VICARIOUS LIABILITY

Overview of the topic

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INTRO

It imposes liability on an employer for the negligent acts of their employees.
You must be an employee and acting in the course of their employment

May be seen as unfair to the employer because they are responsible for peoples actions.

Have to satisfy 3 basic tests for liability to be imposed, the first one is:
Are they an employee?
The courts have developed tests over the years in order to determine whether someone is an employee or not

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CONTROL TEST

It was based on master servant laws, the master has control over everything

MERSEY DOCKS &HARBOUR BOARD V COGGINS & GRIFFITHS
A crane driver negligently damage good in the course of his work. Harbour board hired him out to act as servant and were still liable for his negligence

AO2
The test is now old fashioned and has a narrow focus because it only takes into account one factor which is the control

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INTEGRATION TEST

Lord Denning established this test and it is based on how integrated a persons work is to be the business. If they are fully integrated then they are an employee. If they are merely an accessory to the business then they will not be

AO2
This test can work quite well but there can be problems, for instance a part time examiner may be classed as employed for the purposes of tax, but it is unlikely the exam board will pay redundancy when they are no longer needed.
The focus of the test is again narrow because it only concentrates on one factor, integration. However it is an improvement from the control test because it is more applicable to modern situations

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MULTIPLE TEST

More modern test and it considers whatever factors may be indicative of employment or self employment. 3 conditions have to be met:

  • Employee agrees to work in return for a wage
  • The employee accepts that work will be subject to the control of the employer
  • All other considerations in the contract are consistent with there being a contract of employment

AO2 it is difficult for the courts on how to weigh up each factor which might lead to confusing results because they may have different opinions about the differ factors

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READY MIXED CONCRETE V MINISTER OF PENSIONS

Question was who was liable for NI contributions, the company or the driver himself.
The drivers drove vehicles in company colours and logos, which they bought on hire. They were obliged mot maintain the vehicles according to set standards.
Only allowed to use the vans for company business.
Hours were flexible and pay subject to an annual minimum rate.
Could also hire drivers in their place.
Therefore the last point swayed to the courts to decide they were not employees

Other factors which will help determine of employee or not:
Ownership of tools
Method of payment
Tax and NI contributors

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IN THE COURSE OF EMPLOYMENT

Generally an employer will be liable in two instances:

  • A wrongful act that has been authorised by the employer
    POLAND V PAR
    employee assaulted a boy who was trying to steal lorry, the employer was held to be vicariously liable since the employee was protecting their employers property
  • An act which was authorised but. Arrived out in an unauthorised manner
    LIMPUS V LONDON
    General omnibus companies told their drivers they could not race, when they did and injured the C the employer was liable because they were authorised to drive but not in the manner they did
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NEGLIGENT MANNER

CENTURY INSURANCE V NI TRANSPORT BOARD
Driver of a petrol tanker while delivering petrol threw down a lighted match causing an explosion, the employer was found liable

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EMPLOYER BENEFITS FROM THE TORT

ROSE V PLENTY
Milkman used a child helper despite being told not to. The boy was then injured and the employer was found liable.
This part of the law protects children

TWINE V BEANS EXPRESS
Employee gave a hitchhiker a ride who became injured, however the employer was not liable because they were not benefitting from the tort. Tis case contrasts ROSE V PLENTY

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FROLIC OF HIS OWN

HILTON V THOMAS BURTON
Workmen took an unauthorised break and killed someone by running them over, the employer was not liable because the workmen were on a frolic

Tis part of the law benefits the employer and protects them if the employees are doing something they shouldn't

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EXCEEDING BOUNDARIES OF WORK

MAKANJULA
A police officer had sex with an immigrant because he told her if she did he would not report her, employers were not liable as he had exceeded his boundaries of work

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LIABILITY OF PUBLIC BODIES

TROTMAN
A teacher sexually abused a boy however there was no liability on employer. This case later became bad law. The feeling of the court was the more extreme the act of the employee the less likely he employer will be vicariously liable

LISTER
The HOL rejected the case of TROTMAN as a precedent and held sufficient connection to be liable despite the floodgates argument

MATTIS V POLLOCK
A bouncer was hired in a nightclub to intentionally intimidate and manhandle customers, when the bouncer injured the C the employers were found liable because they hired him for those purposes

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