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Summary Vicarious Liability Revision

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A Tort law revision summary on vicarious liability. Received a 2:1 from Cambridge University!

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  • September 26, 2020
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  • 2018/2019
  • Summary
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TORT SUPERVISION 8 REVISION
Vicarious Liability

Necessary Elements
1. Tort by X
2. Relationship between D and X capable of vicarious liability (relationship ‘akin to employment’
3. Connection between X’s conduct and the relationship between D and X

Relationship between D and Tortfeasor
Must be capable of giving rise to VL
 Not strictly restricted to employment
 Lord Phillips (Institutes of Christian Brothers) – was member acting for the “common purpose” of the
institute?

Service v. Services
 VL arises from a contract of service (servant) but not from contract for services (independent contractor)

Intent of Parties
 Actual intent/declaration of the parties is not conclusive as to the legal classification of the relationship
(Ferguson v John Dawson & Partners)

Different Tests
1. Control Test
 Old test – if D could control what is to be done and how it is done, he was an employer
 Limitations exposed by negligent hospital treatment: couldn’t be said that hospital manners
controlled how doctors carried out their duties
2. Integration Test
 Considers whether the activity is integrated into organisational structure of the enterprise
 Is X’s work done as an integral party of the business or is it an accessory? (Stevenson, Joedan &
Harrison v Macdonald)

3. Composite Test
 “Multiple factor” approach
 Considerations – does X provide his own equipment; hire his own helpers, his degree of financial
risk etc.; approved in Lee Ting Sang

Borrowing employees
 If D lends X to D2 for a job – either or both employers can be vicariously liable
 Viasystems – Rix J applies integration test; May LJ applied control test
 CCWS – Rix LJ’s approach is preferred

Relationships akin to employment
When deciding ‘akin to employment’ – tae into account 5 factors (CCWS v Various Claimants)
(i) The employer is more likely to have the means to compensate the victim than the employee
and can be expected to have insured against that liability;
(ii) The tort will have been committed as a result of activity being taken by the employee on behalf
of the employer
(iii) The employee's activity is likely to be part of the business activity of the employer;
(iv) The employer, by employing the employee to carry on the activity will have created the risk of
the tort committed by the employee;
(v) The employee will, to a greater or lesser degree, have been under the control of the employer.”

1. Religious institutions
 CCWS – Instute and the individual brothers shares a “common purpose” – sufficiently “akinto
eomployment’
 JGE - priest has central role in fulfilling Catholic Church’s objectives

2. Police
 Where D, the owner of a car, expressly or impliedly requests X to drive the car in performance of
some task carried out for D, D will be vicariously liable for X’s negligence in the driving of the
car.
3. Foster Parents
 Armes v Nottinghamshire CC - The relationship between the foster parents and D was not ‘akin to
employment’; lack of control over over day to day family life

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