Vicarious LiabilityDefinition A situation where an employer is responsible for damages caused by the torts of his employees to a third party while acting in their course of employment. Strict Liability Joint Liability - An employer will be liable irrespective of fault. - Even if an employer has nothing to do with the tortious act, he will be held liable. - Both employer and employee can be held liable for the tortious act. Why is it imposed? 1. Control of employees - An employer is in control of the conduct of his employees. - Thus, an employer should be made liable/responsible for his employees’ acts. 2. Benefit and burden principle - An employer benefits from the work of his employees. - Therefore, an employer should also be made liable for any damage caused by the employees in the course of their employment. 3. Deep-pocket argument - An employer will be in the best financial position to meet a claim as an employer has the resources (money). - An employer is best able to absorb loss; they are often insured. - Thus, third parties should sue an employer and not his workers. 4. Recruitment - Any tortious act committed by an employee indicates that the employer is negligent in selecting his employees. - Therefore, an employer should be responsible for his employees’ tortious act. 5. . . Control test . what.E. The tortfeasor must be an employee of the master (employer) .“Full time” indicates that a person is an employee. . . what. Elements 1.To promote care and ethical work practice by employees so they do not easily “turn a blind eye”.Encourages higher standards of safety. . but has discretionary power on how.It must be determined that a person is an employee and not an independent contractor.Where the employer had control over the work and was in such a position to determine how. . Promotion of care . and when a .The test was laid down in Short v J & W Henderson where Lord Thankerton listed the four factors to be considered: i) Power of selection by the employer ii) Power in determining salary or other remuneration iii) Power of right of the employer to control the method in which the work was done iv) Power and right of the employer to terminate the employee’s services . .The degree of control exercised over a person’s work by the employer is looked into. and when tasks should be done.There are three tests to help determine who an employee is: i.Employer: somebody who has the right to hire and fire.If a person is engaged to do a particular work.g: Helpful in determining whether a factory worker is an employer. it is not integrated into it. .Nurses. such person is an independent contractor. ii) Borrowed employees . radiographers. iii.The test was established in Ready mixed Concrete Ltd v Minister of Pensions & National Insurance where three factors need to be fulfilled in order for there to be a contract of service: i) Employee or servant agrees that he will use his own expertise and the employer pays him in monetary form or any other remuneration. Multiple test . but is only accessory to it.The test was established in Stevenson. house-surgeons. . Business integration or Organisation test . and assistant medical officers are employees of the hospital for purposes of vicarious liability. Jordan & Harrison v MacDonald Evans where a distinction between a contract for service and contract of service was made.A person in a contract of service: employee .Although work is done for the business. vicarious liability does not apply. . ii.A person is employed as part of the business and his work forms an integral part of it.Special rules: i) Health authorities . iii) All other conditions in the agreement are consistent with the nature of the job being a contract of service.Thus.A person in a contract for service: independent contractor .task is to be done. . ii) Employee or servant agrees that he will be bound by the employer’s instructions. an employee of A. . .Ilkiw v Samuels . unless A has stripped himself of all possession and control. 3.Acting in the course of employment: i) The act is a wrongful act authorized by the employer ii) It is an unauthorized manner of doing something which is authorized Negligent and careless acts: The employer will not be liable if the employee is careless in doing something that he is not employed to do. The tort must have been committed in the course of employment .The principle as laid down in Mersey Docks & Harbour Board v Coggins & Griggiths (Liverpool) Ltd is: .If B.. a tort must have been committed by the employee and all the elements of the particular tort must be satisfied. The employee must have committed a tort. 2. A will be vicariously liable for the tort committed. is lent to C. . and B subsequently commits a tort.In Imperial Chemical Industries v Shatwell. it was established that for an employer to be vicariously liable.Century Insurance Co Ltd v Northern Ireland Road Transport Board The court held the defendant (employer) vicariously liable for the act of his employee throwing a burning match onto the ground and causing the plaintiff’s property to be destroyed in the course of his employment as it was an unauthorized manner of performing his task of delivering petrol. If an employee engages in a task for his own personal benefit.The act must be done for the benefit of the employer . as the act was related to his job. .The act must be related to the employee’s job .The court held the defendant vicariously liable for the injury of the third party that arose from the employee’s negligent conduct as a driver within the course of his employment in allowing the third party to drive the lorry. For it to be so: . . Prohibitions by employer: An act may be within the employee’s course of employment even though it has been expressly forbidden by the employer.Storey v Ashton The court held the defendant not vicariously liable for the plaintiff’s injury as the tort arose from the act of the employee taking a detour to run his own errands when he should have been delivering wine from a cart.Limpus v London General Omnibus The court held the defendant vicariously liable for the plaintiff’s injury as the act of the employee obstructing a rival bus was in the course of his employment even though the employer had printed specific instructions not to obstruct other bus drivers. the employer will not be vicariously liable for any tort committed during such period as it is outside the course of employment. . and as he was still driving with passengers. Frolics and detours: Acts done not for the employer’s benefit or for the employee’s own personal benefit is considered as a frolic and detour. thus making the act not within the course of his employment.Iqbal v London Transport Executive The court held the defendant not vicariously liable for the plaintiff’s injury as the employee was a bus conductor. . whether as a joint tortfeasor or otherwise. 10.Twine v Bean The court held the defendant not vicariously liable for the hitchhiker’s death that arose from the employee’s act of giving the hitchhiker a lift. Employer’s Indemnity An employer has a right to claim indemnity for the loss attributable to the employee’s breach of contract. . thus making the act outside the course of his employment as it was not for the defendant’s benefit. CLA 1956: permits contribution from an employee who is or would. as the employee had been expressly forbidden by the defendant from doing so. . and the prohibition of employing boys only affected the manner or method in which the worker was to perform his duties as a milkman.Rose v Plenty The court held the defendant vicariously liable for the plaintiff’s injury as the tort occurred while he was delivering milk. which is within the course of his employment. who is prohibited from driving the bus..Lister v Romford The plaintiff suffered injuries from the negligent conduct of an employee to which the bus company was vicariously . have been liable in respect of the same damage.Sec. . if sued. liable for. Volenti non fit injuria . Contributory negligence 2. and therefore the plaintiff claimed compensation from the bus company. Defences 1. who then claimed indemnity from the employee.