Vicarious Liability

Purpose

Allows C to claim against both the employee and employer so it can be decided who is most suitable to pay the damages

Salmond test

Employers are vicariously liable when:

• an employee commits an unintentional tort

• The tort is committed by an employee

• The tort occurs in the course of employment

What needs to be proved

Barry congregation of Jehovah’s Witnesses v BXB

The tortfeasor must be an employee using the traditional tests of employment or the akin to employment test. The tortious act must be either in the course of employment or for criminal intentional torts sufficiently closely connected to the employment

Control test

Luminar Leisure v Hawley

Employer must have some control over the tortfeasor, such as the power to select the employee, the right to suspend and dismiss, and the payment of wages

Integration test

Stevenson, Jordan and Harrison v McDonald and Evans

Whether a person is integrated into the business or merely an accessory

Economic reality test

Ready mixed Concrete v Minister of Pensions and National Insurance

The employee agrees to provide work or a skill in return for a wage, the employee accepts the work will be subject to the control of the employer, and other considerations are consistent with an employment contract

Independent contractors

Independent contractors are not employees - Barclays Bank v Various Claimants

Akin to employment test

Christian Brothers Case

Employer more likely to have means for compensation

Committed as a result of activity taken on behalf of employer

Activity part of employer’s business activity

Employer created risk by employing the employee

Employee to a greater/lesser degree was under control of employer

Prisoners are akin to employment

Cox v Ministry of Justice

Foster parents are akin to employment

Armes v Nottingham Council

In the course of employment

Authorised acts - Poland v Parr

Limpus v London General - even if employee is doing their job but in an unauthorised manner, the employer is still liable

Purely careless manner - Century Insurance v NI Road Transport Board

Not in course of employment

Acting against orders - Beard v London

‘Frolic of his own’ - Shelbourne v Cancer Research

Sufficiently close connection

What was the field of activites given to the employee by the employer? What is the nature of the job?

Was there a sufficiently close connection between the position he was employed and the wrongful conduct for it to be right for the employer is held liable under social justice?

Lister v Helsey Hall - “inextricably interwoven” with the duties

Criminal intentional - within field of employment

Mohamud v Morrisons Supermarket - case for within field

Morrisons Supermarket v Various Claimants - if act was done due to a personal vendetta, is not within field of employment