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Vicarious Notes

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A party D may be liable for the act or omission of another (X) which caused loss to a third party (C), where:

1. C suffered loss as a result of the tortious act committed by X; It is not required that D himself owes C a duty of care (this is the now disregarded "master's tort theory".

2. Some relationship must exist between the tortfeasor X and D.

3. There must be some connection between the tortious act and the relationship. This requirement is satisfied where X act in the "course of his employment" by D. In such cases X's liability is not extinguished, and she is jointly and severally liable with D.

THE REQUISTE RELATIONSHIP It is necessary that the relationship between the parties is governed by a contract of service, as opposed (generally) to a contract for services. The former case is one of employment, whereas the latter is one of independent contractors. Although the classification used by the parties themselves will be taken into account by the courts, it can never be conclusive.

The conventional test used by the courts is the "control test" as expressed by Bramwell B in Yewens v. Noakes: "A servant is a person subject to the command of his master as to the manner in which he shall do his work". The gist therefore is that an employee is employed under a contract of service if his employer can tell him not only what to do but also how to do it. Such a test, however, only works satisfactorily in situations where the employer has at least as much technical knowledge as the employee, and is therefore able to instruct him in how to do the work. In many modern situations people are employed precisely because they

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