What is meant by secondary liability?
The defendant is being held liable for another’s wrong doing.
What does vicarious literally mean?
On behalf of another.
What reasons have been given for holding someone vicariously liable?
- The employer is a better position financially (due to the Employers’ Liability (Compulsory Insurance) Act 1969);
- The employer exercises control and supervision of his employee;
- An employer may be negligent in selecting his employees;
- An employer obtains benefit from his employees so should expect the burden;
- Vicarious liability incentivizes a higher standard of care amongst employers including training, supervision, and control.
How do you establish vicarious liability? What are the three elements?
- Identify a tort that has been committed by an employee (X);
- Identify the relationship between X and D;
- Determine that the tort was committed during the course of employment.
Does a ‘contract of service’ or ‘contract for services’ lead to a possible vicarious claim?
Contract of service
What are the three tests for establishing a contract of service between employer and employee?
- The Control Test (Yewens v Noakes)
- The Organisation or Integration Test (Stevenson, Jordan and Harrison v MacDonald v Evans)
- The Multiple or Economic Reality Test (Ready Mixed Concrete v Minister of Pensions)
Which of the test used for establishing a contract of service between employer and employee is the one used today?
The Multiple or Economic Reality Test (Ready Mixed Concrete v Minister of Pensions)
What was the three stage test laid down by McKenna J in Ready Mixed Concrete v Minister of Pensions to determine whether there is an employment relationship between X and D?
- Remuneration - was X paid by D?
- Control - did D have control over X?
- Were other provisions consistent with a contract of service?
In Warner Holidays v Secretary of State for Social Services what did McNeil J include in his list of factors that could determine whether D was an employer of X?
- Level of control
- Provision of tools and equipment
- Salary
- tax/PAYE/national insurance
- sick pay
- bearing the risk of profit or loss
- residual control
- control over hours of work
- right/ability to do work
- how parties describe their relationship ie labelling
- mutual obligations between D and X
As a general rule who would be liable if an employer lent a worker to a hirer, and the worker committed a tort while under the hirer’s supervision?
The employer (Mersey Docks and Harbour Board v Coggins and Griffiths)
Which case said it was possible for both employer and hirer to be equally liable for an employer?
Viasystems Ltd v Thermal Transfer Ltd
What is Winfield’s definition of ‘course of employment’?
An act which is either:
- Express or implied authorisation by the employer; or
- Incidental to the carrying out of the employee’s proper duties; or
- An unauthorised way of doing something authorised by the employer
Give three examples the courts have found of an employee doing an authorised act in an unauthorised manner.
- Limpus v London General Omnibus Co - bus driver’s were racing eachother down The Strand;
- Bayley v Manchester, Sheffield and Lincolnshire Railway - a porter injured a passenger while pulling him off a train because he had got on the wrong one;
- Century Insurance v Norther Ireland Road Transport Board - a lorry driver was smoking while filling up his lorry with petrol and caused an explosion.
What is the establishing authority for an employee being on a ‘frolic of his own’?
Joel v Morrison
Which case establishes that an employer can avoid liability by expressly prohibiting their employees from taking certain actions?
Twine v Bean Express where lorry drivers were expressly forbidden from picking up hitch-hikers.
When may the employer avoid liability if the employee has deviated?
A new and independent journey nothing to do with an employee’s employment will not fall vicariously on the employer. Other deviations depend on the amount of detour.
What principle do we get from Smith v Stages?
If the incident occurs within working hours the employer could be liable. Employers will not be liable for their employees’ negligence during travel to and from work.
