Vicarious Liability - Evaluation

Introduction. (AO1)

-Not an individual tort claim like negligence or nuisance.
-It is a way of imposing a tort in someone who did not commit the tort.

Introduction. (AO3) (unfair)

-Contradicts the basic fault principle of liability.
-The employer is liable even if they are not at fault.
-The tort will have often occurred before the employer realizes that their employee has made a mistake and before they can internally discipline them.

HOWEVER, the claimant is the truly innocent party and cannot be left without a remedy.

Was the person alleged to have committed the tort an employee? (AO1) (control test)

-Yewes v Noakes decided that the employer has control over the employee.
-Lord Thankerton in Short v J W Henderson identified the key features of this to be the power to select, suspended, dismiss and pay wages of the employee.

Was the person alleged to have committed the tort an employee? (AO3) (control test fair)

-Control test is narrow so hinders claims

-so fair on employers.

Was the person alleged to have committed the tort an employee? (AO1) (economic test)

-Ready Mixed Concrete v Minister of Pensions developed the economic Reality or Multiple test.
-The employer agrees to provide work or skill in return for a wage. -expressly or impliedly accepts that the work is subject to employers control
-All other considerations in the contract are consistent with there being a contract of employment.

Was the person alleged to have committed the tort an employee? (AO3) (economic test unfair)

-Stretches the law to find liability in circumstances where employers have a less than normal working relationship with the employees.
-Modern methods of employment of working from home and flexible hours mean that it is not always possible for employers to supervise employees.
-Unfair to hold employers liable when it is impossible to supervise employees.

HOWEVER it forces employers to have a social responsibility for their business and employees which is fair on C

Did the employee commit the tort during the course of their employment? (AO1)

-In order to be vicariously liable, there must be a relationship of employment and the tort sufficiently closely connected with that employment.

-no frolics or unauthorised acts

Did the employee commit the tort during the course of their employment? (AO3) (unfair)

-The entire principle of vicarious liability is that it is unfair on employers as it imposes a tort on employers where a tort was not actually committed by them, but their employees.

-and they can still be liable even when the act was unauthorised

Did the employee commit the tort during the course of their employment? (AO3) (fair)

-However, Limpus v London General and Rose v Plenty justified vicarious liability saying it gave the victim a just and practical remedy.

-Traditionally the employer was receiving benefits of the employee.

-Public liability insurance can be taken out so the employers are not the actual ones paying.

-also means that where the unauthorised act was beneficial to the employer they can still be liable → Rose v Plenty

Did the employee commit the tort during the course of their employment? (AO3) (unfair)

-The employer has to pay for the insurance regardless, so technically speaking, they do have to pay to some extent.

Did the employee commit the tort during the course of their employment? (AO3) (close connection) (unfair)

-The law is confusing and unfair is this area.

-The close connection test is vague and so leads to unpredictable decisions as of Lister v Hesley Hall.

-HOEWEVER, this decision was deemed fair as it involved an emotive situation of historic child abusive claims, so in order for justice to be served, someone must be held liable

Did the employee commit the tort during the course of their employment? (AO3) (frolic) (fair)

-Hilton v Thomas Burton was fair on the employer as it reinforced the legal principle of acting on a frolic which disregards liability for the employer.

-BUT this decision was unfair to the claimant and in general as the claimant's husband was killed during work time in the employers van, and no claim was allowed.

Did the employee commit the tort during the course of their employment? (AO3) (frolic) (unfair)

-The principle is contrasted in Smith v Stages, where on similar facts the claimant was allowed to claim because the purpose of the employees' journey was different.

-Decisions between the two cases are inconsistent, making it unfair both on employers and claimants.

-This is unfair on employers as liability is sometimes forced based upon public policy.

Did the employee commit the tort during the course of their employment? (AO3) (criminal act) (unfair)

-Where an employee commits a criminal during the course of employment, the courts are likely to find the employer liable.
-The employer is left vulnerable and makes it hard for them to lay down a set of clear rules to employees.

Did the employee commit the tort during the course of their employment? (AO3) (criminal act) (fair)

-It is fair for victims to get compensation for the crimes as they wouldn't be able to do from the person who caused the injuries as they would likely be in prison.

Public Policy. (AO3) (fair)

-The employer benefits from the work so should therefore bear responsibility for the word being correct.

-BUT it seems harsh to hold employers liable when sometimes employees have acted despite warnings from employers but it is the employer is ultimately responsible for the appropriate hiring, induction, training, and supervision of the employees.

-Employers are best placed to dear any losses where the claimant is a man of straw.

-Public policy underpins this wiht the legal requirement that all employers must have employer indmnity insurance.

Public Policy. (AO3) (unfair)

-Harsh as sometimes employees have acted despite warnings from employers. but the employer is ultimately responsible for the appropriate hiring, induction, training, and supervision of the employees

-The Civil Liability Act 1978 right of recovery is unlikely to work in practice as the employee will not be earning enough money to pay back the compensation.

Public Policy. (AO3) (fair)

-The employer is ultimately responsible for the appropriate hiring, induction, training, and supervision of the employees.

-There is a legal requirement that all employers must have employer indemnity insurance.

-Vicarious liability encourages and maintains high standards and discourages poor employment practices as well as unsafe and undesirable working conditions.

-An employer under the Civil Liability Act can recover from an employee any compensation paid out.

Conclusion. (AO3) (both)

Whilst the breadth of vicarious liability may seem a little unfair, it is a price worth paying to ensure that vulnerable victims have access to justice and that the highest workplace standards are maintained.