What is vicarious liability
Where a third person has legal responsibility for the unlawful actions of another. It is commonly seen in the workplace where the employer is responsible of the actions of an employee who acted in the course of their employment
What are the two main test required to prove vicarious liability
- was the person alleged to have committed the tort an employee?
- Did the employee commit the alleged tort during the course of his employment?
The control test
Oldest test
Yewens v Noakes = whether the master has the right to control what the employee did ad the way in which it was done
The control test - controls the employer had
Lord Thankerton:
- right to control the method of working
- right to suspend and dismiss
- the payment of wages
Hawley v Luminar Leisure
Development of the control test
indépendant bouncer was hired to work on a night-club (agency) and assaulted a party goer. C sued and because
- the club exercised so much control over the bouncer in how he should do his work, that it employed him and so they were vicariously liable
The integration or organisation test
Established by
- S.J.H v McDonald and Evans
a worker will be an employee if his work is fully integrated into the business.
The multiple test
Established by Ready mixed concrete.
- the employee agrees to provide work or skill in exchange for a wage (mutuality of obligations)
- The employee expressly or impliedly accepts that the work will be subject to control of the employer (control)
- All other consideration in the contract are consistent with there being a contract of employment rather than any other relationship. (personal performance = ability to delegate work?)
ways of identifying employment status
- ownership of tools plant or equipment = an employee is less likely to own the plant and equipment used to work
- method of payment = a self employed person is likely to take payment for a whole job whereas an employee would be a salary
- if tax, NI and pension contributions are deducted from an employees wage = self employed would have to submit self assessments and pay tax annually under schedule D
- any description of role = where a person either describes themselves as self employed or an employee
- any independence when doing the job = how much independence and flexibility does the person Gael web doubt the work
personal performance - delegate work
Express v Tankton
Van driver could employ someone else to do his job if he wasn’t able to. Van was provided by the company
HOWEVER
the ability to delegate work would consider someone as an independent contractor
no mutual obligations between parties
Carmichael v national power
C was a tour guide and was contacted when needed however withheld possibility of declining work.
For this there were NO MUTUAL OBLIGATIONS and therefore not an employee
Salmond test
A tort is committed during the course of employment if:
- doing a wrong act authorised by the employer
- doing an act in the wrong way but employer authorises
Wrong way of doing an authorised act cases
Century insurance v NI road transport = driver lit cigarette when delivering petrol, explosion damaged Cs property
Unauthorised act
Beard v London omnibus = bus conductor (NOT DRIVER) decided to turn bus around and injured member of the public. Defendant not found liable because it wasn’t a part of his job
Unauthorised act unless employer financially benefits from sed act
Rose v Plenty = milkman brought a 13 year old around to help him with his round despite ban under company policy. Defendants vicariously liable because they benefited from the 13 year olds work
employee committing a criminal act
Lister v Helsey hall = warden of school sexually abused children. He was convicted of criminal offences. Employer found liable because they gave him the place to commit the criminal acts
Employer found liable where they instructed employees work
Bouncer in nightclub seriously injured C. Employers were found vicariously liable because they instructed the bouncer to be aggressive and intimidating
Mattis v Pollock
Acting on a frolic of their own
When employee causes damage or injury while doing something outside the area or time of their work the employer will not be liable
Hilton v Thomas Burton
Workers went for a coffee break and took employers vehicle as transportation. Caused accident on the way.
employers NOT liable because the employees were acting on a frolic of their own
