Vicarious Liability

Vicarious liability

Another person is held liable for the tort of another; Historically the master/servant relationship but now applies to employee/employer

BXB test for establishing a claim

1. is the relationship one of employment of sufficiently akin to employment?

2. if so, were the actions committed within the course of employment or sufficiently closely connected to the employment?

employee versus contractor

employer can be vicariously liable for an employee but an independent contractor is self employed and therefore legally responsible for their own actions

tests to establish who is an employee

• control test

• organisation test

• economic reality test

Control test

• Established in Yewen V Noakes

• Considers whether the employer has power to control the nature of the work done including what is done, how it is done and when it is done

• Updated in short now meaning power to control method of working, right to suspend and dismiss and control payment of wages

Yewen V Noakes

Control test

Short

Control test

Hawley V Luminar Leisure

Bouncer supplied to nightclubs assaulted customer; Club exercise control over how the bouncer should do his work as they employed him and therefore were vicariously liable for his actions

Organisation test

• Helps distinguish employee from independent contractors

• Employee = man is employed as part of the business and his work is internal to it

• Contractor = his work is done for the business but not integrated into it only an accessory

• Macdonald and Evans

Economic Reality Test

• Ready Mixed Concrete Ltd

• Employer/employee if

1. The servant agrees that in consideration of wage, he will provide his own work and skill in performance of service for his master

2. He agrees that in performance of the service he will be subject to controls for the master

3. The other provisions in the contract are consistent with it being a contract of employment

Course of employment

Employer is not responsible for a tort committed by an employee outside the course of employment

• Salmond test

Salmond test

Tort committed in the course of employment if it is:

• Wrongful act authorise by the master

• An unauthorised way of doing an authorised act

On frolic of their own

Employer is not responsible if the employee is acting beyond the scope of his or her employment

Rose V Plenty

Dairy instructed its milkmen to not use child helpers but one did and the boy was injured; Held vicariously liable as milkman was doing his job even though disobeying orders

Limpus V London General Omnibus

Doing an authorised action in an unauthorised way- Bus drivers prohibited from racing others however still liable as it was within the course of employment

Iqbal

Acting against orders/not in the course of employment - bus driver previously prohibited from driving hit an employee; not liable for actions of employee

Smith V Stages

Employee in road accident when travelling back to his normal place of work; Held to be within his course of employment as Lord Lowry believed a decisive factor was that he was paid normal wage for his travel time

New approach

Salmond test struggle with more modern variations of who is classed as an employee leading to Lister which developed new parameters: Relationship must be ‘akin’ to that of an employee/employer relationship or there must be a closeness of connected between the person doing the job and the person paying them

Lister V Helsey Hall updated parameters

• Akin to employee/employer relationship

• Closeness of connection between the person doing the job and the person paying them

Akin to employment

Catholic Child Welfare Society set out 5 criteria

1. The employer is more likely to be able to compensate and have insurance

2. The act will have been committed as a result of the activity being done on behalf of the employer

3. The employees activity is limit to be a part of the business activity of the employer

4. The employer created the risk of the act being committed by the employee

5. The employee will to a degree have been under control of the employer