Vicarious liability

Intro

Vicarious liability is where one person is liable for a tort committed by another usually an employer who is liable for any tort committed by one of his or has employees during the course of employment the claimant has the option to sue the employee who is jointly liable with the employer who for their actions as the employer is more likely to have resources to pay any damages awarded.

Before one can be made vicarious reliable for a tort committed by another there is a two staged test which must be satisfied

Stage 1 employee relationship

The relationship between defendant and the tort force must be one of employment or Akin to employment. An employer is only liable for to committed by employees. There is no liability for torts committed by an independent contractor.

Barclays Bank v various claimants, where a doctor sexually assaulted staff members in Barclays Bank while undertaking health checks for the bank. He was free to refuse request from the bank as they were merely a client. The court decided that the doctor was an independent contractor carrying out his own business so the bank was not vicarious reliable.

1. control test

There are four different tests to decide whether someone is an employee

Control test is when an employee is told what to do and how to do it whereas an independent contractor is only called what to do

Mersey docks v coggins Harper board loaned one of its employees but still had the power to tell the driver the way in which the way it should be carried out so they were still in an employment relationship

2. integration test

a worker will be an employee if their work is fully integrated into the business

Stevenson v Jordan macdonal if a persons work is only an accessory to the business that person is not an employee for example a journalist who works for a newspaper is fully integrated but a freelance reporter who contributes articles occasionally is only an accessory to the business

3. economic reality 3 part test

The economic reality task consist of three parts

1. provision of work or skill in return for a wage

2. The employee accepts that work will be subject to the control of the employer

3. All other considerations are consistent with their being a contract of employment rather than any other relationship

Ready mixed concrete v minister of pensions the driver was an independent contractor because he owned his own and was responsible for repairs and running cost

Akin to employment test

The courts have decided that a defendant can be liable for wrongful conduct committed by someone who is not technically an employee but who is in a working relationship Akin too employment

Catholic child welfare society case where a school hire teachers who members of an institution of Christian Brothers where they sexually abused students

The court decided all day. There was no formal contract of employment between the Institute and the brothers as they were simply on a mission to teach children Christian values. The institutions relationship with its members was sufficiently akin based on the hierarchical structure of the Institute and that was also a sufficient close connection

Stage 2 - close connection

There must be a close connection between the wrongful conduct and the acts the tortfeasor was authorised to do so that it can be fairly and properly be regarded as done by the tortfeasor in the course of their employment

1. negligent act of an employee

If an employee does a job badly, the employer can be vicariously liable for their actions which caused damage to another.

Country insurance v Northern Ireland transport board , in this case a driver delivering petrol discarded a match of the lighting a cigarette which resulted in an explosion leading to employer being by vicariously liable because the driver was carrying out his duties even though it was in a negligent way

2. acting against orders

If an employee is doing that job but act against orders in the way they do it the employer can still be vicarious reliable

Limpus v London general omnibus a bus driver caused an accident while racing another driver on his route employer was vicariously liable because the driver was still acting for his employees business

rose v plenty- a milkman used a child despite instructions from his employer not to allow children to ride on it. The employer was still vicarious liable when the child was injured because the employer was benefiting from the work undertaken by the child.

3. frolics of an employee

if an employee causes injury or damage by doing something which has nothing to do with the employment and employer will not be vicarious viable

In the case of Hilton v Thomas burton where workers took unauthorised breaks and went into a café and on the way back due to negligent driving cause an accident the employer was not liable since the workers were on a frolic of their own

4. Criminal acts of an employee

Criminal acts of an employee are also considered taught an employer can be liable for the crimes of an employee provided that their is close connection

Mattis v pollock a bouncer inflicted serious injuries on a customer nightclub was vicariously reliable and bouncer was encouraged cheese horse and be aggressive so his criminal actions were closely connected to his work

In the case of N V chief an off duty police officer raped C pretending to take her to hospital in his own private car. The court decided that there was no close connection between his employment and the assault so the employers were not vicariously liable as he had merely used his uniform to gain trust

conclusion