A2 law: tort: Vicarious Liability Question 2-Fairness/Unfairness.
Vicarious liability arises when one party is responsible for the tort of another. This situation occurs frequently when an employer is held responsible for the torts committed by an employee. An employer can only be held responsible for the torts of an employee, not for an independent contractor. There are also some rules that must be satisfied. First it must be proven that the tortfeaser is an employee. The act the tortfeaser (employee) carried out must be tortuous or criminal. The tortuous or criminal act must have been during the course of employment. There are 3 tests to establish whether an individual is an employee or an independent contractor these are the control test, integration test and the economic reality test, which is also known as the multiple test. The control test analyses who has control over the way that the work is carried out. If the employer sets out how the work is to be done and when it is to be done by then the courts are more likely to consider the person carrying out the work as an employee. However, if it is up to the person carrying out the work how to determine how and when it should be done, then that person is more likely to be considered an independent contractor by the courts and is therefore responsible for their own torts. This test was applied in Mersey docks v Coggins Ltd (1947) The integration test looks at whether the person’s work is an integral part of the business. If they are an integral part of a business for example a till worker, then they are more likely to be seen as an employee to the courts. If they are not seen as an integral part of the business for example some one who has come in to fix a till, then they will be seen by the courts as a independent contractor. This test was established in Stevenson v McDonald (1969). The economic reality test looks at the contractual relationship between the defending two parties. An individual who has a contract of service is more likely to be seen as an employee by the courts. Whereas, an individual who has a contract for services, is more likely to be seen as an independent contractor. The courts may also look at the way an individual is paid. If an individual is paid a salary and the person they are working for makes tax reductions, then the individual is more likely to be seen as an employee. If however, the person is paid a lump sum and has to make their own reduction they are more likely to be seen as an independent contractor. There are also elements to consider which are inconsistent with a contract of employment, which includes; the ability to hire own employees, requirement that you provide your own tools and materials and that you pay your own tax and national insurance. This test was applied in the Ready Mixed Concrete Ltd v Minister of Pensions and National Insurance (1968) where it was held that the driver was an independent contractor. The Salmond test establishes whether the tortuous act was during the course of employment. Circumstances where torts fall within the course of employment include: wrongful act authorised by the employer as in Poland v Parr (1927) in this case an employee assaulted a boy who was stealing from his employer’s lorry. Wrongful and unauthorised way of doing acts authorised by the employer is another example. Another time when vicarious liability applies is when an employee carries out an expressly forbidden act but one that is of benefit to the employer such as in the case of Rose v Plenty (1976), when the wrongful act occurred during travelling to or from a job but the employee is being paid for this time. There are also situations when the act doesn’t fall within the course of employment. For example, when an act occurs while the employee is ‘on a frolic of his or her own’ like in the case of Hilton v Thomas in this case employees took an unauthorised break and on returning one of the employees crashed the van killing...
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