WorkConnexions

Vicarious liability arises as a result of the relationship between the person who commits the tort and a third party although the most common relationship which gives rise to vicarious liability is the employer - employee relationship, there are other relationships which one should be aware.

Principal and agent
Business partners
Vehicle owners and delegated drivers

There three essential components that must be satisfied in order that a third a party can be held liable for the torts committed by another.

1. The person must commit the tort and must be an employee as opposed to an independent contractor
2. The employee must have committed a tort
3. The tort must have been committed on the course of employment

Who is an employee?
The control test distinguished an employee and an independent contractor on the basis of whether the employer had the right to control the nature of the work done and, most importantly, how it must be done as established in Yewen v. Noakes.

Economic Reality Test

This test is also known as the pragmatic test. It concerns drivers who were hired to deliver concrete using vehicles purchased from the claimant which had to be painted in the company colours and carry the company logo. The claimant argued that they were not employees as they he did not pay their national insurance contribution and they worked flexible hours. The courts ruled that there were three conditions that had to be met before a worked would be considered to be an employer.
1. The employs must provide work or skill for the employer in return for payment of a wage or some other remuneration.
2. The employee agrees expressly or impliedly, that they will work under the control of the employer
3. All other circumstances are consistent with the situation being characterised as a contract of employment

This line has become quite blurred and the results of this are significant. As damages awarded in tort would certainly force companies to re-examine how they manage employees or as some cases contractors. When is an employee on a frolic of his own and when can an employer be held for mistakes that occurs as consequence of such a frolic. It has being common place practice due to the health and safety act that companies define an authorised way of doing things. So as to negate any liability. This has had mixed success in the case of century insurance an employee performed an authorised task of transferring petrol to a storage tank. Due to the fact that he was smoking he caused an explosion. The principle being here that an employee can perform a task carelessly and in such a case the employers will be held liable. The case that demonstrates this point Rose v. Plenty where an employee was expressly prohibited from carrying anybody on his milk float. He broke this rule and carried a boy who helped him perform his duties. The employer was found to be liable even though he had taken precautions. This case places an enormous liability on the employer to insure that there employees are doing what they are employed to. This case is seeking to protect the interest of those that would have no other recourse for financially compensation. The boy had been injured. It is not feasible that he sued the driver as he would not be financially independent pay damages. So the courts ruled that business was capable and could bear the loss.

In beard v, London Omnibus Co a bus conductor drove a bus and in the process injured a mechanic. The courts ruled that the employer was not liable as he was doing something which he was not employed to do and so was outside the course of employment.

The liability that is placed upon business is considerable not only do they have to insure that employees work in an authorised mode but that even if they do that and the employee performs the task carelessly. The employer can still be held financially liable.