Vicarious liability

• Establishing whether someone is an employee

  1. Control test

  2. Organisation test

  3. Economic reality test
• Before an employer can be sued it must be established that the person who committed the negligence was their employee
• Vicarious liability

  The liability of one person for the torts committed by another
• Vicarious liability

  • Mostly arises in employment when an employee might be liable for the torts of his employee
• Control test

  • It is an old test
  • It uses the concept of master and servant relationship
  • Considers whether the employer has the power to control the nature of work done and how it is done
• Organisation test


  
  

  Established in Stevenson V MacDonald. This test relies on a distinction between a contract of service (work for the company) and a contract for service (sub contractor).
• Economic reality test

  
  

  Established in ready mixed concrete and stated things that help determine whether a person is on a contract of services or a contract for services.

  These include methods of payment, responsibility for deducting the tax and national insurance, working hours, level of independence and relatively responsible for providing equipment.
• Authorised act done in an unauthorised manner

  The general rule is that an employer is vicariously liable for an authorised act done in an unauthorised manner. However, the employer is not responsible if the employee is acting beyond the scope of their employment
• Authorised act done in an unauthorised manner case

  
  

  Century Insurance - which involved the defendant's employee filling up a lorry with petrol which was a part of his job. The employee was also smoking which caused an explosion due to him flicking the cigarette in the petrol pump. The employer was held responsible as although the employee was smoking ,which was an unauthorised act, he did so whilst carrying the authorised act of his job. 
• Unauthorised act done in an unauthorised manner

  
  

  An employer isnt liable if the employee is acting beyond the scope of their employment. This is known as an unauthorised act in an unauthorised manner
• Unauthorised act in an unauthorised manner case

  
  

  Iqbal where the defendant's employee was a bus conductor and was told never to drive the bus. He proceeded to drive the bus anyway and caused an accident. The defendant was not liable as the employee was doing an unauthorised act in an unauthorised

  manner. 
• Frolic of his own

  
  

  An employer is not liable for the torts committed by an employee who is a frolic of his own. This means that if an employee does something not related to his work and is undertaken on his own count, then the employer will not be liable for a tort committed during the ‘frolic’.
• Frolic of his own case

  
  

   Storey v Ashton where the defendant sent two employees to deliver wine. The employees went on a diversion to do their own business and they ran over the claimant. The defendant was held not liable for the negligence of the employees as they were on a frolic of his own. 
• Closeness of connection

  
  

  An employer will only be held to be vicariously liable for the unlawful acts of their employee if there is a closeness of connection between the employment and the unlawful act.
• Closeness of connection case

  
  

  Gravil v Carol - where the employer (defendant) was found liable. This was because the employee ,who was a rugby player, hit the claimant during a match. As the unlawful act occurred during the match, the rugby club was liable.