vicarious liability

What is vicarious

Where one person is responsible for the tort of another - done as employer is more likely to be in a better financial position

What is the test to establish whether employer is liable

Salmond test
1. Person committing tort is an employee
2.employee commits unintentional tort Poland v Parr
3. tort occurs in course of employment

What is the old test for employment

Whether T was providing a
- contract of service which makes them an employee
- contract for service which makes them an independent contractor
D can only be liable for employees actions

What is the control test

Lord Thnkerton in Short v J W Henderson stated key features which would show employment
- power to select employee
- right to control method of working
- power to suspend or dismiss
- payment of wages

What did Mersey Docks & Harbour Board v Coggins and Griffiths establish

If T is hired out without any equipment then there is an interference that hirer becomes employer but if D is hired with equipment the interference isn’t as strong as hirer may not have control of how equipment is used

What is the economic reality test

Established in Ready mixed concrete v Minister of pensions and natural insurance
1. T agrees to provide work or skill in return for a wage
2. T expressly or impliedly accepts that the work will be subject to the control of D
3. All other considerations in the contract are consistent wtth there being an employment contract rather than any other relationship

What are the factors considered to establish relationship

1. ownership of tools,plant or equipment

2. method of payment

3. tax,national insurance and pension contributions are deducted

4. job descriptions

5. independence in doing job - eg how much flexibility and independence does T get

What did Viasystems v Thermal transfer establish

Possible for two employers to be liable for T’s negligent act and this raised the question ‘Who was entitled and in theory obliged to control T’s negligent acts in order to prevent it’

What did Limpus v London general establish

Even if T is commiting an act against orders and act is a part of their job, D will still be liable for their negligent act Century Insurance v Northen Ireland road transport board

What did Hilton v Thomas Burton Rhodes establish

D will not be liable if T commits an act outside the area or time of employment - acting on a ‘frolic’ of one’s own

What is the newer approach to establish employment relationship

The question now is whether T was in the employment of it or akin to it

What is the test for akin to employment

set out by Christian brothers
1. Is D better placed to be able to compensate and could be expected to insure against such risk
2. Was tort committed during activity undertaken on behalf of D
3. Is T’s activity part of a business of D
4. Has D using T created a risk
5. Is T under control of D to greater or lesser extent
Reinstated in cox v ministry of defence that central questions are most important

What is the newer test to establish whether tort was committed in the course of employment

Lister v Hesley Hall was commission of tort ‘closely connected’ to the employment

What are the two factors that should be considered as to whether tort is closely connected

Set out by Mohamud
1. nature of T’s job - function or field activities
2. Is there a sufficient connection between the position in which T has been employed and wrongful conduct

What did Barclays v Various claimants establish

If T is an independent contractor then D will not be liable - V will have to rely on T’s financial worth or their insurer