Vicarious Liability AO1

What is Vicarious Liability?

A rule of law that imposes strict liability on employers for the wrongdoings of their employees

One person is held liable or the torts of another- even though that person did not commit the act itself

What is strict liability?

It is not the Defendant’s (employer) fault

Who is responsible for the ‘tort of another?’

The employer is responsible of the employee- they are held liable for the torts of their employees that are committed during the course of employment

What are the traditional tests of employment called?

The Salmond Tests

What is the first test under the Salmond Tests?

‘Was the tortfeasor an employee?‘

• the control test

• the integration test/organisation test

• the economic reality test

What is the Control Test? (Hawley)

The tortfeasor is more likely to be employed if D has a lot of control over them

What is the Integration Test? (Stevenson)

You’re employed if you’re fully integrated into the company/business

(eg a freelance worker isn’t ‘integrated’)

What is the Economic Reality Test? (Ready Mixed Concrete)

The tortfeasor is likely to be an employee if they get holiday pay, tax is deducted & it looks like an employment contract

What does the court have to decide?

Whether the wrongdoing happened ‘in the course of employment.’

‘In the course of employment:’ Limpus

If the tortfeasor acts against orders, the employer is still liable

‘In the course of employment:’ Rose

If the employer benefits from the tortfeasors work, they are liable

‘In the course of employment:’ Century Insurance

If the tortfeasor commits a negligent act, the employer is vicariously liable

When is D not liable? (Hilton)

When a Tortfeasor commits acts ‘on a frolic of his own.’

=an employees actions are outside the scope of their employment and for their own benefit

What 2 questions are asked if the tortfeasor commits an intentional tort?

• Is it akin to employment?

• Does it pass the close connection test?

What does ‘Akin to employment’ mean?

It is similar to an employment contract

If the tortfeasor is an independent contractor, D is not liable (Barclays Bank- independent doctor)

What is The Catholic Child Welfare Society?

Criteria that helps to decide if the relationship is ‘akin to employment.’

Criteria’s from The Catholic Child Welfare Society?

• the employer is more likely to have the means to compensate/have insurance

• the tortfeasor was doing work for the employer when the tort was committed

• there’s a link between the activity & the business

• the employer creates the risk of the tort by employing the tortfeasor

• the employee was under control of the employer

What did Cox say can be included in ‘akin to employment?’

A prisoner being employed by the prison

What does ‘close connection’ mean?

There must be a close connection between the tortfeasor’s actions and what they were employed to do

Morrisons: close connection ✅

There was a close connection when the tortfeasor (employee) punched a customer → employer was liable

Morrisons: close connection ❌

There wasn’t a close connection when the tortfeasor (employee) stole data- it was a deliberate attempt to harm the business

Difference between unintentional tort & intentional tort?

Unintentional:

• Employed

• In the course of

Intentional:

• Akin to employment

• Close connection