vicarious liability

• Test 1


  Is the tortfeasor and employee (traditional test) or in a position akin to an employee (non-traditional test)?
• Test 1: Traditional employment tests


  Is the tortfeasor an employee?

  
  

  - Control test

  - Integration test

  - Economic Reality test
• Yewens v Noakes (control test)


  An employee is a 'person who is subject to the command of his master as to the manner in which he shall do his work.
• Stevenson Jordan v Macdonald (integration test)


  A person is an employee if their work is an integral part of the business.
• Ready Mixed Concrete (economic reality test)

  1. Does the tortfeasor own any equipment?

  2. Does the tortfeasor recieve payment?

  3. Does the tortfeasor have tax, NI and pensions deducted from their wage?

  4. How does the tortfeasor describe themselves?

  5. Does the tortfeasor have any independence in their job?
• Test 1: Non-traditional employment tests

  Is the tortfeasor in a position akin to employment?

  
  

  It must be fair, just and reasonable to hold an employer vicariously liable.
• Catholic Child Welfare Society v Brothers of the Christian Schools


  1. D is more likely to have means of compensation

  2. Tort was committed because of activity being undertaken on behalf of D

  3. Tortfeasor's activity is likely to be part of D's business activity

  4. D has created the risk of the tort by employing the tortfeasor

  5. D maintains a degree of control over the tortfeasor
• Test 2


  Do the actions of the tortfeasor fall within the course of employment (non-intentional torts) or is there a sufficiently close connection between the employment and the tort (intentional torts)?
• Test 2: Non-intentional torts

  Do the actions of the tortfeasor fall under the course of employment?

  
  

  Acts committed inside the course of employment include:

  - Authorised acts

  - Authorised acts done in a negligent way
• Rose v Plenty


  If the employee is doing their job but acts against orders, the employer can be liable.
• Century Insurance


  If the employee has carried out work badly, the employer can be liable because they should make sure employees are suitably trained.
• Smith v Stages


  If the employee causes injury or damage to another whilst doing something outside the area or time of their work, then the employer will not be liable.
• Test 2: Intentional torts (crimes)

  Is there a sufficiently close connection between the employment and the tort?
• Lister v Hasley Hall


  The courts consider if there is a sufficiently close connection between the employers' field of activities and the tort.