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vicarious liability essay plan for scenario based questions
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Vicarious liability knowledge for a scenario:Definition: VL is when liability is imposed on one person for the wrongful acts of another I.e and
employer being responsible for the torts of their employee. The tort committed must be connected
to their relationship. It’s a strict liability tort and joint liability. Reasons for this is because employers
have more money, employer profits off employee and easier to identify etc.
1: the commission of an underlying tort must have been committed by the employee.
2: employer employee relationship. The claimant must show that the tortfeasor is an employee if
they are to sue to the employer. An employee has a contract of service, not a contract for services,
e.g., a chauffeur has a contract of service, but a taxi driver has a contract for services. Various tests
for what's an employee.
Control test: traditional test. Looks at what control the employer has over the employee. [yewen]- a
servant is someone subject to command of their master’. But this isn't good anymore as many jobs
are complex and employer has less control e.g., surgeon.
Organisation test: tests whether the employee is a part of an organisation such as a DR to a hospital.
This was introduced in [Stephenson]. Independent contractors are an accessory to the business,
unless they are hired for the purpose of committing the tort [Ellis].
Multiple(economic)test: created in [ready mixed concrete]. Look at multiple factors such as where
and when they work, control, whether they can be fired, contract, pay, who pays tax and NI, do they
provide own equipment etc. This allows flexibility. A prisoner akin to employee in a prison kitchen
[cox]
3. tort committed in course of employment {Salmond test): employer is only liable if was done in
course of employment. This could be a wrongful act authorised by the employer [Poland]- hitting a
boy to stop stealing (impliedly authorised as benefits business). Or a lawful act that’s authorised but
done wrongly [century insurance]- smoked whilst delivering petrol...kaboom.
Cannot be on a frolic of one's own: if they are doing something outside their duties, employer not
responsible e.g. [Hilton]- accident when driving 7 miles away from were meant to be.
Criminal acts: no liable for criminal acts unless they have asked the employee to do it. However, HOL
in [lister] decided that criminal acts if so, closely connected to employment can hold employers to
account. [Morrisons]- punching customer in head and racist.
4: effect of VL: VL doesn’t take responsibility away from the employee as both can still be sued. And
the CLCA1978 allows the employer to require the employee to reimburse any damages they have
had to pay.
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