Vicarious Liability (Unit 2 Tort)

• Vicarious Liability = Identifies who to sue/who is to blame.

  Not a tort upon which a claim can be made. Method of imposing liability. No direct fault on part of employee. Form of strict liability is imposed.
• Three elements of vicarious liability

  • The Tortfeasor commits an unintentional tort
  • Person alleged to have committed the tort is, in fact an employee
  • The employee committed the alleged tort 'during the course of his employment'
• Is the person an employee

  Common law tests = Control, integration and economic reality test
• Is the person an employee (Control test)

  How much control boss/manager has over its employee. (Hawley v Luminar Leisure)
• Is the person an employee (Integration test)

  Lord Denning says that a worker will be an employee if his work is fully integrated into the business rather than being an accessory to it

  (Sevenson Jordan)
• Economic reality test: (Cox v Ministry of Justice)

  1. Is the employee doing something in work in return for a wage
  2. Employee accepts that the work will be the subject to the control of the employer
  3. All other considerations in the contract are consistent with one of the employment

  (Minister of pensions and national insurance) - Self employed

  (Uber) - Change in the law to employee
• Can more than one person be vicariously liable

  (Viasystems)

  Who was entitled and obligated to control the tortfeasor's acts. May lead to two employers.
• Employer committing - Negligent acts (century insurance)

  The employer is liable for the negligence of employees. Justify the proof of vicarious liability for evaluation point
• Acting against orders (Rose v Plenty)

  • The employer may still be liable
  • So long as the tortfeasor is undertaking his course of employment
• Acting outside the terms of employment (Beard)

  No, the employee will be liable.

  Doing something badly vs doing something you are not employed to do
• Employee committing act (Lister)

  • Criminal acts of an employee may still render the employer liable
  • Same thing in (Mohandas v Morrisons)
• Inextricably link between the acts of abuse and the employment. The link must be inextricably close (N v Chief constable). Also in the course of your employment
• Bringing everything together (Barclays bank)

  1. Relevant to one of the employees
  2. During the course of employment

  Quoting at the end of criminal law. Summarise/consolidate.
• Employers acting on a 'frolic' (adventure) on their own

  • Where an employee commits an act of a time or place not connected with his employment
  • (Holton v Thomas Burton)
• Understand liability for independent contractors

  • Those that are self employed have no employer
  • Vicarious liability does not apply
  • Self employed workers should have public liability insurance
• Evaluation points:

  • Damages distribution
  • Test on establishing employment status
  • Liability for criminal acts
  • Tort basic fault principle
• Damages distribution

  Employer's financial capability = Ensures victims receive necessary compensation. 'those who can pay, should pay'.

  Victim compensation access = Gurantees victims are not left without redress. Addresses the potential financial limitations of individual employees
• Damages distribution

  Mandatory Liability insurance = Demonstrates societal endorsement of employer responsibility. Facilitates a structured and predictable system of compensation.

  Civil Liability Act recourse = Encourages responsible employee behaviour, knowing employers can seek contribution. Balances the interests by not solely burdening employers.
• Test on establishing employment status

  Changing employment landscape = Traditional legal tests for employment are outdated due to modern work practices. Examples include flexible hours, zero - hour contracts and remote working

  Challenges with flexible tests = Never, more flexible legal tests (like in JGE v Portsmouth RCDT) might be seen as unfair to employers. These tests could hold employers liable even when they're not in direct control
• Test on establishing employment status

  Balancing responsibility = A debate whether employers would share responsibility if they benefit from the work. This raises questions about fairness in allocating liability.

  The evaluation highlights the tension between traditional legal frameworks and modern employment practices.
• Course of employment test and liability for criminal acts

  Employer liability in criminal acts = These cases establish a precedent where employers can be held liable for criminal acts committed by their employees.

  This raises a critical question. Is it just to hold employers accountable for actions they did not encourage or forsee.
• Course of employment test and liability for criminal acts

  Balancing fairness = On one hand, employers typically do not endorse criminal acts. The other hand, there's a societal expectation to protect and provide justice for vulnerable victims of such crime

  Complex interplay between legal responsibility and moral fairness in the context of employer liability for employee criminal acts. Highlighting the need to balance employer non - complicity with victim protection
• Tort and basic fault principle

  Fault principle in tort law = Foundational principle is that liability should only apply to those who are at fault or blameworthy.

  Vicarious liability challenge = This often holds employers responsible even when they have taken all reasonable steps to prevent harm, which seems at odds with the fault principle
• Tort and basic fault principle

  Practical dilemma = For instance, in the Mohamud case, it raises the question: How could employers realistically prevent an employee from committing an unexpected act like assault?

  Strict liability and social benefit = Strict liability aspect of vicarious liability promotes safer working environments, offering a broader social benefit