Vicarious Liability

• What is vicarious liability?

  It allows courts to hold one party liable for the torts of another
• What type of relationship does vicarious liability often arise?

  Employment relationship
• What type of liability is vicarious liability?

  Strict liability
• How does Lord Millet describe vicarious liability and strict liability? (Name of the case)

  Lister v Hesley Hall [2001] - Vicarious liability is a species of strict liability
• What questions does William Binchy raise in Tort Law in Ireland around vicarious liability?


  How is it fair to impose liability on a party guilty of no personal wrongdoing?

  Why should the defaults of one person generate liability in another person
• What are the four justifications for vicarious liability?

  1. Control
  2. Risk Creation & Enterprise Liability
  3. Deterrence
  4. Compensation & Loss Distribution
• What does the control rationale mean in justifying vicarious liability?


  The employee is under the control of the employer and should be held vicariously liable for employee's actions
• What does risk creation & enterprise liability mean in justifying vicarious liability?

  The employer created the risk and benefited from the risk, it is fair for the employer to be held liable
• What does McLachlin CJ state about risk creation?

  John Doe v Bennet [2004] - Vicarious liability is based on the rationale that the person that puts the risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury...
• What is the deep pocket theory?

  The employer is better placed to compensate the victim than a 'man of straw'
• What does Lord Phillips state about compensation and loss distribution and in what case?


  Various Claimants v Catholic Child Welfare Society [2012] - liability for tortious wrong is borne by a D with the means to compensate the victim
• Name of the case in which Hardiman J critiques the compensation and loss distribution?


  O'Keefe v Hickey [2008]
• What is Hardiman J's criticism of the deep pocket theory in O'Keefe v Hickey [2012]?


  even if the pocket is genuinely deep, that fact cannot in ordinary justice support the imposition of liability on such a person
• What does deterrence mean in justifying vicarious liability?

  It incentivises the employer to maintain the highest standard in its operation
• Name of the case where McLachlin CJ speak of the importance of deterrence?

  John Doe v Bennet [2004]
• What does McLachlin J state about deterrence in John Doe v Bennet [2004]?


  the hope is holding the employer or principle liable will encourage such persons to take steps to reduce the risk of harm in the future
• What are the 3 requirements of vicarious liability?

  1. A tort must have been committed by the WD
  2. The WD is in an employment relationship with the D
  3. The WD committed the tort while acting within the scope or course of their employment
• What types of Tort does Healy state can be committed by the WD?


  A common law tort (negligence) or a statutory tort (harassment in the UK)
• What does a contract of service mean?

  An employment relationship
• What does a contract for services mean?

  Independent contractors
• What are the 3 tests for distinguishing a contract of service from contract for services?

  1. Control test
  2. Integration test
  3. Economic Reality test
• What does the control test mean in distinguishing a contract of service from contract for services?

  It views the employment relationship in terms of a master-servant relationship
• Name of the UK case regarding the control test?

  Yewens v Noakes [1880]
• What did Bramwell LJ state about the control test in Yewens v Noakes [1880]?


  A servant is a person subject to the command of his master as to the manner in which he shall do his work
• Name of the Irish SC case regarding the control test?

  Roche v Kelly [1969]
• What did Walsh J rule in Roche v Kelly [1969]?


  The D never told P how to do the job or did not supervise his working methods and therefore the P was an independent contractor
• What does Otto Khan state about the limitations of the control test?


  It is unrealistic and almost grotesque to say employer controls a pilot, ship captain or train driver
• When was the integration test first proposed and by whom?

  Lord Denning in Stevenson Jordan v MacDonald [1952]
• What does the integration test mean in distinguishing a contract of service from contract for services?

  It means that the person must be part and parcel of the organisation to be an employee, not just an accessory to it like an independent contractor
• When was the economic reality test first proposed and by whom?

  Cooke J in Market Investigations Ltd v Minister of Social Security
• What does the economic reality or entrepreneur test mean in distinguishing a contract of service from contract for services?

  It asks if the person is working for another person or is running his own little business
• What are 3 steps by Cooke J in Market Investigations that he proposed to determine if a person is working for himself or another?


  1. Provides his own equipment
  2. Has his own helpers
  3. Has invested his own capital
• In what Irish SC case did Keane J adopt the economic reality test?

  Henry Denny v Minister for Social Welfare [1998]
• Despite the newer test of integration and economic reality, which test still applies and why?


  The control test still applies as control remains a significant factor in determining employment relationship in the context of vicarious liability
• Name of the Irish SC case involving the sexual assault of P by her music teacher who then tried to argue the State was vicariously liable?

  O'Keefe v Hickey [2008]
• What did Hardiman J state in O'Keefe v Hickey [2008]?

  The perpetrator was not the Minister's employee
• Name of the cervical smears test Irish SC case?


  Morrissey v HSE [2020]
• Why was the decision in Morrissey v HSE [2020] overturned on appeal to the SC?

  Clarke J stated that the relationship between the parties was clearly that of independent contractors and that the level of control exercised by the HSE cannot give rise to vicarious liability
• Name of the Irish SC case where an independent contractor was found liable (employer) (Coilte)?

  Phelan v Coilte [1993]
• What was the decision in Phelan v Coilte [1993]?


  The independent contractor was an employee because the D exercised a large degree of control over his work activities (employed full time, paid hourly rate)