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Employer Vicarious Liability Notes

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This is an extract of our Employer Vicarious Liability document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.

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Requirements for Vicarious Liability

1. Employee committed tort

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C must first show that X committed a tort against them - showing the ordinary requirements of that tort e.g. duty of care etc.

2. Existence of employer/employee relationship

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The basic principle o Salisbury v Woodland [1970]:
? Not enough to say X employed by E
? You have to show contract of service

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Where X is independent contractor whom E has no way of controlling the method of his working o E will not then normally be considered vicariously liable for X's torts

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Identifying this Relationship o Terms of the contract
? Courts will look at the substance of the contract, not what the parties call each other within the contract
? Young and Woods v West [1980]:

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Even when the parties have done so to avoid certain taxes and then attempt to gain benefits associated with that employment o In this case, impossible to say W was self employed as he couldn't be treated as a business in his own right
? owing to the context of his work and relationship with Y. o Control
? If X is under the supervision of E and under E's instructions, then X is clearly an employee of E
? Giliker: new commercial practises and the technological age mean this is less of the case

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E.g. doctors are "employees" of a hospital

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Cassidy v Minister of Health [1951]: o Somervill LJ:
? But can't say they are under the "control" of E b/c expected to use their discretion

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(even though they do actually have a contract of service)
? Therefore, this is not a necessary factor for an employer/employee relationship necessarily. o Ordinary person would think X was under a contract of service?
? Cassidy v Minister of Health [1951]:

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Somvervill LJ: o If an ordinary person would think X was under a contract of service, he is held to be.

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ME: BUT can an ordinary person classify every single case easily? Test is too vague. o Integration?

?

Harrison Ltd v Macdonald and Evans

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Denning LJ: o if X is integral part of business, E ought to be liable as X is employee.

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BUT how do we distinguish between servants or not?
What makes someone integral or part and parcel?
o Relationship as a whole
? Looks at all of these factors - if most present then probs contract of service

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B can control how A works

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A is required to do work for B for a set period of time

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A is due to be paid a salary for the work done by B

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A's obligations are personal and cannot be discharged by a third party performing them

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The terms indicate that A is working for B and not for his own business interests
? Elias J: as a minimum, should have mutuality of obligation and control between E and X

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If so = contract of service

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Exceptions - where independent contractors can be liable o Hazardous situations
? Honeywill v Stein and Larkin [1934]:

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E therefore under a duty to ensure that proper safety precautions are taken from all who are working on his project, o whether employed by him or not
? Biffa v Maschinenfabrik [2009]

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CoA: o This principle should only apply in exceptionally dangerous/hazardous works o Where non-delegable duty
? Cassidy v Minister of Health [1951]:

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Denning LJ o At which point it matters not whether X is employed under contract of service or contract for services
? because E will be personally (not vicariously) liable if that duty is breached or not performed.

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The situation with lent employees o Problems arise when employee hired out to work for other company
? Does X remain employees of E, or become for that period employees of O?

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This determines who will then be vicariously liable for X's torts. o General rule =
? Mersey Docks v Coggins & Griffiths Ltd [1947]

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Viscount Simons:

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