VICARIOUS LIABILITY

Nota:

• Liability of one person for torts committed by another person.  General rule: a person who commits a tort will be personally liable: the claimant brings an action against the person who has caused harm/ damage or otherwise fulfilled the requirements of one of the torts that are actionable per se.  arises most commonly in relation to employer-employee relationships.  Advantageous for a claimant to bring an action against an employer via vicarious liability because there is more likelihood the employer will be able to pay the damages. Vicarious liabilty can impose secondary liabilty, can combine with any other tort. 
• Other relationships: -Principle and agent - Business partners -Vehicle owners and delegated drivers. 

1. Who is an Employee

   Nota:

   • No single test is accepted as authoratative by courts, although it is the economic reality/Pragmatic test that has the most use 
   1. Control test

      Nota:

      • Oldest test. Unrealistic to use it in modern employment situations. 
      1. Distinguishes between an employee and independent contractor on the basis of whether the employer had the right to control the work done and HOW it was done. - Yewen v Noakes
   2. Organisation or Integration Test
      1. Makes a distinction between a contract of service, whereby 'a man is employed as part of the business and his work is done as an integral part of he business and a contract for services, whereby 'work although done for the business is not integrated into it but is only accessory to it- Stevenson, Jordan and Harrison v McDonnel and Evans.
         1. Distinction between contract OF SERVICE and contract FOR SERVICES is difficult

            Nota:

            • Contract of Service An organisation engages a person to carry out various tasks within the organisation that are integral to its core purpose 
            • Contract FOR services An organisation requires a particular service to be supplied and seeks out a person who can provide that service, which is supplementary to the core purpose of the organisation. 
   3. Economic reality test
      1. Recognition that control and organisation tests do not cover all situations/ Economic reality (Pragmatic test) Developed. - Ready Mixed Concrete Ltd v Minister of Pensions Three conditions
         1. Employee must provide work or skill for employer in return for payment of a wage/renumeration.
            1. The employee agrees expressly or impliedly that they will work under control of employer
               1. All other circumstances are consistent with the situation being characterised as a contract of employment

                  Nota:

                  • Viasystems v Thermal Transfer  - CA held that in cases where employees are borrowed, then in principle there is nor eason why both employers should not be vicariously liable.
                  1. Considerations to take into account

                     Nota:

                     • -Method of payment (Regular etc) - Tax and National Insurance  -Working hours (fixed/regulated?) -Provision of Equipment ( employee expects employer to provide, whereas independent contractor generally has their own tools).  - Level of independence (Contractors usually quite independent). 
2. Has a tort been committed

   Nota:

   • There can be no secondary liability if there is no primary liabilty (IE THERE HAS BEEN NO TORT COMMITTED). 
3. The course of Employment

   Nota:

   • Tort must be committed during his work doing an act related to his work - Storey v Ashton.
   1. Authorised Acts
   2. Authorised acts in an unauthorised manner

      Nota:

      • Century Insurance v NI Road Transport Board 
   3. Express prohibitions , Distinctions between manner and scope of employment.

      Adjunto:

      • Employers express prohibition
   4. Unlawful Acts
   5. Closeness of Connection test

      Nota:

      • Requires an assessment of the link between the employee's wrongful act and the tasks he was supposed to be carrying out. 
      • Close connection: an employee responsible for conveyancing in a firm of si
4. Employer's Indemnity

   Nota:

   • Employer + employee joint tortfeasors,  Employer may be able to recover some of the damages from the employee. 
   • Jiont liability arises if two or more people cause harm/damage to the same claimant when they are 1) engaged in a joint enterprise 2) One party authorises the tort of another 3) One party is vicariously liable for the torts of the other. 
   1. CLA 1978
      1. S1 - Allows D who paid damages to a claimant to recover a contribution from any other defendant who is responsible. Quantification of the amount, is based on what is just and equitable in the circumstances.
         1. S 2 (1) - May be liable for all the damages.
   2. Common law indemnity
      1. Can recover full damages if the tort was caused by the employee's breach of contract (reasonable care + skill) Lister v Romford Ice
      2. Cannot claim an indemnity at common law unless completely not to blame for damages. - Jones v Manchester Corp
5. General Requirements
   1. A relationshp that is recognised as giving rise to vicarious liability must exist
      1. A tort must have been committed by the relevant party to that relationship
         1. A tort must have been committed as part of the dealings of that relationship
6. Employer/Employee Requirements
   1. Person who commits tort must be an employee as opposed to an independent contractor
      1. Employee must have committed a tort
         1. Tort must have been committed in the course of employment.