Vicarious Liability

Question 1

What is vicarious Liability?

Answer 1

• Where a 3rd person has legal responsibility for the unlawful actions of another, common at work where employers are responsible for actions of employees, who acted in the course of their employment

Question 2

4 reasons Why the rule exist?

Answer 2

• Compensation - Ensures Vs can claim compensation from someone with resources to pay
• Risk distribution - Employers are seen as benefiting from activities of employees and should bear the risk
• Encourages care - so Employer properly train,supervisse and select employees
• Policy based reasoning - Promotes fairness and justice by shifting liability to those who are in a better position to prevent harm

Question 3

What is the 2 part test to prove vicarious liability?

Answer 3

1. did the person commit the tort as an employee?
2. Did employee commit the tort ‘during the course of their employment?’

Question 4

What is the old 2 PART test of employment?

Answer 4

1. contract of service - employee
2. contract for service - independant contractor

Question 5

what are the 3 tests for testing employee status?

Answer 5

1. Control test
2. Integration test
   3.Economic Reality test

Question 6

Explain the control test

Answer 6

• used to determine who is vicariously liable by examining who has control over worker like what the worker does and how they do it
• often used where a worker is hired out to another company

Question 7

What did Mersey Docks and Harbour board v Coggins and Griffiths decide? in the control test

Answer 7

• control generally remains with the original employer un;ess clearly transfered

Question 8

What did Hawley v Luminar Leisure ltd decide? (Control test)

Answer 8

• Company with day to day control can be liable even if they are not the formal employer

Question 9

What did Viasystems ltd v Thermal Transfer ltd decide? (control test)

Answer 9

• More than one employer can be liable if control is shared - dual vicarious liability

Question 10

Explain the integration test (aka organisation test)

Answer 10

• Looks at whether worker is fully integrated into the organisation or merely an accessory to it and if they:
  1. work under the bussiness’s rules and procedures
  2. Appears as part of the staff
  3. Has a job that is central to the business’s functioning
• Developed to deal with roles like doctors and journalist where control is limited
• Often used alongside control test or economic reality

Question 11

Explain the Economic Reality test

Answer 11

• Considers various factors that may indicate employment or self employment - Ready mixed concrete ltd v minister of pensions and national insurance

Question 12

What was the 3 part Mckenna J test? that must be met before employment is identified?

Answer 12

1. worker agrees to provide work or skill for a wage
2. Employee expressly or impliedly accepts that the work will be subject to the control of the employer
3. all other considerations in the contract are consistent with there being a contract of employment rather than any other relaationship

Question 13

there are 5 more factors for the Mackenna J test what are they?

Answer 13

1. Ownership of any tools,plant or equipment - employee is less likey to own the equipment used at work
2. Method of payment - Employed person usually gets a salary, self employed gets pay after job is done
3. If tax,NI and pensions are deducted from employee wages - self employed has to submit self assessment and pay tax anually
4. Any job description - May describe as employee or self employed
5. Any independence in doing a job - amount of independence and flexibility in being able to take work from different sources and when and how to do it

Question 14

What did E v English province of our lady of charity decide?

Answer 14

• Vicarious liability could still apply even if they were not technically an employee if there is a relationship akin to employment
• The organisation selected,trained and assigned and had control over their role

Question 15

What did JGE v Trustees of the portsmouth roman catholic diocesan trust Decide?

Answer 15

• priest was not a formal employee but relationship was sufficiently close
• Bishop had power to appoint,discipline and remove priest
• Priest carried out duties on behalf of the church and had authority and trust over vulnerable people

Question 16

What did Mohamud v WM Morrisons Plc decide?

Answer 16

• Although employee acted wrongfully and outside instructions if actions were closely connected with their job there is liability

Question 17

What did Cox v Ministry of justice decide?

Answer 17

• relationship between prisoner and prison service was akin to employment even though he was not paid,had no formal contract
• Key was he was performing activities integral to the prisons operations under prison’s direction and control

Question 18

What did Fletcher v Chancery supplies ltd decide?

Answer 18

• limits mohamud v morrisons
• if assault happens aat work/during hrs it MUST be linked to employee’s role
• Employer is not liable if employee acts entirely on personal motives or is not interacting with customers in their assigned role

Question 19

What does “acting in the course of employment” mean?

Answer 19

• in order for employer to be liablle employee must have commit the tort in the course of their employment

Question 20

What are 4 Torts committed in the course of employement?

Answer 20

1. Acting against orders
2. Employee comitting a criminal act
3. Employee comitting a negligent act
4. Employee acting on a frolic of their own

Question 21

Explain acting against orders

Answer 21

• If employee is doing their job but act againsts orders in the way they do it employer can be Liable - Limpus v London General and **Rose v Plenty **
• No liability if employee does an unauthorised act and employers do not gain any benefit - Twine v Beans express
• If employee causes injury by doing something outside of what they are employed to do there is no liability - Beard v London general Omnibus co

Question 22

Explain “committing a criminal act”

Answer 22

• If employee commits a crime during their work the employer may be liable if there is close connection between crimme and employees job - Lister v Hesley hall and Mattis v Pollock(Close connection) and N v CC of Mersyside (no close connection)

Question 23

Explain “Employee commiting a negligent act”

Answer 23

• If employee does a job badly the employer can be liable for actions causing injury - Century Insuraance co.ltd v Northen Ireland road transports board
• encouraging employers to take greater care when selecting employees and providing training and supervision,however those who work from home may be difficult to monitor and would be unfair to accept liability

Question 24

Explain “Employee acting on a frolic of their own”

Answer 24

• If employee causes damage of injury doing something outside the area or time of work employer is not liable - Hilton v Thomas Burton ltd
• Smith v Stages - employee was paid during travel time so employer was liable as it was still seen in the course of their employment

Question 25

Explain the **payment of compensation**

Answer 25

* Employer will be primarily liable and can be ordered to pay compensation * Employer can deduct wages from employee