Vicarious Liability

Question 1

Define Vicarious Liability

Answer 1

Vicarious Liability is where one party (typically an employer) is held responsible for the torts committed by another (typically an employee), even if the employer is not personally at fault

Question 2

What are the key elements required to establish Vicarious Liability

Answer 2

• Claimant suffers loss or injury
• Relationship between tortfeasor and defendant
• Connection between tortious act and the relationship

Question 3

What do you need to firstly identify when writing answers to Vicarious Liability

Answer 3

Say what the tort is, and identify the harm suffered by C, then consider the rest of the three-part test for VL

Question 4

How do you establish relationship between tortfeasor and the defendant

Answer 4

• Employer/Employee Relationship
• “Akin” to Employment

Question 5

Explain Independent Contractors For Vicarious Liability

Answer 5

An employer is not vicariously liable for the wrongful acts (torts) of an independent contractor (provides his own equipment and kit)
Case: Barclays Bank v Various Claimants: No vicarious liability as the doctor was a genuine independent contractor, not akin to employment. There was no close connection.

Question 6

How is an Employee-Employer Relationship established

Answer 6

Either using a control test or an entrepreneur test

Question 7

What does Bramwell B state about the control test

Answer 7

In Yewens v Noakes, he states that “an Employee is a person subject to the command of his employer as to the manner in which he shall do his work.”

Question 8

Explain the Control Test

Answer 8

If T told what to do and how to do it
Case: Hawley v Luminar Leisure - A nightclub was held vicariously liable because it exercised significant control over a bouncer, even though he was supplied by a security firm.

Question 9

Explain the Entrepreneur Test

Answer 9

This tests asks whether the tortfeasor is an independent contractor
Case: E v English Province of Our Lady of Charity - The independent contractor works in and for his own business at his own risk of profit or loss (includes own kit provided or pay only for work done

Question 10

Explain Akin to Employment

Answer 10

This means the tortfeasor’s relationship with the defendant is so similar to that of an employee that it is fair and just to impose vicarious liability.
Case: Catholic Child Welfare Society v Christian Brothers - A religious institute was vicariously liable for abuse carried out by its members as they shared a ‘common purpose’.

Question 11

What are the five factors for ‘akin’ to employment relations from CCWS v Christian Brothers

Answer 11

Compensation – The defendant can pay and is likely insured.
Work Role – The tort happened while doing tasks for the defendant.
Part of Business – The work was part of the defendant’s business or purpose.
Risk Created – The defendant created the risk by assigning the role.
Control – The defendant had some control over the tortfeasor.

Question 12

Examples of Relationships ‘Akin to Employment’

Answer 12

Catholic Child Welfare Society v Christian Brothers - Religious order and its members.

Cox v Ministry of Justice Prisoner - working in kitchen and prison service.

Armes v Nottinghamshire County Council - Foster parents and local authority

Question 13

Explain Connection between tortious act and the relationship

Answer 13

Was there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it right for the employer to be held liable
Case: Morrison Supermarkets v Various Claimants - An employee leaked colleagues’ data out of personal revenge.
The court held there was no close connection between the wrongful act and his job role, so Morrison was not vicariously liable. (Unauthorised Act)

Question 14

What does Lord Reed State in Morrison Supermarkets v Various Claimants

Answer 14

Lord Reed states “It is important to consider whether an employee was acting on his employer’s business, or for purely personal reasons.”

Question 15

What types of acts are there in the Close Connection Test

Answer 15

• Authorised Acts (Employer is vicariously liable)
• Unauthorised Acts (Employer is not vicariously liable)

Question 16

Give a case for an Authorised Act (1)

Answer 16

Case: Century Insurance v NI Road Transport Board - A tanker driver caused an explosion by lighting a cigarette while delivering petrol. Held: He was doing an authorised job negligently – employer liable due to a close connection.

Question 17

Give a case for an unauthorised Act

Answer 17

Case Limpus v London General Omnibus - A bus driver raced another bus and caused an accident, despite being told not to. Held: the defendant employer was vicariously liable as racing the bus was an unauthorised way of performing his authorised duty

Question 18

Explain Case of Rose v Plenty for Authorised Act

Answer 18

Milkman disobeyed orders by letting a child help deliver milk.
Held: He was doing an authorised act in an unauthorised way – employer liable as the boy was helping the business.

Question 19

Explain in an unauthorised act when the D is on a “frolic of his own”

Answer 19

Case: Beard v London General Omnibus - A bus conductor drove the bus without permission and injured someone.
Held: He was doing an unauthorised act outside his duties – a frolic of his own – so the employer was not liable.