Vicarious Liability

Define vicarious liability

Is where D (employer) is responsible for the tort of another (employee)

State the 3 requirements to establish vicarious liability

1) C must suffer loss or injury due to the tort; AND

2) There must be a relationship between the person who commits the tort and D; AND

3) There must be a connection between the tortious act/omission and the relationship

Once these are met D is liable for the tort whether or not they are at fault

What does the control test state? (establishing relationship between tortfeasor and employer)

According to Yewens v Noakes if T can be told what to do and how to do it he's and employee (Hawley v Luminar Leisure)

State the factors taken into consideration when establishing an employee & employer relationship in a multiple test

1) Control- is the employer in charge of the worker and the work being done? (Ready mixed concrete)

2) Personal performance- If the work is the sort that can't be delegated to another, T is more likely to be an employee (Express & Echo Publications v Tanton)

3) Mutuality of obligation- if both sides have obligations to each other like a paid salary with fixed hours (Carmichael v National Power)

4) Further factors-

-Paid salary or commission based

-Pays tax as employee or self employed

-Can delegate work to someone without permission

-Uses his own premises, equipment and helpers

-Would be personally affected by his own management decisions

Which test establishes that there must be a connection between the tortious act/omission and the relation ship

Salmond Test

What are the 3 factors in the Salmond test

1) An authorised act done in a wrongful and unauthorised way (Century Insurance v NIRTB)

2) An authorised act done in an expressly forbidden way (Rose v Plenty) but this is not the case if their is no economic benefit (Twine v Beans Express)

3) An unauthorised act- if act is entirely forbidden D is not vicariously liable (Beard v LGO)

Define the Lister test

Were the acts of the employee so closely connected with his employment that it was fair and just to hold the employer liable

State the two factors in which the employer is held vicariously liable under the Lister test (Various Claimants v CCWS)

1) D is in a position to use the employee to further its business interests, and

2) D has done so in a way that created and significantly enhanced the risk that victims would suffer wrongdoings