Vicarious liability

Vicarious Liability (VL) is the rule that one person is liable for another's torts. Employer is VL for employee acts but employee remains primarily liable.

2. For employer to be liable 2 conditions must be satisfied

- 1. Tort must be committed by employee

- 2. Tort must be done “in the course of employment” (not on a frolic of their own)

3. Who is the employee?- law distinguishes between employees and independent contractors (IC). employer is only liable for actions of employees NOT IC’s.

- control test - telling person “what to do and how - 3.1 to do it”

Apply- who is telling who what to do?

- 3.2 - economic reality test established in Ready Mix Concrete V Minister of Pensions

1. Person agrees to work in return for payment

2. Person agrees expressly or impliedly to be under employers complete control.

Apply - are they being paid? Does anything suggest they aren't? Are they consenting by doing the job?

Ready Mix Concrete has been updated to include more factors to determine employee/IC:

O.I.R

- 1. Wage is being paid, tax/NI

- 2. Method of payment

- 3. tools/ equipment

- 4. Exercise over work hours and how work is done

- 5. Power to hire and fire assistants

All factors are considered/ weighed up ferguson V Dawson

Apply only relevant factors and how do they suggest employee/ IC

- 3.3 - connection test - is there a “close connection or a relationship akin to employment between what the employee did and what he was required to do to make employer was VL

Mohamud V Morrisons Supermarket

- O.I.R - A relationship other than one of employee can give rise to VL if carrying out activities for D’s business and for D’s benefit.

Cox V Ministry of justice

- O.I.R - if acting under a personal vendetta or personal motivations that are not benefiting the employer the test may not be satisfied.

Morrisons V Various

- O.I.R - if more than one employer has control over the employee they can then both be equally VL

Viasystems V Thermal Transfer

4. COMMITTED IN THE COURSE OF EMPLOYMENT?

- Each case is decided on policy grounds, on a case by case basis

- Can be any of the following:

○ 4.1 - employee carries out an unauthorised act but in an unauthorised manner acting against orders- if doing an act they are allowed to do but in a way that's unauthorised this is express prohibition.

■ Act still benefits employers even if against orders

Rose V Plenty

■ If doing what is authorised to do even against orders

Limpus V London

USE 1 OR THE OTHER FOR THIS

Unauthorised act but employer isn't benefiting will not make them VL

Twine V Beans Express

Apply- what have they done

○ 4.2 - Authorised work done negligently- just because it doesn’t benefit the employer they won't escape liability.

Century Insurance V NI Road Transport board

Apply- what negligent act have they done?

○ 4.3 travelling to and from work: if employee is being paid or given expenses then employer is VL

Smith V Stages

Apply how do you know they're being paid?

5. OUTSIDE THE SCOPE OF EMPLOYMENT?

○ 5.1 - frolic of their own - if employee takes a detour for their own benefit it will not be course of employment

Hilton V Thomas Burton

Unauthorised lifts on work time when forbidden is a frolic

Twine V Beans Express

O.I.R

- Activities not relevant to job is outside employment

Heasemans V Clanty cleaning

apply - what have they done?

○ 5.2 - employee commits criminal act - employer could be VL if close connection between crime and employment.

Lister V Hesley Hall

If no close connection then employer won't be liable for employee's actions.

N V CC of Merseyside Police

Apply - is there a close connection or not?

6. Conclude - is employer liable?

No defences applicable

7. Remedies - damages - special/ general - remoteness test - wagonmound