Vicarious Liability

• Barclays Bank v Various Claimants :

  1. Is there a relationship of employment or akin to employment between the defendant and the tortfeasor.
  2. The tort must have occurred within the course of employment or for criminal international torts they it must be closely connected to the employment.
• The defendant is - the employer of the person who committed the tort.
• The claimant is - the person who as been injured by the actions of the employee.
• The tortfeasor is - the employee, the person who caused the damage to the claimant.
• A Traditional Relationship of Employment :

  • The Control Test - does the defendant have the right to control what the employee does and the way they do it.
  • The Economic Test - the courts will consider a number of economic factors, such as a loan of equipment, payment, working hours, payment of national insurance and taxes.
• Relationship 'Akin' to Employment :

  Christian Brothers Case -

  1. Is the defendant in a BETTER POSITION TO PAY damages than the tortfeasor.
  2. Tort was committed when the tortfeasor was ACTING ON BEHALF of the defendant.
  3. Tortfeasors activity is PART OF the defendants BUSINESS.
  4. By employing the tortfeasor it will have CREATED A RISK that a tort might be committed.
  5. The tortfeasor is UNDER THE CONTROL of the D.
• Cox v MOJ :

  When applying the Christian brothers test, parts 2,3 and 4 are the most relevant.
• An employer cannot be liable for the actions of an independent contractor.
• Course of Employment or Close Connection - Morrisons :

  Vicarious liability can only be claimed if the wrongful conduct of the employee is so closely connected to the acts that the employee was authorised to do, it can therefore be considered that they were acting in the course of employment.
• The Salmond Test -

  Will find the employer to be vicariously liable if the tortfeasor was acting in the course if employment when the tort occurred.
• Acts that are in the course of employment :

  1. Actions that the tortfeasor was authorised to do
  2. Unauthorised actions whilst carrying out the job - Limpus : the employer will be liable when the tortfeasor was doing what he was employed to do but acting against an order.
  3. Doing an authorised act in a careless or negligent way - an employer will be liable if the employee is doing their job in a negligent manner.
• Acts that are not in the course of employment :

  1. Employees acting on their own frolic - Hilton v Thomas Burton : the employer will not be liable if the employee is acting on their own frolic.
  2. Acting out of personal vendetta - if the acts of the tortfeasor are designed to cause harm to the employer, then they will not be considered closely connected to or in the course of employment.
• Defences -

  • Contributory Negligence
  • Volenti
• Remedies =

  Compensatory damages