Vicarious Liability

Vicarious Liability is when an employeer is responsible for the tort actions committed by their employee. In order for Vicarious Liability to apply the court must ask two questions: 1. Was the person who committed the tort employed by the defendant? and 2. Was the tort committed in the course of that employment?

Firstly we must establish was the person who committed the tort employed by the defendant? Employers are liable for torts committed by their employers but not for those committed by an independant contractor. Therefore it is essential to establish exactly who is classed as an 'employee.' The courts have established several tests to determine the status of a person's employment.

The first test to apply is the control test. This is where the employer sets out work for the employee and how it is to be done and when by.  If the person carrying out the work decides to how and when it is to be done by. This was set out in Yewers v Noakes, however this test is now outdated. 

The second test to apply is the intergration test. This establishes whether the person is an integral part of the business. This was set out in Steveson, Jordan and Harrison Ltd v Macdonald & Evans. 

The final test to apply is the economic reality test. The courts may also look at any contract between two parties. In Ready Mixed concrete v  Minister of Pensions & National Insurance. Mackenna J stated that: 'A contract of service exists if these three conditions are fulfilled': 1. The employee agrees to provide a service or skill in return for a wage. 2. The employee expressley or impliedly agrees that the work he provids will be subject to the employer's control. 3. The other provisions of the contract are consistent with it being a contract of services rather than any other relationship.

Sometimes, an employee may be 'on loan' to another…