VICARIOUS LIABILITY
Establish the tort committed through the usual route
(Negligence, trespass, nuisance?)
Within the course of employment
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'
Warner Holidays v Secretary of State
Sets out the points to look for an employer relationship
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
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
Professor Salmond - 'A tort is committed in the course of employment if...
It is expressly or impliedly authorised
Deviations from the route - is it a new independent journey?
Close connection test - is the act/tort closely connected to the employment
Joel v Morrison
Employee was on a 'frolic of his own' and deviated from his route therefore no vicarious liability
Lister v Hesley Hall
Abuse was closely connected with his employment because this tort only occurred due to his job position
JGE v Trustees of PRCDT
Court extended the concept of vicarious liability 'when there is a relationship akin to employment'
or is an unauthorised manner of doing something that is authorised
or is necessarily incidental to something that the employee is employed to do
Limpus v London General Omnibus Co
Century Insurance Co