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VICARIOUS LIABILITY (Committed by an employee? (Warner Holidays v…
VICARIOUS LIABILITY
Committed by an employee?
Economic reality test
Ready-Mixed Concrete v Minister or Pensions and NI
'he who owns the assets and bears the risks is unlikely to be a servant'
Type of remuneration
(paid through invoice or salary?)
Control of employer
(the more control over the individual, the more likely to be an employee)
Other contractual features
Warner Holidays v Secretary of State
Sets out the points to look for an employer relationship
Mutuality of obligations
Okelly
Waiter employed on a casual basis meaning he did not need to work and employer did not need to provide work
Labelling - doesn't matter how the parties label the relationship
TAX/NI
Can employee do other work
Agency workers
Mersey Docks
General rule that the employer who lends their employee to another employer, the original employer remains liable
Fire Systems Ltd v Thermal Transfer
It is possible for both employers to be liable
Where D is not an employee
Cox v Ministry of Justice
Unless you can show that the tort was committed as a result of activity being undertaken on behalf of the employer,
the employees activity is part of the employers business activity and
the employer crated the risk of the tort committed
then relationships out of employment rarely give rise to vicarious liability
JGE v Trustees of PRCDT
Court extended the concept of vicarious liability 'when there is a relationship akin to employment'
Within the course of employment
Professor Salmond
- 'A tort is committed in the course of employment if...
It is expressly or impliedly authorised
or is an unauthorised manner of doing something that is authorised
Limpus v London General Omnibus Co
or is necessarily incidental to something that the employee is employed to do
Century Insurance Co
Deviations from the route - is it a new independent journey?
Joel v Morrison
Employee was on a 'frolic of his own' and deviated from his route therefore no vicarious liability
Close connection test - is the act/tort closely connected to the employment
Lister v Hesley Hall
Abuse was closely connected with his employment because this tort only occurred due to his job position
Establish the tort committed through the usual route
(Negligence, trespass, nuisance?)