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Negligence – Vicarious LiabilityTort Law

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Tort

Vicarious Liability

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Introduction

• Vicarious liability is where law makes one person liable for a tort committed by another.

• Biggest example is that of an employer’s liability for a tort committed by his employees during course of work

• 2 main tests

• Was the person who committed the tort an employee?

• Did employee commit the tort ‘during the course of his employment?’

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Justification

• Form of strict liability

• Employer remains liable for actions of his

employee even though not at fault

• Harsh but fair…

– Protecting the claimant (issue of resources)

– Identification of the employee

– Protecting the employee

– Improving safety standards

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Liability of employee

• Employee still liable

• Jointly liable

• Claimant can choose who to sue (more likely to

sue employer)

• Employer can then sue employee under Civil

Liability (Contributions) Act 1978

• Again little point though due to lack of employee

resources

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Establishing vicarious liability against employer

• C Must show three things:

– Employee has committed tort (normal rules apply)

– Must show worker concerned has employee status

– Employee committed tort during course of

employment

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Who is an employee?

• Worker = someone who performs services for

payment

• Two types:

– Employees

– Independent contractors (self employed)

• Employer liable for employees but not

independent contractors

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Who is an employee?

• Employee = works under a contract OF service

• Independent contractor = works under a contract FOR services

• Most cases the difference is obvious

• Some cause more problems – taxi drivers and chauffeur

• What about casual workers, zero contract hours, those on commission, consultants, freelance agency?

• Courts decide but no simple test

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1,Control Test

• (original and Victorian test)The test is whether the employer had the right to control what the employee did and the way in which it was done

This test is hard to apply accurately today but is still useful, eg for ‘borrowed workers’

• Hawley v Luminar Leisure 2006

• Major fault of the control test does not deal with professional or highly skilled workers

• Not the ‘what to do’ but ‘how to do’ it causes the problem

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2.Integration test

• more closely worker involved with core business

of employer the more likely he is an employee –

doctors for instance

• Problem – not always sure who is integral to

business of employer

• Neither ideal but both still used

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3.Multiple/Economic Test

• Modern approach and reflects that there is no

single way of identifying the difference

• In this instance if there is any doubt the court

weighs up the two sets of facts and makes a

decision.

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Factors of the Multiple Test

• Is worker paid a regular salary or commission?

• How do they pay income tax and NI?

• What does the contract say?

• Can worker delegate without permission?

• What about premises, equipment and staff?

• Investment and management decisions?

• Good example – Ready Mix Concrete v Minister of Pensions (1968)

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Ready‐Mixed Concrete v MPNI [1968] 1 All ER 433

A contract provided for a driver to own his lorry (bought with money loaned by

the firm) and allowed him to use it for his own profit‐making purposes.

However, the drivers wore company uniforms, their lorries were painted in

company colours and they had to follow instructions from the company.

Principle – The judge said factors which pointed towards a contract of

employment are the payment of a wage, the exercise of control, and the

acceptance of the business risk; here the driver took a certain business risk

himself and so was an independent contractor and not an employee. The

multiple test involves the court considering all the facts of a case before

deciding whether a worker is an employee or an independent contractor.


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Recent developments

• There have been cases in recent years, that has

established another way in deciding whether the

person committing the tort was an employee or

not

• Known as the “akin to employment “ test, the

courts have found that if you have a close

connection to the employment, the employer will

be liable

• Cox v Ministry Of Justice 2016

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Authorised Acts

• An act carried out by the employee on the

instructions of the employer

• And if the act amounts to a tort , employer is

vicariously liable

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Acting against orders

• Employer still liable for an act carried out by his

employer where the authorised act has been

carried out in a manner that the employer has

expressly forbidden

• Rose v Plenty 1976

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An unauthorised act

• An act carried out by the employee without

instructions from the employer either express or

implied

• If the act is unauthorised and therefore not part

of the job then employer not vicariously liable

• Beard v London General Omnibus (1900)

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Negligent act

• If the employee does an act badly , employer can be

liable

• Century Insurance v NI Road Transport Board 1942

• But if they do something outside the area or time of their

work, employer not liable

• Hilton v Thomas Burton Ltd 1961

• compare to

• Smith v Stages

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Criminal Offences

• If employee’s tort is also a criminal offence

employer still vicariously liable if there is a close

connection between the crime and what the

employee was employed to do.

• Mohamud v Morrisons

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