Vicarious liability

Question 1

What is vicarious liability?

Answer 1

Vicarious liability is where a third person/party has legal responsibility for the unlawful actions of another.

Question 2

What 3 things are needed to prove vicarious liability?

Answer 2

1. The employee must have committed a tort.
2. The worker concerned must have employee status
3. The employee must have committed the tort during the ‘course of his employment’.

Question 3

How do they test employment status?

Answer 3

There have been several tests created in order to decide whether an employee will have employee status. Before the test where created they would look at if they have a ‘contract of services’ or ‘contract for services’.

Question 4

What is the control test?

Answer 4

• Oldest test created by the courts to test for employment status.
• Yewens V Noakes- test was whether the employer had the right to control what the employee did and the way ion which it was done.
• McArdie J, stated the test concerns ‘the nature and degree of detailed control’
• Has become more difficult to apply in recent times, was successfully applied in Hawley V Luminar leisure.

Question 5

What is the integration test?

Answer 5

• Established in the case of Stevenson Jordan and Harrison V McDonald and Evans in 1969.
• Provides that a worker will be an employee if his work is fully integrated into the business.
• If their work is only an accessory to the business they will not be considered an employee.

Question 6

What is the multiple test?

Answer 6

• New test was established in the case of Ready mix concrete V Minister of pensions and NI.
• Originally 3 factors which would be considered to decide whether or not they will be considered an employee but has since been updated so that all relevant facts will be considered.

Relevant factors include:

• Ownership of tools/ equipment
• Method of payment
• Is tax automatically deducted from wages?
• How much independence do they have when undertaking the job role?

Illustrated in:

• Carmichael V National power
• Ferguson V Dawson

Question 7

What recent developments have been made in the multiple test?

Answer 7

In recent years there have been a number of cases in which there was no traditional employment relationship.

McE V De La salle brothers-
- Could not hold employer vicariously liable, prevent cases flooding the courts.

Mohamud V Morrisons supermarkets-
- To consider, in everyday language whats the nature of his job and was there sufficient connection between position they were employed in and the conduct to make it right for the employer to be liable.

Cox V Ministry of justice-
- Court stated that the relationship between the prisoner and the the prison service was similar to that of employer and employee.

Fletcher V Chancery supplies-
- No reason as to why he left the shop, therefore no sufficient connection between his work and the accident to make the employer responsible.

Question 8

Can more than one employer be vicariously liable?

Answer 8

Viasystems V Thermal transfer-

• Claimants contracted with D1, who subcontracted work D2 who agreed with D3 to provide fitters and fitters mates.
• Were D2 or D3 liable for S’s negligence or were both liable?

In cases such as these the responsibility for each ‘employer’ is equal and therefore each has to contribute 50% of the damages to the claimant.

Question 9

What is meant by acting in the course of employment?

Answer 9

For the employer to be liable the employee has to commit the tort during the course of their employment.
- This is based on ‘policy’ and so this can lead to inconsistencies in the judgements that are made.

Question 10

What is meant by acting against orders?

Answer 10

If employee is doing his/her job but acts against orders in the way they do it, the employer can still be liable.

Limpus V London General Omnibus-

• Employer instructed bus drivers to not race other drivers when getting passengers.
• Caused an accident when racing, the employer was liable.

Rose V Plenty-

• Instructed milkmen to not use child helpers on rounds, boy was injured due to negligent driving.
• Vicariously liable for actions as employer was still benefitting from the work done by the boy.

However if they employee gives an unauthorised lift to someone the employer will not be liable:

Twine V Beans Express-
-Liable as the driver was doing unauthorised act and the employers were gaining no benefits from it.

Question 11

What is meant by acting outside of employment?

Answer 11

If employee cases injury by doing something outside of their employment, the employer will not be liable.

Beard V London General Omnibus-

• Bus conductor, drove bus without authority.
• Employer not liable as was outside of his employment.

Question 12

What happens when the employee is committing a criminal act?

Answer 12

Employer may be liable if there is a close connection between the crime and what the employee was employed to do.

Lister V Hesley Hall-
- Close connection between his job and the sexual assaults as they were carried out on school premises.

Mattis V Pollock-

• Bouncer inflicted serious injuries on a customer and was jailed.
• Nightclub vicariously liable as he was encouraged to use force and be violent/intimidating. So actions were closely connected to his work.

N V Chief constable of Merseyside -
- If a police officer uses his uniform to gain trust of people before committing a crime which was not closely related, employer will not be liable.

Question 13

What happens when the employee committees a negligent act?

Answer 13

If they do their job badly the employer can still be liable for his actions which cause injury.

Century Insurance V Northern Ireland Road Transport Board-
- Employer was liable to pay compensation as the driver was still doing his job, even though it was negligently.

Question 14

What happens when the employee is acting on a ‘frolic’ of their own?

Answer 14

If cause injury/damage to another while doing something, or at a time, outside the area or time of their work the employer will not be liable.

Hilton V Thomas Burton-
- Employer not liable to pay compensation to the victim as the workmen were on an unauthorised ‘frolic of their own’ as they had taken an unauthorised break.

Smith V Stages-

• Employee was driving back to his place of work after working elsewhere.
• Employer liable as he was acting in the course of his employment as he was being paid for travelling time.

Question 15

Liability for independant contractors?

Answer 15

Employer will only be liable for those on a contract ‘of service’ and not contracts ‘for service’.

An independant contractor should have his own liability insurance cover and has limited employment rights.