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Vicarious Liability Notes

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VICARIOUS LIABILITY AND NON-DELEGABLE DUTIES D = employer; X = employee VICARIOUS LIABILITY Vicarious liability is where an employer is liable for the actions of their employee. There are three requirements: (i) a tort; (ii) committed by D's employee; (iii) in the course of his employment. Element 1: Employer / employee relationship Standard contracts of employment:
? Traditional test: for an employment relationship is one of control: did the D control both what X did and how she did it --- Cassidy v Ministry of Health [1951]
o The strict control test is no longer relevant --- inappropriate for highly skilled employees (e.g. an employer couldn't tell a doctor what to do). Now one of a number of factors.
? Composite test: set out in Market Investigations [1969] involves taking an overview of a number of different aspects of the relationship: Cooke J: a woman who did time-to-time surveys was an employee: "fundamental test to be applied is this: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account?'. If the answer is 'Yes', then the contract is a contract for services. If the answer is 'No', then the contract is a contract of service" o Factors common to an employee: (i) integrated into the business; (ii) paid a regular wage; (iii) has tax and benefit provisions; (iv) supplied with tools, uniform, vehicle; (v) works at a regular time / place. o Factors common to an independent contractor: (i) has no 'interest' in the 'employer's business'; (ii) is paid by the job done; (iii) does not have tax / benefit provision; (iv) supplies his own tools, uniform / vehicle; (v) works at a regular time /
?????Residual control test: E v Lady of Charity: Ward LJ: "the question of control should be viewed in a wider sense than merely inquiring whether the employer has the legal power to control how the employee carries out his work. It should be viewed more in terms of whether the employee is accountable to his superior for the way he does the work so as to enable the employer to supervise and effect improvements in performance and eliminate risks of harm to others." No contract, but relationship is 'akin to employment':
? E v The English Province of Our Lady of Charity [2012]: Priest was said to have abused a young girl --- was an employee, independent contractor? Ward LJ: although there was no contract of employment, the relationship was "akin to employment" o In establishing such a relationship need to look to: (i) control by the D of X; (ii) control by the X of himself; (iii) how central was the X's activity to the business; (iv) whether the activity was integrated into the organisational structure of the enterprise; and (v) whether X was in business on his own account.

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