OCR A-Level Law - Vicarious Liability (AO1)

What is the definition of Vicarious Liability?

Vicarious Liability is a strict liability tort

which imposes liability onto an employer for any tort committed by an employee, or someone akin to an employee

during the course of their employment.

There must be a connection between that relationship and the tortfeasors wrongdoing

What are the three elements to vicarious liability?

1. tortfeasor commits a tort

2. tortfeasor is an employee or in a position akin to employment

3. there is a sufficiently close connection between tortfeasors employment and conduct

What is the difference between a contract of service and a contract for service?

• If the tortfeasor holds a contract of service, they are seen to be employed by the defendant

  • D may be vicariously liable for their actions

• If the tortfeasor holds a contract for service, they are considered an independent contractor

  • D will not be vicariously liable for their actions. - Barclays Bank v Various Claimants

What are the traditional tests to determine whether tortfeasor is an independent contractor or an employee?

1. Control test

2. Integration test

3. Economic Reality/Multiple test

Who set out the control test, and in which case?

Lord Thankerton, in Short v J W Henderson Ltd.

When will a tortfeasor be an employee under the control test?

• When the employer has control over them:

  • the power to select the employee

  • the right to control the method of working

  • the right to suspend and dismiss

  • the payment of wages.

When will the control test still be applied?

In cases involving borrowed workers.

Mersey Docks Case - crane

Hawley v Luminar Leisure - bouncer

Mersey Docks & Harbour Board v Coggins and Griffiths (Liverpool Ltd)

In cases involving borrowed workers, the permanent employer will be presumed liable unless the contrary is proved; if the employee is hired out without any equipment, this suggests that the hirer has significant control.

Who set out the integration test, and in which case?

Lord Denning, in Stevenson v McDonald and Evans

When will a tortfeasor be an employee under the integration test?

When the tortfeasor is fully integrated into the business, and is not solely an accessory to it.

EG taxi driver or freelance writer aren’t fully integrated into the business but a chauffeur would be

Who set out the multiple test, and in which case?

MacKenna J, in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

When will a tortfeasor be an employee under the multiple test?

When the employee:

1. agrees to provide work or skill in return for a wage,

2. expressly or impliedly accepts that the work will be subject to the control of the employer,

3. and has a contract consistent with being an employment contract

What other factors will be considered under the multiple test?

Ownership of equipment, method of payment, and tax deductions.

What is the approach adopted recently for situations where there is a non-traditional working relationship

• Lister v Hesley Hall set it out

• was the relationship akin to employment?

• was the commission of the tort closely connected to the employment?

When will a tortfeasor be considered akin to an employee?

they satisfy the fair just and reasonable test

tests to be used in the event that the working relationship is non-conventional e.g. a prisoner working in prison cafeteria in Cox v MoJ

What is the close or sufficient connection test

set out in Lister v Hesley Hall

1. What functions or activities have been given to employee by employer (what was the nature of his job)

2. Was there sufficient connection between the position tortfeasor was employed and his wrongful conduct, in order to make it right for the employer to be held liable? - Not in Morrisons v Various Claimants

Which case set out the "fair, just, and reasonable" test of being akin to employment?

Catholic Child Welfare Society v Various Claimants

What are the five criteria set out under the "fair, just, and reasonable" test?

1. The employer is more likely to have the means to compensate the victim

2. the tort was committed as a result of an activity done on behalf of the employer,

3. the activity is likely part of the business activity of the employer,

4. the employer created the risk of the tort committed through employing the tortfeasor,

5. and the tortfeasor was under some control from the employer.

Limpus v London General

An employer will still be vicariously liable even if the employee was acting against orders, as long as they were completing their job role.

Century Insurance v Northern Ireland Road Transport Board

An employer will still be vicariously liable even if the employee acts negligently, as long as they were completing their job role.

Beard v London General Omnibus Co.

An employer will not be vicariously liable if the employee causes injury or damage whilst outside the area or time of their work.

Lister v Hesley Hall

An employer will be vicariously liable if the field of activities given by the employer are sufficiently connected to the employee's wrongful conduct.