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Vicarious Liability (There must be a relationship between tortfeasor and…
Vicarious Liability
There must be a relationship between tortfeasor and defendant (typically employer/employee relationship. If the tortfeasor is an employee the employer will be liable, but if the tortfeasor is an independent contractor the defendant will not be liable. There are different tests to see whether a tortfeasor is an employee or not.
The 'Control' Test:
This is the traditional test used to decide if the tortfeasor is an employee. In YEWENS v NOAKES (1880) Baron Bramwell said “an employee is a person subject to the command of his employer as to the manner in which he shall do his work.” So if the employer has the right to control what the tortfeasor does and the way in which it is done - he is likely to be an employee.
However, the control test isn’t always appropriate, the culture of work has evolved and now control is merely one of the criteria that will be taken into account to decide whether the worker is an employee.
As a result the ‘Control’ test it isn’t applied in situations where the worker supplied knows more about the technicalities of his role than the employer. In this situation the more modern approach, the ‘multiple test’ is applied.
A modern example of the use of the Control test is HAWLEY v LUMINAR LEISURE (2006) - a bouncer was supplied to a nightclub by a firm of specialists. The bouncer assaulted a customer outside the club. The court held that it was the nightclub who were the ‘employer,’ not the firm who supplied him, as the club had so much control over how he carried out his work.
The 'Multiple' Test
The multiple test evolved in RMC v MINISTRY OF PENSIONS takes into account 3 key factors which must all exist for the worker to be classed as an employee. If all 3 exist factors exist the worker is more likely to be an employee than not.
3 Key Factors
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Personal performance - if the work is of the sort that can’t be delegated to another, the person is likely to be an employee. In EXPRESS & ECHO PUBLICATIONS v TANTON (1999) a van driver whose van was supplied by the company was able to employ someone else to do his job of delivering newspapers if he was not available. He was classed as an independent contractor because the worker could delegate the work to someone else.
Mutuality of obligations between the employer and the worker - The employer must for example pay the worker and the worker must be available for the work in accordance with the terms of the contract. In CARMICHAEL v NATIONAL POWER the worker worked as a tour guide at a coal-fired power station. The company would contact her when they needed her to work, but she could refuse to work if she chose to do so. She was paid hourly for the work she did. The court held she was not an employee as neither side had a legal obligation to the other.
The factors are useful in identifying the status of the worker but there isn’t a definitive test and applying the factors can result in conflicting results. So each case is decided on its own merits.it still isn’t conclusive evidence that they are and a range of other factors can also be considered according to their significance.
Additional factors that suggest the worker IS AN EMPLOYEE include: Paid a regular salary, Pays income tax and national insurance contributions through his payroll, Needs permission to delegate work, Premises and equipment are supplied by the employer, Not personally affected by their own investment and management decisions, If the worker is described as an employee in their contract
Additional factors that suggest the worker IS AN INDEPENDENT CONTRACTOR include: Paid commission, Pays tax and NI as a self-employed person, Can delegate work without permission, Uses their own premises and equipment, Personally affected by their own investment and management decisions, Worker is described as an independent contractor in their contract.
The Integration or Organization test: This test was established by Lord Denning In Stevenson Jordan & Harrison Ltd v McDonald & Evans (1969). According to this test a worker will be an employee if his work is fully integrated into the business. Thus, if the workers work is only accessory to the business, not integral to it, the person isn’t an employee.
DEFINITION: Where liability is placed on one person for the tortious act or omission of another. It is usually seen where the employer is held liable for the damage caused by their employee, where the employee acted in their course of employment.
Requirements: 1. The claimant must suffer loss/injury as a result of a tort. 2. There must be a relationship between the defendant and the person who commits the tort (usually employer/employee). 3. There must be a connection between the tortious act or omission and the relationship . IF THE ABOVE CRITERIA EXIST, THE EMPLOYER WILL BE LIABLE FOR THE TORT OF THE EMPLOYEE.
There must be a connection between the tortious act and the relationship. This will be satisfied if the act was committed during the course of employment.
The traditional 'Salmond Test' is used to establish this. that is if it is: a wrongful act authorised by the employer, or a wrongful and unauthorised way of doing something authorised by the employer.
If the act is not authorised it will not be deemed to be in the course of employment and the employer will not be vicariously liable (CONWAY v WIMPEY; LIMPUS v LONDON GENERAL OMNIBUS) unless the employer benefits from the act, and if so, they might still be vicariously liable (ROSE v PLENTY).
Even if the act is something that is expressly forbidden by the employer, the employer can be vicariously liable if it is done whilst the employee is carrying out an authorised act (LIMPUS v LONDON GENERAL OMNIBUS).
If the employee is engaged in a ‘frolic’ of their own, then the employer will not be liable. That is if the employee causes damage to another while doing something, or at a time, outside the area or time of their work (SMITH v STAGES; HILTON v THOMAS BURTON LTD.).
In a situation where the employee commits a tort in the course of their employment, but that tort is a criminal offence the authority is LISTER v HESLEY HALL (2002). The House of Lords established a new test for considering whether an intentional criminal tort was committed in the course of employment.
The test is whether the acts of the employee are so closely connected with his employment that it was fair and just to hold the employer liable.
‘Close connection’ - the Supreme Court in Catholic Children's Welfare Society - CCWS v VARIOUS CLAIMANTS (2012) identified ‘welfare risk’ as a key factor in deciding when employers are vicariously liable for the deliberate wrongdoings of their employees. This means in situations where the defendant is in a position to use the employee to further its business interests, and has done so in a way that created or significantly enhance the risk that the victims would suffer the wrongdoing, they are likely to be held to vicariously liable for the tort in question.
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