Vicarious Liability Defnition A situ situat atio ion n wher where e an emplo employe yerr is respo espons nsibl ible e or or dama damage ges s caused by the torts o his employees to a third party while acting in their course o employment. Strict Liability
oint Liability
- An employer will be liable irrespective o ault. - Even Even i an an empl employ oyer er has has nothi nothing ng to do do with with the tortious act, he will be held liable. - !oth employer and employee can be held liable or the tortious act.
"hy is it imposed# $. %ontr %ontrol ol o employ employees ees - An employer is in control o the conduct o his employees. - &hus &hus,, an employ employer er should should be made made liable liable'r 'res espon ponsib sible le or his employees( acts. ). !eneft and burden burden principle principle - An employer benefts rom the wor* o his employees. - &her &here eor ore, e, an empl employ oyer er shoul should d also also be made made liabl liable e or or any any dama damage ge caus caused ed by the the empl employ oyee ees s in the the course o their employment. +. Deep-poc* Deep-poc*et et argument argument - An empl employ oyer er will will be in the best best fnan fnanci cial al posi positi tion on to meet eet a cla claim as an empl employ oyer er has the resou esourrces ces money. - An employ loyer is best able to absor sorb loss they are are oten insured. - &hus &hus,, thir third parti parties es shou should ld sue an empl employ oyer er and and not his wor*ers. /. 0ecruitm ecruitment ent - Any tortio tortious us act act commit committed ted by an empl employe oyee e indica indicates tes that hat the employer is negli eglige gen nt in sel selectin cting g hi his s employees. - &her &hereo eorre, an empl employ oyer er shoul should d be respo responsi nsible ble or or his employees( tortious act.
1. 2romotion o care - &o promote care and ethical wor* practice by employees so they do not easily 3turn a blind eye4. - Encourages higher standards o saety. Elements
1. The tortfeasor must be an employee of the master employer - Employer5 somebody who has the right to hire and re. - 6t must be determined that a person is an employee and not an independent contractor. - 37ull time4 indicates that a person is an employee. - &here are three employee is5
tests to help determine who an
i. %ontrol test - &he test was laid down in Short v J & W Henderson where Lord &han*erton listed the four factors to be considered: i 2ower o selection by the employer ii 2ower in determining salary or other remuneration iii 2ower o right o the employer to control the method in which the wor* was done iv 2ower and right o the employer to terminate the employee(s services - &he degree o control e8ercised over a person(s wor* by the employer is loo*ed into. - "here the employer had control over the wor* and was in such a position to determine how, what, and when tas*s should be done. - E.g: 9elpul in determining whether a actory wor*er is an employer. - 6 a person is engaged to do a particular wor*, but has discretionary power on how, what, and when a
tas* is to be done, such person is an independent contractor. - &hus, vicarious liability does not apply.
ii. !usiness integration or :rganisation test - &he test was established in Stevenson, Jordan & Harrison v MacDonald Evans where a distinction between a contract or service and contract o service was made. - A person in a contract o service5 employee - A person is employed as part o the business and his wor* orms an integral part o it. - A person in a contract or service5 independent contractor - Although wor* is done or the business, it is not integrated into it, but is only accessory to it. iii. ;ultiple test - &he test was established in Ready mixed Concrete Ltd v Minister of Pensions & ational !ns"rance where three factors need to be ulflled in order or there to be a contract o service5 i Employee or servant agrees that he will use his own e8pertise and the employer pays him in monetary orm or any other remuneration. ii Employee or servant agrees that he will be bound by the employer(s instructions. iii All other conditions in the agreement are consistent with the nature o the
- Special rules: i 9ealth authorities - =urses, radiographers, house-surgeons, and assistant medical o>cers are employees o the hospital or purposes o vicarious liability. ii !orrowed employees
- &he principle as laid down in Mersey Doc#s & Har$o"r %oard v Coins & 'riiths (Liver)ool* Ltd is5 - 6 %, an employee o +, is lent to C, and % subse?uently commits a tort, + will be vicariously liable or the tort committed, unless + has stripped himsel o all possession and control. 2. The employee must hae committed a tort. - 6n !m)erial Chemical !nd"stries v Shatell, it was established that or an employer to be vicariously liable, a tort must have been committed by the employee and all the elements o the particular tort must be satisfed. +. The tort must hae been committed in the course of employment - Acting in the course o employment5 i &he act is a wrongul act authori@ed by the employer ii 6t is an unauthori@ed manner o doing something which is authori@ed
!egligent and careless acts: &he employer will not be liable i the employee is careless in doing something that he is not employed to do. - Cent"ry !ns"rance Co Ltd v orthern !reland Road -rans)ort %oard &he court held the deendant employer vicariously liable or the act o his employee throwing a burning match onto the ground and causing the plainti(s property to be destroyed in the course o his employment as it was an unauthori@ed manner o perorming his tas* o delivering petrol. - !l#i v Sam"els
&he court held the deendant vicariously liable or the in
"rolics and detours: Acts done not or the employer(s beneft or or the employee(s own personal beneft is considered as a rolic and detour. - 6 an employee engages in a tas* or his own personal beneft, the employer #ill not be vicariously liable or any tort committed during such period as it is outside the course o employment. - Storey v +shton &he court held the deendant not vicariously liable or the plainti(s in
$rohibitions by employer: An act may be within the employee(s course o employment even though it has been e8pressly orbidden by the employer. 7or it to be so5 - &he act must be related to the employee(s
- !/$al v London -rans)ort Exec"tive &he court held the deendant not vicariously liable or the plainti(s in
- Rose v Plenty &he court held the deendant vicariously liable or the plainti(s in
liable or, and thereore the plainti claimed compensation rom the bus company, who then claimed indemnity rom the employee. Deences $. %ontributory negligence ).
olenti non ft in
