vicarious liability

Definition

When a third party (usually an employer) is held responsible for the tort committed by another party (usually an employee) referred to as the tortfeasor

D is held liable for the tort if….

1. The tortfeasor is an employer/akin to employment

2. The tort was committed within the course of employment or closely connected to the employment

Case for - tortfeasor was an employer

Salmond test

The 3 tests to determine whether the tortfeasor in an employer

1. Control

2. Integration

3. Economical reality

Test of control

1. Power to select a worker

2. Right to control method of working

3. Right to suspend or dismiss

4. Provides tools

5. Controls hours of work

Case for test of control

Henderson

Test of integration

1. Employees work is fully integrated into the business

2. If the person is an accessory to the business then they are not an employee

Case for test of integration

Harrison

Economic reality test

1. Employee agrees to provide work/skill in return for a wages

2. Considerations in the contract are consistent with an employment contract

3. Under the other parties control

Case for economic reality test

Ready mix concrete

Case for not held liable for the actions of independent contractors

Barclays Bank

Course of employment

1. Authorised acts or authorised acts done in an unauthorised way

2. Acts forbidden but done for the benefit of the employer

3. Employee does a job badly and causes damage/negligent acts

Case for authorised acts done in an unauthorised way

Limpus V London General Omnibus - bus driver was racing and caused an accident but was still doing his job

Case for acts forbidden but benefitting the employer

Rose V Plenty - forbidden to use children but were still benefitting off the boy’s work

Close connection test

Examines whether there was sufficient connection between the position of the employee and the wrongful conduct

Case for close connection test

Morrisons supermarket

Employer won’t be liable if….

The tortfeasor was acting on a “frolic” of his own

“Frolic of his own” meaning

1. Acts do not benefit the employer

2. Acting against orders

3. Is not apart of the job

Cases for frolic of his own

Hilton v Thomas Burton

Case for akin to employment

Catholic Child Welfare Society

Catholic brothers test

1. employer is i0n a better position to compensate the victim than the ‘employee’

2. Tort was comitted as a result of activity being taken by the employee on behalf of the employer

3. The employee’s activity is likely to be apart of the business activity of the employer

4. The employer created the risk by employing the employee

5. There was control over the employee