The problem question deals mainly with the issue of Vicarious Liability and Negligence. In order to advise Jerry one would have to explore the rules of vicarious liability, relevant statute law and case law which may apply.
Vicarious liability has been defined as the person who commits a wrong must be an employee and not an independent contractor, the employee must have committed a tort and the tort must have been in the course of employment.
The doctrine of ‘vicarious liability’ is a public policy that holds employers liable when a tort is committed by an employee in the course of their employment. This means that a victim of a tort can claim compensation from the employee’s company if it is proven to have been the employee’s fault that the tort occurred. There are three elements to the doctrine of vicarious liability, where the ‘employee and not an independent contractor’, ‘commits a tort’ and ‘in 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.
In order to determine who is an employee versus who is an independent contractor, this is illustrated the case of Yewens v. Noakes (1880) 6 QBD, were the respondent was a hop merchant and possessed houses which had internal communication throughout, and were used for the purposes of his trade. K lived in the houses in order to take care of them, and he was a clerk and was paid a salary of £150 a year. He resided in the houses together with his wife, children, and servant. It was held that K was not ‘a servant or other person’ within Revenue Act 1868 (c 28) s 11 (repealed), and Bramwell LJ stated that “a servant is a person subject to the command of his master as to the manner in which he shall do his work.
This case set out what was known as the ‘Control Test’ by way of stating who...