Tort Notes
Vicarious Liability
* Employer’s liability for employee’s wrongdoing committed by employee in course employment- strict liability/ absence of wrongdoing by defendant * Employer will not be liable unless employer-employee relationship/ employee must commit a tort/ must be during course employment * Casual potency important * Must be committed by an employee- employer/employee relationship: * Distinguished between contract of employment/contract for employment * Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968): Courts will take a multi-factorial approach as to who is an employee- e.g. express terms of contract, national insurance, liability insurance, provision of tools, control- all depends on the facts) * Control is Important: * Jennings v Forestry Commission (2008)- control and whose business is of importance- if employee has control and is independent (e.g. contractor who supplies own equipment and could appoint an assistant), they will be deemed to have control and defendant will not be liable for vicarious liability * Institute of the Brothers of the Christian Schools (2010)- no control over school/appointment of teachers * Gravil v Carroll (2008): was tort a reasonably incidental risk to the type of business/ is it fair & reasonable to impose V/L? * Sufficient connection” between tort and employment: * Lister v Hesley Hall Ltd (2002): A broad approach/ Time and place of wrong relevant but not conclusive/Not enough that employment provided opportunity to commit a wrongdoing * Maga v Archbishop of Birmingham (2010): Opportunity not enough (referred to Lister) * Hawley v Luminar LeisureLtd (2006): the worker’s permanent employee will usually remain liable and the burden of showing employment has transferred to a temporary employer will rest on them. (Courts reluctance to allow an employment relationship from being established reflects courts willingness to
* Employer’s liability for employee’s wrongdoing committed by employee in course employment- strict liability/ absence of wrongdoing by defendant * Employer will not be liable unless employer-employee relationship/ employee must commit a tort/ must be during course employment * Casual potency important * Must be committed by an employee- employer/employee relationship: * Distinguished between contract of employment/contract for employment * Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968): Courts will take a multi-factorial approach as to who is an employee- e.g. express terms of contract, national insurance, liability insurance, provision of tools, control- all depends on the facts) * Control is Important: * Jennings v Forestry Commission (2008)- control and whose business is of importance- if employee has control and is independent (e.g. contractor who supplies own equipment and could appoint an assistant), they will be deemed to have control and defendant will not be liable for vicarious liability * Institute of the Brothers of the Christian Schools (2010)- no control over school/appointment of teachers * Gravil v Carroll (2008): was tort a reasonably incidental risk to the type of business/ is it fair & reasonable to impose V/L? * Sufficient connection” between tort and employment: * Lister v Hesley Hall Ltd (2002): A broad approach/ Time and place of wrong relevant but not conclusive/Not enough that employment provided opportunity to commit a wrongdoing * Maga v Archbishop of Birmingham (2010): Opportunity not enough (referred to Lister) * Hawley v Luminar LeisureLtd (2006): the worker’s permanent employee will usually remain liable and the burden of showing employment has transferred to a temporary employer will rest on them. (Courts reluctance to allow an employment relationship from being established reflects courts willingness to