What is Vicarious Liability?
1. Is when D is responsible for the tort of another
2. Is when D is responsible for his brother
To establish vicarious what three requirements must be met?
1. C must suffer injury due to the tort
2. There must be a relationship between the person who commits the tort the tortfeaser T and D the claimant
3. Must be a connection between tortious act/omission and the relationship
When these are met what happens?
1. D is liable for the tort even if D isn't at fault
2. D isn't liable and T Is
Second requirement ……………………………. Is usually what kind of relationship
1. Relationship between the Claimant and defendant
2. Relationship between the employer and employee
The usual test is the what test?
1. Control Test
2. Salmond Test
Who came up with this test?
1. Mr Salmond
2. Bramwell B in Yewens v Noakes 1880
What did he say that an employee is?
1. A person who can be commanded
2. Someone who can be told what to do and how to do it
Give an example of a case that highlights this
1. Hawley v Liverpool Leisure
2. Hawley V Luminar Leisure 2006
However, when the situation is more complex what test may be used?
1. Rose v Plenty Test
2. Lister Test
3. Multiple Test
What does this test mean that the judge will do?
1. The judge will look at multiple factors to decide if T is an employee
2. The judge will declare that if T knows more than his employer his employer is automatically liable
In Ready Mixed Concrete v Minister of Pensions and NI what factors showed the judge that T was not an employee.
1. T owned the vehicle
2. Maintained the vehicle
3. Could hire another driver to do the work
4. Was bringing in more customers than D
5. Made up his own rules and orders
Other very important factors that the judge will look at when deciding the multiple test are:
1. Control- Is the employer in charge of the worker and the work being done?
2. Personal Performance- The work is the sort that be delegated to another T is more likely to be an employee if so
3. Mutuality of obligation- If both parties have obligations to each other e.g worker abiding by contract employer paying then he's more likely to be an employee
Other factors the court may consider include:
1. Is paid a regular salary or on commission
2. Pays tax as an employee or as a self employed person
3. Can delegate his work to another without permission
4. Can contact his own customers
5.Would be personally affected by his own management decisions
6. Uses his own premises, equipment and helpers
Third requirement …………………………..
1. There must be a connection between the tortfeasor and the act committed
2. There must be a connection between the tortfeasors act and the relationship
3. There must be a connection between the tortfeasors omission and his employee status
To show that the tort was committed when T was doing their job there are two requirements what are they?
1. b) a wrongful and unauthorised mode of doing an act authorised by a master
2. a) It is a wrongful act authorised by the master
According to what test?
1. Lister Test
Example case includes
1. Express and Echo Publications v Tanton
2.Century insurance v Northern Ireland Road Transport Board
In Various v Claimants CCWS the court found that in the cases where there is wrongdoing by employees a close connection exists if:
1. D abused T
2. D is in a position to use the employee to further business interests
3. D has done so in a way that created or significantly enhanced the risk that victims would suffer the wrongdoing
Why was D not Vicariously Liable in Lister v Hesley Hall according to the Salmond test?
1. D was not vicariously liable when applying the Salmond test because T was committing an unauthorised act by abusing boys in his care
2. T wasn't vicariously liable because he commit an authorised act by doing his job
What is the lister test?
1. Where the acts of the employee are very closely linked to his employment making it fair and just for the employer to be liable
2. Where the employer doesn't become liable for an unauthorised act T commits
What did the courts decide in Lister?
1. That T had completed an unauthorised act and D was not liable for such a tort
2. It was decided that Torts had been committed on premises when T should have been caring for the children. A close enough connection established that D was vicariously liable
What did the courts find in Various Claimants v CCWS? In Various v Claimants CCWS the court found that in the cases where there is wrongdoing by employees a close connection exists if:
1. D is in a position to use the employee to further business interests
2. . D has done so in a way that created or significantly enhanced the risk that victims would suffer the wrongdoing
D abused T
When should you apply the Lister test?
1. For other torts
2. For criminal torts
