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What is vicarious liability? - Coggle Diagram
What is vicarious liability?
Definition
Strict liability
The claimant need only prove that the tort occurred and that the defendant was responsible.
The law imputes strict liability to situations it considers to be inherently dangerous.
The imposition of liability on a party without a finding of fault (such as negligence or tortious intent)
This is when one person is liable for the torts committed by another.
Who is an employee?
The control test
Devised in
Ferguson v Jon Dawson and Partners (Contractors) Ltd (1976)
.
The test is not suitable for modern employment patterns, because not all employees are under direct control of their employer.
The court considers the degree of control the employer had over the employee in terms of how there work was completed.
Business integration test
Devised by Lord Denning in
Stevenson, Jordan and Harrison Ltd v MacDonald
Suggested that a contract of employment would exist where the employee's work is carried out as an integral part of the business.
Multiple test
Was introduced in
Ready and Mixed Concrete (South East) Ltd v Minister of Pension and NI (1968)
as the Business integration test became inadequate.
Held that three conditions must be fulfilled for a contract of service to exist:
1.
the worker agrees for the payment of a wage to provide work or skill for the other person.
2.
they agree to be under the other person's control, so that it makes the other the master.
3.
other terms of the contract are consistent with the contract being one service.
the contract will be regarded as one for services if the parties state in a contract that a person will be self-employed and the other terms of the contract reflect this.
Business on their own account test
Approach was taken in
Market Investigations Ltd v Minister of social Security (1969)
.
The question of whether the worker is performing the service as a person in business or on their own account was suggested by the High Court.
The court will consider whether the person uses their own premises and equipment, whether they hire their own helpers, the degree of financial risk they take and the degree of responsibility they have for investment and management.
The court made it clear that the test is not to be regarded as conclusive and that there is no definitive test, because what is important in one case may not be in another.
Was the tort committed in the course of employment?
The Salmond test
Devised by Sir John Salmond
Used when determining if the employee was acting in the course of employment
Two elements of the test:
1.
a wrongful act authorised by the employer, or
2.
a wrongful and unauthorised mode of doing some act authorised by the employer.
A wrongful act authorised by the employer
An employer is clearly liable when they instruct the employee to act wrongfully, they the can also be liable if they employee has implied authority to commit the tort.
Poland v Parr (1927)
If violence is inflicted as part of a private disagreemnt, it is not normally in the course of employment.
Warren v Henleys Ltd (1948)
A wrongful and unauthorised mode of ding some act authorised by the employer
This situation arises where the employee is doing their job but they:
Ignore an express instruction not to do something
Limpus v London General Omnibus Co. (1862)
Act carelessly (negligently)
Century Insurance Co. v Northern Ireland Road Transport Board (1942)
Use un authorised help (the cases here seem to be inconsistent, and decisions seem to be based on the question of whether the employer derives a benefit from the unauthorised help)
Rose v Plenty (1976)
Breach a statutory duty - this shows that the imposition of vicarious liability is not restricted to common law claims.
Majrowski v Guy's and St Thomas' NHS Trust (2006)
If them employee acts outside the course of employment, then the employer cannot be vicariously liable. An employee acts outside the course of employment:
Carrying out an act not within the scope of the employee's work; that is, the employee does something that is not connected with what they are employed to do.
Beard v London General Omnibus Co. (1900)
Giving unauthorised lifts - there are contrasting cases even though the facts are very similar.
Twine v Bean's Express Ltd (1946)
Young v Edward Box Co. Ltd (1951)
Acting in excess of the proper boundaries of the work.
Makanjuola v Commissioners of Police for the Metropolis (1990)
Travelling to or from work - unless employee is travelling specifically on the employer's business.
Smith v Stages (1989)
Reasons for imposing vicarious liability
It provides a way to deal with situations in which an individual has not truly acted of their own violation, but instead been simply following orders.