Vicarious Liability Notes

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Tortfeasor: The person who has committed the tort (employee).

CONTROL TEST:

1) Did the employer have the right to select the employee?

2) Did the employer have the right to control the method of working?

3) Did the employer have the right to suspend and dismiss?

4) Did the employer have the right to control the payment of wages?

INTEGRATION TEST:

1) The tortfeasor will be an employee if their work is integrated into the business.

ECONOMIC REALITY OR MULTIPLE TEST:

1) Considers a number of economic factors.

2) Method of payment.

3) Does the tortfeasor pay tax and national insurance?

4) Fixed working hours indicate employment.

5) Can they take other work freely?

6) Use of tools and equipment that belong to the employer indicate employment.

MODERN TEST:

1) Relationship between the employer and the tortfeasor is akin to a relationship of employment is suffice.

MULTIPLE EMPLOYERS:

1) When considering work that has been subcontracted to other parties, the courts have now stated that all employers can be considered vicariously liable.

LIABILITY FOR INDEPENDENT CONTRACTORS:

1) If the tortfeasor is not an employee but is considered to be an independent contractor, the employer is not vicariously liable for their actions.

LIABILITY WHEN ACTING IN THE COURSE OF EMPLOYMENT:

1) Employer liable in two instances.

2) For the wrongful act that has been authorised by the employer.

3) For an act, while authorised, was carried out in an unauthorised way.

4) An employer can be liable if the employee is doing their job in a negligent manner and this causes injury to another.

AN EMPLOYEE ACTING ON A FROLIC OF THEIR OWN:

1) If the employee causes an injury or damage to another whilst they are doing something that is outside the area of work or time of their work, then the employer can not be liable.

REMEDIES:

1) If found liable, e employer will be instructed to pay compensation to the damaged person.

2) Civil Liability Act 1978: The employer can recover any of the compensation paid out from the employee, for example, it can be deducted from their wages.