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Vicarious Liability Notes

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VICARIOUS LIABILITY

A form of secondary liability under which employer may be held liable for the acts of the employee.
o The employer is strictly liable to pay the claimant.
Justification:
o Lord Phillips in Catholic Child Welfare: so long as it is fair,
just and reasonable, liability for a tortuous wrong is born by someone with the means to pay compensation. (Deep Pockets
Justification)
 Can still sue the original tortfeasor but under
Employers' Liability (Compulsory Insurance) Act 1969 all employers have to obtain compulsory insurance for their employees.
o Rex LJ in Viasystems v Thermal Transfer: basis that those who gain profit from the actions of their employees should also bear the consequences of the negligence of their employees (benefit/burden theory)
o Also:
 Employer may be careless in selecting negligent employees. Should suffer the consequences.
 Employer exercises control and supervision of its employees.
 Encourages employees to provide better training etc.
Requirements:
o 1) A tort (excluding nuisance) has been committed by X
o 2) X was D's employee (or akin to an employee)
o 3) The tort was committed in the course of employment (or a relationship akin to employment)
Defining an Employee:
o Ready Mixed Concrete v Minister of Pensions [1968] -
driver paid for lorry, but had company uniform, colours and a salary. No set hours, instructions, routes, breaks etc. Held he was an independent contractor. Established 'economic reality' test. Must take account of:
 Remuneration
 Control
 Viasystems v Thermal Transfer [2005] - can even have two masters if they both have control over the worker.
o Dual liability might occur where an employee is lent or transferred to work for another and both employers are entitled,
and obliged, to control the employee's actions so as to prevent the negligent act
 Hawley v Luminar Leisure [2006] - Nightclub hired bouncer who attacked claimant through a

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