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Chapter 5 : Vicarious Liability

Emily Greig Law of Tort Level 3 Inglés 41 fichas

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  1. 1What is vicarious liability?Vicarious liability is the liability of one person for torts committed by someone else. This principle is usually applied to the liability of an employer for the torts of his employee.
  2. 2Why is vicarious liability imposed?One reason for this is that the employer is likely to have more funds than the employee (and is likely to be insured). The claimant is therefore more likely to receive the compensation due.
  3. 3What are the three requirements for the existence of vicarious liability?1. A tort has been committed;
    2. by an employee (so there must be an employer-employee relationship or, in some cases, a relationship "akin to employment"); and
    3. the person who committed the tort was acting in the course of employment or was involved in an activity closely connected with this role in the organisation.
  4. 4Will there be two or one potential defendant?Two - The employee (who has primary liability) and his employer (who has vicarious liability).
  5. 5Why is important to distinguish between an employee and a self-employer contractor?This distinction has great practical importance because an employer is vicariously liable for the actions of his employee but not for the actions of a independent contractor who is doing a job for them.
  6. 6"An employee works under a.........., while an independent contractor works under a................". Complete the statement.An employee works under a contract of service, while an independent contractor works under a contract for services.
  7. 7The nature of the relationship between the worker and the person who pay for the work to be done is a question of law. Over the years, the courts have developed a number of tests to help them make the distinction about whether a person is an employee or a self-employed contractor. What three tests did they develop?1. The control test;
    2. The organisation test; and
    3. The multiple test.
  8. 8What is the control test and in which case was this established?This is the traditional test. Originally, the courts looked at the degree of control the employer exercised over a worker. If the employer could tell the worker what to do, and how, when and where to do it, he was classed an employee. If he could not, he was not. The leading case on the control test is Yewens v Noakes [1880].
  9. 9Is the control test still used?No. Although the degree or control exercised by an employer may still be relevant today, it is not longer appropriate to use this as the sole test. Since most jobs involve skill and technical expertise, an employer is often not in a position to "control" the employee in the sense of telling him what to do and how to do it.
  10. 10What is the organisation test?This test was developed because the control test was inappropriate in cases where the employee was a skilled professional (such as a doctor in a hospital). It considers a person to be employee if he is "part of the organisation".
  11. 11What three cases used the organisation test?Cassidy v Minister of Health [1951], Stevenson, Jordan & Harrison Ltd v MacDonald and Evans [1952] and Whittaker v Minister of Pensions [1967].
  12. 12What is the multiple test?This test (which is the one usually used today) is based on the "economic reality" of the situation. This means the court looks at all the circumstances in which the person works. No factor in itself will be decisive. The multiple test originated in Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968].
  13. 13Which factors suggest a contract for services?1. His contract said he was self-employed.
    2. He had to buy his lorry from the company and maintain it himself.
    3. He was free to choose his hours of work and holidays and had to delegate his work to someone else.
    4. He was paid on the basis of what he actually did.
  14. 14Which factors suggest a contract of service?1. He had to paint the lorry in company colours.
    2. He could use the lorry only on company business.
    3. He had to obey reasonable orders.
  15. 15What was stated in Hall (Inspector of Taxes) v Lorimer [1992]?"There is no single satisfactory test governing the question whether a person is an employee or is self-employed".
  16. 16What was the result of Carmichael v National Power [1999]?This case established that an employer-employee relationship could exist only if there was "mutuality of obligation". This means the employer must be bound to offer, and the worker bound to accept, work.
  17. 17Which case held that an agency worker was an employee of the client who had control over his day-to-day work?Motorola Ltd v Davidson and Another [2001].
  18. 18What did MacFarlane and Another v Glasgow City Council [2001] establish?It was held that the degree of delegation of work permitted by the contract could be an important factor in classifying the relationship. Therefore, nowadays, tribunals will be less inclined to find that an agency worker has an employer.
  19. 19Which case established that an Employment Tribunal should imply a contract of employment in such cases only where it is necessary to do so.James v London Borough of Greenwich [2008].
  20. 20Traditionally, were priests / monks / nuns held to employees?No, they are not automatically held to be employees as they are regarded as having been called by God to their roles or because they are not paid to follow their vocations.
  21. 21What did JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] hold?This case held that there are cases where the relationship between an organisation and an individual is "akin to employment" which means that it could be fair to find the organisation vicariously liable for the individual's wrongdoing.
  22. 22What was established in Catholic Child Welfare Society v Various Claimants (FC) [2012]?In this case, it was held that CCWS (the managers of the school where children were abused) AND the Institute of the Brothers of the Christian School (to whom the monks belonged) should be jointly vicariously liable for the abuse.
  23. 23What two reasons were given for the decision made in Catholic Child Welfare Society v Various Claimants (FC) [2012]?1. The relationship between the abusers and the Institute was "sufficiently akin to that of employer and employee" to be capable of giving rise to vicarious liability.
    2. The abuse had been very closely connected with the abusers' status as Brothers and the trust that had been placed in them.
  24. 24Is it possible for two organisations to be held jointly vicariously liable for the same act?In most cases, there will only be one organisation that could be held to be vicariously liable for an individual's actions. But, in some situations, there may be a genuine dispute over which of two organisations was responsible for the individual at the time of the tort. Since 2005, it has been possible for a court to hold two organisations jointly vicariously liable for the same act.
  25. 25If an employer lends one of his employees to someone else and the employee commits a tort while he is on loan, what is the general rule?The general rule is that the original employer will be presumed to be liable for the employee's torts UNLESS he can show that he passed control over to the second employer. This is easier to do if labour only has been lent. If both labour and equipment have been lent, it is more difficult to rebut the presumption that the first employer retains control over the employee's actions.
  26. 26What is the leading case involving a "lent" employee?Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1946]
  27. 27What case relates to a sub-contractor's liability?Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese GmbH and Others [2008]. In this case it was held that a main contractor was not liable for a fire negligently caused by a sub-contractor's employee. This was because the sub-contractors were skilled welders with their own foreman, and the main contractor had no control over the way in which the sub-contractors worked.
  28. 28Which case established that two organisations can be vicariously liable for the same action of a worker?Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and Others [2005]. This would occur if two different people, from two organisations, had control over that worker at the time of the negligent act.
  29. 29The employer is only responsible for those acts which the employee performs "in the course of employment". True or false?True. This is a question of fact.
  30. 30Generally, a tortious act is held to be in the course of employment if it is either: [List the three things]1. a wrongful act authorised by the employer;
    2. a lawful act authorised by the employer, but carried out in a wrongful and unauthorised way; or
    3. an act which is "closely connected" to the tortfeasor's role in the organisation.
  31. 31What does "in the course of employment" mean?An employee is "in the course of employment" when he is doing something authorised by his employer (i.e. when he is doing the job he is employed to do), If he is doing something outside his normal duties, the employer will not usually be liable.
  32. 32What is the phrase used to describe "acting outside the course of employment"?"A frolic of one's own".
  33. 33Which case illustrates "a frolic of one's own"?Hilton v Thomas Burton (Rhodes) Ltd [1961].
  34. 34Is an employee held to be "in the course of employment" when he is travelling to and from his place of work in the normal way?No.
  35. 35Will an employee be held to be acting in the course of employment if he is doing something wrong or forbidden, provided he is doing his job at the time?Yes.
  36. 36Which case demonstrates that the specific actions that caused the harm were forbidden by the employer, but the main "underlying" acts at the time were part of the person's employment, thus being a lawful act in a wrongful and unauthorised way, consequently making the employer liable?Kay v ITW Ltd [1967].
  37. 37Are there any circumstances where the courts regard it appropriate to hold an organisation vicariously liable for the conduct of a person, even when the wrongful act was not committed in the course of employment?Yes. This is when the act was "closely connected" with the tortfeasor's role. This was demonstrated in Gravil v Carroll and Another [2008].
  38. 38For intentional torts (i.e. battery or deceit) committed in the course of employment, an employer was generally not liable for such acts unless he had expressly told the employee to do them. True or false?True. However, in Lister v Hesley Hall [2001] it was held that the test should be whether the acts "were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable".
  39. 39Which case expanded the principle of liability established in Lister v Hesley Hall [2001]?Maga v Roman Catholic Archdiocese of Birmingham [2010]. In this case, it was held that a priest (who had a special role within the community) had a close connection with his employment, so it was therefore fair to hold the Roman Catholic Church vicariously liable for the priest's criminal acts.
  40. 40Does vicarious liability take liability away from the individual?No, it makes the organisation liable as well as the individual. Therefore the claimant can sue both the organisation and the individual. However, in practice, the organisation is usually sued as the chance of recovering damages is greater. The organisation can then seek to recover the damages back from the claimant.
  41. 41Many employers who are vicariously liable for the torts of their employees will also be primarily liable for what?Employers who are vicariously liable for the torts of the employees will also be primarily liable to the claimant in negligence, for failure to take care. This depends on the duty of care being found. This is most common when one employee has negligently harmed another. The employer will likely have breached its duty to provide competent workers. The employer will therefore be vicariously liable and primarily liable to the claimant.

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Level 3 Law of Tort Fichas sobre Chapter 5 : Vicarious Liability, creado por Emily Greig el 23/05/2018.
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