For the introduction…
What is Vicarious Liability ?
Vicarious Liability is where the defendant is responsible for the tort of another, (the tortfeasor)
Which two key cases must be included under Vicarious Liability ?
- Barclays Bank plc v VC (2020)
- Morrisons Supermarket v VC (2020)
What are the three areas, which must be analysed to assess liability for Vicarious Liability ?
- ‘Tortfeasor committed an actionable tort’
- ‘Employment status’
- ‘Connection between the relationship of employment, and the tortfeasors wrongdoing’
What is the first test to be used to assess liability for Vicarious Liability ?
‘Tortfeasor committed an actionable tort’
What is meant by ‘tortfeasor committed an actionable tort’ ?
Which case comes under this area ?
The tortfeasor must have committed a tort rather than a crime: has the C has suffered a loss/ injury
(Poland v Parr).
What is the second test, to establish liability, for Vicarious Liability ?
‘Employment status’
What is the general rule for ‘employment status’ ?
What is the main aim of this area ?
The person alleged to have committed the tort must be an employee.
Clarify whether the tortfeasor, was an employee or independant contractor.
What is the distinction between employees, and independant contractors ?
Which case comes under this area ?
Employees - Work under a ‘contract of service’
Independant Contractor - Work under a ‘contract for services’
Barclays Bank plc v VC (2020)
What are the two routes to establishing employment status, for Vicarious Liability ?
When should either be used ?
-Old test
-New updated test
The old three-part test, should be used for traditional scenarios, when the employment status of the tortfeasor is unambiguous and clear.
-The new, updated five-part test, should be used for less traditional working dynamics, when employment status is more ambiguous - through this, its merely established that the relationship is ‘akin to employment’.
What is the control test ?
Which case defines this area ?
An independent contractor was someone who was told ‘only what to do’ whereas an employee was ‘not only told what to do but how to do it’.
Hawley v Luminar Leisure LTD
What is the integration test ?
Which case defined this area ?
A worker will be an employee if his work is fully integrated into the
business. And, if a person’s work is only accessory to the business, that person is not an employee.
Lord Denning in Stevenson Jordan and Harrison Ltd v McDonald and Evans.
What are the six factors to consider under the economic reality/multiple test ?
Which case established this test ?
- The employee agrees to ‘provide work or skill in return for a wage’.
- The work will be ‘subject to the control of the employer’.
- Whether the worker pays ‘income tax/national insurance contributions’
- Whether the ‘contract describes the worker as an employee’ or not.
- Whether the ‘worker can delegate his work to another without permission’.
- All other considerations in the contract are consistent with there being a ‘contract of employment rather than any other relationship between the parties’.
Ready Mixed Concrete (South East) Ltd v MPNI.
What is the new five part test, for employment status ?
Which two cases established this test ?
a) The employer is more likely to have the ‘means to compensate the victim and can be expected to have insurance’
b) The act that is committed is ‘a result of activity being taken by the employee on behalf of the employer’;
c) The employee’s activity is likely to be ‘part of the business activity of the employer’;
d) The employer by employing the employee to carry out on the activity will have ‘created the risk of the act being done’;
e) The employee will to ‘some degree have been under the control of the employer’.
-Catholic Child Welfare society
-Lister v Hesley Hall
What is the third stage to establish liability for Vicarious Liability ?
‘Connection between the relationship of employment, and the tortfeasors wrongdoing’
Which two tests are used when establishing ‘connection between the relationship of employment and the tortfeasors wrongdoing’ ?
Include case *
-‘During course of employment’
-‘Actions passing the close connection test’
Dubai Aluminium v Salaam.
What is the two-part test to establish whether the tortfeasors conduct is ‘during the course of employment’ ?
-‘The court must ask what function or field of activities has been entrusted by the employer to the employee (nature of job).
This is to be viewed broadly*
-The court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.’
What are the actions, passing the close connection test ?
-Authorised acts
-Authorised act done in a way which is prohibited
-Criminal acts that are ‘closely connected’
-Acting against orders
What is the ruling for ‘authorised acts’, under the close connection test ?
Which case comes under this area ?
An employee is acting within the course of his employment if he is carrying out an act authorised by his employer
Century Insurance v Northern Ireland Road Transport Board 1942.
What is the ruling for ‘authorised acts done in a way which is prohibited’, under the close connection test ?
Which case comes under this area ?
‘Where an employee carries out an act that they are forbidden to
do, or undertakes an act negligently, but does so in the course of executing their contractual duties’
Rose v Plenty
What is the ruling for ‘criminal acts that are ‘closely connected’, under the close connection test ?
Which case comes under this area ?
The fact that the tortfeasor’s acts amount to a crime, does not prevent liability being imposed vicariously.
A M Mohamud v WM Morrisons Supermarket plc (2016)
What is the ruling for ‘acting against orders’, under the close connection test ?
Which case comes under this area ?
If the employee is doing their job but acts against orders in the way he or she does it, the employer can be liable
Limpus v London General
What are the actions, that do not pass the ‘close connection test’ ?
-‘Unauthorised acts’
-‘Acts undertaken outside of the employment remit’
-‘Criminal Acts that are not ‘closely connected’’
What is the ruling for ‘unauthorised acts’, under the close connection test ?
If an employee undertakes an act that is unauthorised and outside of an employee’s contractual duties, it will not form the basis of a claim under the principles of vicarious liability.
What is the ruling for ‘acts undertaken outside of the employment remit’, under the close connection test ?
Which case comes under this area ?
-That if injury / loss was caused to the claimant whilst the employee was outside the location or time of their employment, the employer generally will not be vicariously liable.
-Coincides with the idea of ‘frolic of his own’…
Shelborne v CRUK 2019.
