VICARIOUS LIABILITY - created from Mind Map

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WHAT IS VL

JUSTIFICATION

LIABILITY IN RESPECT OF AGENTS

LIABILITY IN RESPECT OF INDEPENDENT CONTRACTOR (ic)

ELEMENTS OF VL

A situation where A is liable towards C for damage/injury suffered by C due to negligence/tortious act comitted by B

Usually happened in an employment relationship. Eg: Master & Servant, Principal & Agent

The master is liable as: 1) employing negligent worker 2) failure to control employee 3) any tortious/wrongful conduct of employee while perform his work since the master is in better financial position to compensate the injured party

GR: An employer will be liable for the act of his agents who are also his employees, but not for the acts of independent contractors

Yeo Tin Sang v Lim Choo Kee

Held, Principal is liable jointly and severally with the agent when injury/loss caused by 3rd person through wrongful act of an agent who is acting within the scope of his authority.

A person, who is although working for the employer, he is not controlled by the employer in the method//conduct relating to the performance of that work

An employer may be liable for tort committed by IC if the employer is deemed to have committed the tort himself

That arise in such 4 situations:

1. Employer authorizing the commission of tort

2. Tort which do not require intentional/negligent conduct by tortfeasor

3. Negligence of the employer

4. Non-delegable duties

1. Wrongful / Tortious Act

2. Special Relationship

3. Tort must occur within the cause of employment

Court will decide whether the tort has been committed or not

All elements of particular tort must be satisfied

Once tort is established, the nature of relationship between defendant and tortfeasor will be looked upon

a. Determining the existence of contract of service and employer-employee relationship

b. Grey Areas

i. Control Test

ii. Organisation Test

iii. Multiple Test

People who have "contract of service" (employment of contract) are employees, but people who have a "contract for service" (service contract) are independent contractors

Short v J & W Henderson Ltd

Collins v Hertfordshire County Council

4 factors to considered in determining the existence of contract of service:

1. The power of selection by employer

3. Power of employer to control the method in which the work was done

4. Power of employer to terminate employee's service

2. Power in determining salary/other remunation

Held, Contract of service existed if the employer had power to instruct employee and to control the method how the work need to be done. Control over hiring and dismissal of worker is the evidence of employer-employee relationship

Stevenson Jordan and Harrison Ltd v MacDonald and Evans

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

Held, 3 factors need to be fulfilled before contract of service is established:

1. Employee/servant agrees that he will use his own expertise and employer pays him in either monetary or remuneration

2. Employee/servant agrees (expressly/impliedly) that he will be bound by the employer's instructions

3. All other conditions in the agreement consistent with the nature of job

a. Hospital Staff

b. Lending a worker

Hospital's liability for the torts committed by its employees rests not on the principle of VL, but the breach of its primary duty to the patients

Tan Eng Siew v Dr Jarjit Singh

Fact - Plaintiff a 65 years old woman was dissatisfied with the post-surgery care she received from the consultant who had conducted her 2 hip operations.

Held - A private consultant who has clients of his own and pays the hospital for using hospital's facilities is not an employee but an IC. Hospital cannot be vicariously liable for any negligent conduct on part of consultant. The hospital only provided premises and operating facilities.

If B, the employee of A is lent to C and B commits a tort, A will be vicariously liable for tort committed by B unless A has divested himself of all possession of control

Mersey Docks and Harbor Board v Coggins and Griffiths (Liverpool) Ltd

Fact - B worked as a crane driver for A, who hired out the crane together with B, to C. Agreement between A and C stipulated that B would be working for C but A was to continue paying B's wages as well as retaining the power to terminate B's employment. B was negligent in the course of employment and injured X. At that time C had no control over the method how B handle the crane

Held - A was his permanent employer and therefore vicariously liable to X

If only: i) It is either expressly/impliedly allowed by employer. ii) When employee does something that is authorized in unauthorized manner. iii) Employee does something that is closed connected to what he is employed to do, in the course of doing the job.

4. Worker delegating his work

1. Carelessness of worker in the performance of his job

3. Tort committed in protection of employer's property

2. Unauthorized mode of going something authorized

5. Worker acting on his own benefit

6. Acting against employer express prohibition

11. Vicarious liability for breach of statutory duty

8. Fraud of the worker

9. Commission of thef by employee

12. Time and its relevance in determining COE

10. Sexual abuse by employee

13. Location / premises which injury occur

7. Employee acting on a frolic of his own