TESTS FOR VICARIOUS LIABILITY

How many tests are there for vicarious liability

4 tests

What are the 4 tests

• old (traditional test for VL)

• control test

• Integration/organisation test

• Economic reality/multiple test

What two points does the old (traditional test) entail

1) is the tortfeasor an employee

2) Was the tort committed in the course of employment

Regarding the old (traditional test), why does the employee status of the tortfeasor matter

Because employees are not liable for independent contractors. The employee has a contract of service, where the contract sets out terms of employment. Whereas the independent contractors has a contract for service in which they provide work for the business but dont work directly for the business

Which tests to identify an employee are new

1) The control test

2) The integration/organisation test

3) The economic reality/multiple test

What is a short summary of the control test

Does the employee control how the work is done?

What is a short summary of the integration/organisation test

Is the worker part of the business?

What is a short summary of the economic reality/multiple test

It considers pay, equipment and independence etc

According to the control test, when is the employer more liable

The employer is more likely liable if they have control over hiring and firing, method of work and payment

What key case identified key control features for the control test

Short v J.W. Henderson

What is a case regarding the control test, where the original employer was still liable

Mersey Docks v Coggins

Hawley v Luminar leisure

Who set out the integration/organisation test

Lord Denning, in the case of Stevenson, Jordan and Harrison v McDonald and Evans

According to the integration/organisation test, what makes a worker an employee

The worker is an employee if their role is fully integrated into the business. If the work is only accessory, they’re not an employee.

Regarding the integration/organisation test, what is an example of an employee

Ship master, chauffer, staff reporter

Regarding the integration/organisation test, what is an example of someone who is not an employee

Ship pilot, taxi driver, report

Which case was the economic reality/multiple test set out in

Ready mixed concrete ltd v Minister of pensions

Regarding the economic reality/multiple test, how many conditions did the case of Ready mixed concrete ltd establish

3

Regarding the economic reality/multiple test, which 3 conditions did the case of Ready mixed concrete ltd establish

1) employee agrees to provide work for payment

2) employer has some control over employee and they accept

3) the rest pf relationship aligns with employment contract

What are other factors are considered in economic reality test

• who owns the tools/equipment

• How payment is made (salary vs lump sum)

• Tax/national insurance/pension arrangements

• Job title/self description

What cases are set out in the economic reality test

Carmichael v National power

Ferguson v Dawson

Viasystems v Thermal transfer

What did the case of Viasystems v Thermal transfer establish regarding the economic reality test

Dual vicarious liability is possible where 2 parties share control