vicarious liability

Question 1

What is the legal definition of ‘vicarious liability’?

Answer 1

It is the liability of one party for a tort committed by another party.

Question 2

Vicarious liability is not a tort in itself, but rather a determination of what?

Answer 2

It is a determination of who is potentially liable for a tort.

Question 3

Vicarious liability is described as a form of _____ liability.

Answer 3

secondary

Question 4

What is the term for liability that is imposed despite the absence of any fault on the part of the defendant?

Answer 4

Strict liability.

Question 5

What is the first of the three elements that must be satisfied to establish vicarious liability?

Answer 5

A tort has been committed by Party A.

Question 6

What is the second of the three elements that must be satisfied to establish vicarious liability?

Answer 6

Party A is an employee of Party B, or in a relationship akin to employment with Party B.

Question 7

What is the third of the three elements that must be satisfied to establish vicarious liability?

Answer 7

The tort was committed in the course of Party A’s employment or quasi-employment.

Question 8

Besides negligence, name four other torts for which an employer might be held vicariously liable.

Answer 8

1. Assault
2. battery
3. false imprisonment
4. defamation

Question 9

What is the current test used by courts to determine if a tort was committed ‘in the course of employment’?

Answer 9

The ‘close connection’ test.

Question 10

Which 2002 case was key in establishing the ‘close connection’ test?

Answer 10

Lister v Hesley Hall Ltd [2002] 1 AC 215.

Question 11

In Lister v Hesley Hall Ltd, why were the warden’s torts considered closely connected with his employment?

Answer 11

His position of employment enabled him to exploit the children, and the torts occurred on the employer’s premises during work hours while performing his duties.

Question 12

Which 2016 Supreme Court case provided further guidance on the close connection test, holding it to be two-fold?

Answer 12

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 1.

Question 13

What is the first question in the two-fold ‘close connection’ test from Mohamud v WM Morrison?

Answer 13

What functions or ‘fields of activities’ have been entrusted by the employer to the employee?

Question 14

What is the second question in the two-fold ‘close connection’ test from Mohamud v WM Morrison?

Answer 14

Was there sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just for the employer to be held liable?

Question 15

In Mohamud v WM Morrison, the abuse was considered an unbroken sequence of events that started with an act closely connected to the employee’s duties, described as a ‘_____’.

Answer 15

seamless episode

Question 16

In Fletcher v Chancery Lane Supplies [2016], why was the employer not held vicariously liable for their employee negligently crossing a road?

Answer 16

There was no evidence that crossing the road was sufficiently connected to the employee’s work at the time of the accident.

Question 17

Historically, what was the first limb of the test to determine if an act was in the course of employment?

Answer 17

The wrongful act was expressly or impliedly authorised by the employer.

Question 18

Historically, what was the second limb of the test to determine if an act was in the course of employment?

Answer 18

The wrongful act was incidental to the carrying out of the employee’s proper duties.

Question 19

Historically, what was the third limb of the test to determine if an act was in the course of employment?

Answer 19

The wrongful act was an unauthorised way of doing something authorised by the employer.

Question 20

In Century Insurance v Northern Ireland Road Transport Board [1942], why was the employer held liable for the driver causing an explosion?

Answer 20

The driver was doing an authorised act (filling the lorry) in an unauthorised manner (smoking at the same time).

Question 21

In Harvey v RG O’Dell [1958], why was an employee travelling to get lunch considered to be in the course of employment?

Answer 21

It was considered incidental to his work, as stopping for a lunch break was a reasonably expected act.

Question 22

In Rose v Plenty [1976], on what basis did Denning LJ hold the employer vicariously liable for the milkman’s prohibited act?

Answer 22

The prohibited act of enlisting help was done ‘for the employer’s business’.

Question 23

In Smith v Stages [1989], what is the material question in determining if an employee travelling on the highway is in the course of employment?

Answer 23

Whether they are going about their employer’s business at the material time.

Question 24

What is the traditional legal phrase for an employee’s act that is unauthorised or expressly prohibited, for which the employer is not liable?

Answer 24

A ‘frolic of their own’.

Question 25

In *Beard v London General Omnibus Co* [1900], why was the employer not liable for the bus conductor's negligent driving?

Answer 25

Driving the bus was not an authorised act, nor was it incidental to his duties as a conductor.

Question 26

In *Storey v Ashton* (1869), why was a deviation from a delivery route to visit relatives not considered in the course of employment?

Answer 26

The deviation was considered a new and independent journey, entirely for the employee's own purpose.

Question 27

In *Twine v Bean's Express Ltd* [1946], why was the employer not liable for injuries to a hitchhiker picked up by an employee driver?

Answer 27

The driver was doing something expressly prohibited and not for the employer's business, making the hitchhiker a trespasser.

Question 28

How did Denning LJ distinguish the case of *Rose v Plenty* from *Twine v Bean's Express Ltd*?

Answer 28

In *Rose*, the prohibited act was done for the employer's business (delivering milk), whereas in *Twine* it was not.

Question 29

When two parties, such as an employer and employee, are liable for the same tort, they are known as what?

Answer 29

Joint tortfeasors.

Question 30

Under which Act may an employer be entitled to seek an indemnity from their employee for a tort?

Answer 30

The Civil Liability (Contribution) Act 1978.

Question 31

A court will allow an employer to claim a contribution from an employee if it is '_____ and _____' to do so.

Answer 31

just and equitable

Question 32

Why is an employer's right to a contribution from an employee rarely exercised in practice?

Answer 32

Insurers comply with a 'gentleman's agreement' not to pursue the employee.

Question 33

What are the two exceptions to the 'gentleman's agreement', where an insurer might seek contribution from an employee?

Answer 33

In cases of wilful misconduct or collusion by the employee.