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Employers And Vicarious Notes

GDL Law Notes > GDL Tort Law Notes

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A more recent version of these Employers And Vicarious notes – written by Cambridge/Bpp/College Of Law students – is available here.

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Revision: Tort

[THE LIABILITY OF EMPLOYERS: VICARIOUS LIABILITY]

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Vicarious liability: 'on behalf of another' - where one party is held liable for the torts of another, arising from a specific relationship between the parties

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Form of secondary liability

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No need to prove fault on the part of the D: D has strict liability

Rationale:

1. Employer's superior financial position : compulsory insurance: Employer's Liability (Compulsory Insurance Act) 1969

2. Control and supervision over employees

3. Should suffer the consequences of negligent recruitment

4. Ensures higher standard of care and better training, supervision and control

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Employer's Indemnity/Contribution: Employer can seek an indemnity from the employee - so they can sue the employee for an indemnity o

S. 1(1) Civil Liability (Contribution) Act 1978: "The Lister Principle"

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If employees are up to no good: collusion/illegality

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In Lister: C was run over negligently at work and sued his boss vicariously: but employer exercised master's indemnity: the C was in fact the negligent employee's father - they were trying to make money from vicarious liability (because they had made money from the litigation - they were not impecunious -so the employer was able to sue for an indemnity)

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Principal + Agent: If actions are authorised by the principal, then he is vicariously liable

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Partnerships: partners are vicariously liable for the actions of the other partners: s.10 Partnership Act 1890

Elements:

1. A tort committed by another (X)

2. An employment (or agency) relationship exists between D and X; and

3. The tort was committed in the course of employment 1

Revision: Tort

[THE LIABILITY OF EMPLOYERS: VICARIOUS LIABILITY]
A tort must have been committed: must establish this before the D can be made vicariously liable (usually negligence, but can be trespass to the person) The Employment relationship

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Employer/Employee relationship - 'Contract of service': contrast with employer-independent contractor relationship where there is a 'Contract for services' - vicarious liability won't usually arise

The Control Test (Historical): Too simplistic but still partly used

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Yewens v Noakes: the more control an employer exercises the more likely an employment relationship

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Doesn't always work - doctors, lawyers, accountants: control is not conclusive

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Cassidy v Minister of Health - hospital was vicariously liable despite only limited control over the doctor

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Argent v Minister for Social Security however - art teacher was allowed to teach what he wished with no prescribed syllabus and with only occasional visits by Director of Drama Studies - found to be self-employed

The organisation or integration test: Doesn't always work

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Denning LJ in Stevenson, Jordan and Harrison v MacDonald: whether or not the worker is fully integrated within the organization or whether they are auxiliary to it

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Whittaker v Minister of Pensions: trapeze artist was held to be fully integrated within circus:

Multiple or Economic Reality Tests: 'Economic reality, composite' test: favoured approach

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Market Investigations v MOSS: Cooke J - control not the only method of determining relationship: multiple factors - no definitive test o

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Part-time interviewer conducting market research held to be under a contract for service

Ready Mixed Concrete v MOP: X drove a concrete lorry: held to be an independent contractor despite company control over uniform and colours of the lorry. He was responsible for hiring, insuring and running the lorry and was paid on the basis of his mileage o

MacKenna J: 3-stage test:

1. Remuneration 2

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