to do and how to do it” 

multiple/economic reality test

• Ready Mix Concrete V Minister of Pensions

  1. agrees to work in return for payment

     • (assume unless stated to be volunteer)

  2. agrees expressly or impliedly to be under employers complete control

     • (simply turning up will satisfy)

• updated so all factors in relationship considered

  • (go through all factors in scenario)

connection test

• when there is no traditional employment relationship, employer VL if:

  1. close connection between what they did & what they were required to do in their employment

     • not pursuing a personal vendetta

       • Court of Appeal- Morrisons

  2. relationship ‘akin to employment’

     • E V English Province of Our Lady of Charity

     • Cox V Ministry of Justice

multiple employers

• if multiple employers had some control over employee, they can all be held responsible and share liability equally

  • Viasystems V Thermal Transfer

STAGE TWO - IN COURSE OF EMPLOYMENT OR FROLIC OF OWN

STAGE TWO - IN COURSE OF EMPLOYMENT OR FROLIC OF OWN

3 situations when employee can be acting within course of employment

1. authorised act, unauthorised manner

2. authorised work negligently

3. travelling to + from work

authorised act, unauthorised manner

• an act they are employed to do

• employer liable when:

  • even when given express prohibition of act, employee acts against order

    • Limpus London V Omnibus

  • benefit from acts of employee

    • Rose V Plenty

• employer not liable if gaining no benefit

  • Twine V Beans Express

employee doing authorised work negligently

• although employee acting for own benefit, this was not enough to release the employers from liability

  • Century Insurance V Northern Ireland Road Transport Board

• Cox V Ministry of Justice

travelling to + from work

• normally not in the course of employment,

• however may be if employee is being paid/given travel expenses

  • Smith V Stages

2 situations when employee is not acting within course of employment, but outside scope of employment

• frolic of their own

• so closely connected test, employee commits an intentional tort (criminal act)

employees on a frolic of their own

• take a detour for their own benefit

  • Hilton V Thomas Burton

• doing activities that have no relevance to the job they are employed to do

  • Heasemans V Clarity Cleaning

so closely connected test

employee commits an intentional tort (criminal act)

• employer VL when:

  • close connection- Lister V Hesley Hall - House of Lords

  • sufficient connection

    • acting within field of employment

    • at work

    • within working hours

    • close connection between what he did and what he was required to do in his job

    • Mohamud V Morrisons Supermarket - Supreme Court

• employer not VL when used employment to gain trust & abuse it- N V Chief Constable of Merseyside Police