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Vicarious Liability

Vicarious Liability

What is it?

The duty you hold for an employee actions at work.  This is a strict liability offence, which  means that there does not need to be a fault on behalf of the employers in order to be liable.

Who is an employee?

An employer is only responsible for the actions of his employees, and not generally for an independent contractor. [Honeywill v Larkin Brothers].An independent photographer took photos in a cinema, and their flash set fire to the curtain. Held that the employer was liable because the independent contractor was carrying out 'extra-hazardous' activities.

The main things considered when looking at whether somebody is an employee, and used to have different tests such as ‘control’ and ‘integration’ but nowadays the court tries to take account of all factors, as outlined in [Warner Holidays v SoS Social Services].  They include, inter aliaAmongst other things., whether those involved hve a right over hours worked, salary, sick pay and the mutuality of obligationsThe idea that an employer has a duty to provide work, and an employee has a duty to accept it. There is usually a thought that, until they are made redundant or leave, there is likely to be regular employment available for them..

If an employee is lent to another employer – his usual employer will hold liability, unless they can prove otherwise. [Mersey Docks v Coggins].

The course of employment

In order to be vicariously liable, employees need to be acting in ‘the course of their employment’, rather than on ‘a frolic of their own’. [Rose v Plenty]Milk float driver gave a lift to a thirteen year old who helped him on his rounds, even though he had been explicitly told he was not allowed to give lifts to children. The plaintiff injured himself and the driver's employers were still liable as he was inside the course of his employment. I.e. driving a milk float and delivering milk..

There are three ways in which somebody will be working within the course of their employment as outlined by the ‘Salmond’ test; when the act commited:
(1) Is authorised, either expressly or implied by an employer.
(2) Is an unauthorised way of doing something authorised by the employer.

The Salmond test is only applicable in unintentional torts.  In intentional torts, it is decided whether the act is closely related to the job (i.e. There is a lot of friction between a bouncer and a customer, and force may have to be used.)  An example of an employer being vicariously liable for an intentional tort is [Lister v Hall]A hall warden at a boarding school sexually abused children in his care. Because there was such a relative closeness, the employers were held liable.

An example of an employer not being vicariously liable because the tort was so outside the scope of their employee’s duty is [AG of British Virgin Islands v Hartwell]A policeman took a gun from his station, travelled across several islands away and shot a man. This was held as going on a frolic of his own, because the tort was so remote.

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