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Vicarious Liability - Tort - Coggle Diagram
Vicarious Liability - Tort
Vicarious Liability of employers
Was a Tort Committed
claimant wants to hold employer liable for harm caused by another - (harm in tort
need to follow
Duty
Breach
Causation
Any defence
By an employees
VL = if the employee
committed during a course of business
if emplyer disputes need to be determined
To determine someone is an employee rather tam independent contractor
Earlier approaches (earlier case law, courts looked) TEST
Control - did the emplyer have the right to control method of working
Based on integration
Still remain valid in MT
Modern approaches
looks at economic regality of relationship (to see if employee or indep
FACTORS TAKEN INTO ACCOUNT
Personal service
does employee agree in return of salary to carry out work personally :check:
control
does emplyer have the right to control how the work is done? :check:
ownership of tools
which party owns and provides work equipment? req to ware uniform :check:
chance of profit and risk
which party takes finical risk for work carried out :check:
contractual provisions
are other provisions :check: of contract consistent - rel being emplyer - employee
Labels in a contract not relevant - eg indep (courts don't care) :red_cross:
liability for an emplyer
key questions
was a tort commited?
by an employee?
in the court of employment?
applies
To a tort committed by employee against some person
A tort committed by an employee against a fellow employee
employees owes a duty of care to each other, breached causing damage could = emplyer being vicariously liable
In the course of employment?
Negligence of employee
remaining in emplyment
Criminal action of employees
Not a bar to VL even if action is criminal (depends on closeness and connection between wrongful act and task employed to do.
Disobedience to instructions
disobey instructions: depends on effect of propitiation(may limit scope or manner of emplyment) **
forbidden to do something - limits the scope of emplyment (outside scope of employment)
:red_cross:
forbidden for eg driving in speed) instructions only limit the manner in which employee should preform - in the scope of emplyment
:check:
Deviations from an authorized journey
depends if employee if still acting in the course of emplyment
depending on time or distance (if this was a separate independent journey for thier own purpose
Then no VL to the emplyer
if minor deviation - may not amount to a separate journey and still in the course of emplyment
employee tort must be committed during a court of emplyment
Courts - must be satisfied there was a close connection between tort and work Employee was employed to do
Was the tort so closely connect with the task with employee was employed to do that it would check: be fair and just to hold emplyer liable :check:
Question tests
:check:
was function or filed of actives have been entrusted by the emplyer to the employee
was there sufficient connection between the the position in which they were employed and thier wrongful conduct to make it right for the emplyer to be held VL?
Extension of vicarious liability to relationship Akin to employment 1st stage
employee under a contract of service = liable
2, independent contractor (under contract service) employers no liable to VL
3, not technically an employee but who relationship is akin to emplyment
tort as committed as a result of an activity under taken by the tortfeasor on behalf og the defendant
the T's actives is an integral part of the defendant business activates rather than T being own independent business
the defendant created the risk of the tort by assigning the activity to the tortfeasor
Question considered by the court where the defendant tis more likely to have means to comp the victim then the tortfeasor and degree of control over the T
:red_flag:
Connection also required 2nd stage
close connection between relationship and tort committed = test showing employee acted in the course of business :star:
Independent contractors
Breach of employer's own duty
hiring a indep may make you personally liable rather than VL
the emplyer is in breach of thier own non delegable duty of care
the emplyer is in breach of their own duty to take reasonable care in selecting a competent contractor
Non delegable duties of care
employers' duty to employees
duty to employees is a personal and non delegable , if getting an IP to carry out activities within the scope of emplyment ,
Breached if emplyer does not take reasonable care
Other non delegable duty situations
non delegable duty of care owned when indep contractors is engaged to carry out extrahazadouse activities (highway) or in schools to pupils
Duty to take reasonable care in selecting a competent contractor
may breach own duty to take reasonable care in selecting a competent contractor
eg not checking qualifications and suitability
you'd be liable for own breach of duty in falling to take reasonable care in selecting a competent contractor
Meaning - liability of one person for tort committed by another- liability without fault for the other :<3: