EXAM NOTES - Vicarious Liability

Question 1

what are the elements of the tort?

Answer 1

1. tort committed
2. relationship of vicarious liability
3. tort committed in the course of employment

Question 2

What torts satisfy vicarious liability?

Answer 2

any but usually negligence eg ICI v Shatwell - workers playing with explosives

Question 3

what needs to be determined to constitute a relationship of vicarious liability?

Answer 3

whether the tortfeasor is an employee or an independent contractor

Question 4

what is the primary test for an employee?

Answer 4

Ready Mixed Concrete v Minister of Pensions and National Insurance

• consider remuneration, level of control and other contractual factors
• Warner Holidays v SS for Social Services other factors include who provides equipment? pays tax? paid holidays/benefits? redundancy pay? sick pay? etc

Question 5

other than the Ready Mixed and the Warner factors, what else can be considered to determine an employee?

Answer 5

mutuality of obligations; more obligations, more likely to be an employee eg O’Kelly v Trusthouse Forte (casual wine waiter)

• labels used by each party are persuasive but not conclusive
• exclusivity Argent v Minister of Social Security - can you work for other people

Question 6

what is the rule for loaned workers?

Answer 6

Mersey Docks v Coggins and Griffith - rebuttable presumption that you sue the main contractor not the hirer but
o Look at who provides the equipment
o Look at who has the most control
o How specialised is the job? If not very specialised, likely to be employed by the hirer
- Viasystems v Thermal Transfer – CA held that there may be occasions where both could be sued

Question 7

what is the OLD test for whether a tort was committed in the course of employment?

Answer 7

OLD TEST
Is the act
-	Expressly or impliedly authorised 
-	Incidental to the employee’s duties
-	Unauthorised method of doing something authorised by the employer

Courts take a liberal approach eg Limpus v London General Omnibus (racing bus drivers) or Bayley v Manchester, Sheffield or Lincolnshire Railway (porter dragging someone off a train)

Question 8

what if the tortfeasor is not acting in the course of duties?

Answer 8

they’ll have been “on a frolic of his own” Joel v Morrison

Question 9

give some examples of cases where the tortfeasor was held to not be acting in the course of employment

Answer 9

• Beard v London Omnibus - bus conductor reversing a bus
• Keppel Bus v Sa’ad bin Ahmad - conductor attacking a customer
• Makanjuola v Manchester Police - policeman making an asylum seeker have sex with him
  Daniels v Wetstone Entertainment - bouncer following someone out of a club to assault them

Question 10

what special cases are there in terms of people acting in the course of their employment?

Answer 10

• express prohibition from employer, if valid
• deviation from an authorised route
• criminal act of the employee

Question 11

explain how express prohibition of the employer can put a worker outside the course of employment

Answer 11

Twine v Bean’s Express - picking up a hitchhiker.

Question 12

give a case showing how deviation from an authorised route can put a worker outside the course of employment

Answer 12

• Smith v Stages - employees were in course of employment because
  1) were within working hours
  2) were paid travel expenses
• depends on the extent of the deviation, when it happens etc

Question 13

explain how criminal acts can put workers outside employment

Answer 13

• generally outside course of employment eg Irving v Post Office writing racist letters
• but courts getting more flexible
• eg Mattis v Pollock (Flamingo’s Nightclub) bouncer who went home, got a knife and stabbed a customer was in course of employment because encouraged by boss
• also Lister v Hesley Hall - sex abuse in children’s home; look for a close connection between the tort and the nature of the employment and if very similar then could be in the course of employment

Question 14

Who can bring a vicarious claim if an employee commits a tort?

Answer 14

anyone, regardless of whether they are an employee or not - provided the tort is committed by an employee

Question 15

What are the rules for hitchikers?

Answer 15

• Twine v Bean’s Express; if expressly forbidden then tortfeasor will be outside course of employment
• Rose v Plenty: if a hitchiker assists they will be in the course of employment (helping deliver milk)

Question 16

What is the MODERN test for whether a tort is committed in the course of employment?

Answer 16

Lister v Hesley Hall applied in Mattis v Pollock

• is there a close connection between the tort or crime?
• if so the tort is likely to be in the course of employment