Vicarious Liability Essay Sample
Vicarious liability arises when one party is responsible for the civil wrong of another. This state of affairs occurs often when an employer is held responsible for the civil wrongs committed by an employee. An employer can merely be held responsible for the civil wrongs of an employee. non for an independent contractor. There are besides some regulations that must be satisfied. First it must be proven that the tortfeaser is an employee. The act the tortfeaser ( employee ) carried out must be Byzantine or condemnable. The Byzantine or condemnable act must hold been during the class of employment. There are 3 trials to set up whether an person is an employee or an independent contractor these are the control trial. integrating trial and the economic world trial. which is besides known as the multiple trial. The control trial analyses who has control over the manner 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 so the tribunals are more likely to see the individual transporting out the work as an employee.
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However. if it is up to the individual transporting out the work how to find how and when it should be done. so that individual is more likely to be considered an independent contractor by the tribunals and is therefore responsible for their ain civil wrongs. This trial was applied in Mersey docks v Coggins Ltd ( 1947 ) The integrating trial looks at whether the person’s work is an built-in portion of the concern. If they are an built-in portion of a concern for illustration a boulder clay worker. so they are more likely to be seen as an employee to the tribunals. If they are non seen as an built-in portion of the concern for illustration some one who has come in to repair a boulder clay. so they will be seen by the tribunals as a independent contractor. This trial was established in Stevenson V McDonald ( 1969 ) . The economic world trial looks at the contractual relationship between the supporting two parties. An person who has a contract of service is more likely to be seen as an employee by the tribunals. Whereas. an person who has a contract for services. is more likely to be seen as an independent contractor.
The tribunals may besides look at the manner an person is paid. If an person is paid a wage and the individual they are working for makes revenue enhancement decreases. so the person is more likely to be seen as an employee. If nevertheless. the individual is paid a ball amount and has to do their ain decrease they are more likely to be seen as an independent contractor. There are besides elements to see which are inconsistent with a contract of employment. which includes ; the ability to engage ain employees. demand that you provide your ain tools and stuffs and that you pay your ain revenue enhancement and national insurance. This trial was applied in the Ready Mixed Concrete Ltd 5 Minister of Pensions and National Insurance ( 1968 ) where it was held that the driver was an independent contractor. The Salmond trial establishes whether the Byzantine act was during the class of employment.
Fortunes where civil wrongs fall within the class of employment include: unlawful act authorised by the employer as in Poland V Parr ( 1927 ) in this instance an employee assaulted a male child who was stealing from his employer’s lorry. Unlawful and unauthorized manner of making Acts of the Apostless authorised by the employer is another illustration. Another clip when vicarious liability applies is when an employee carries out an expressly out act but one that is of benefit to the employer such as in the instance of Rose v Plenty ( 1976 ) . when the unlawful act occurred during going to or from a occupation but the employee is being paid for this clip. There are besides state of affairss when the act doesn’t autumn within the class of employment. For illustration. when an act occurs while the employee is ‘on a play of his or her own’ like in the instance of Hilton v Thomas in this instance employees took an unauthorized interruption and on returning one of the employees crashed the new wave killing person. the employer wasn’t held apt for this. Employers can besides be held apt for condemnable Acts of the Apostless that besides amount to civil wrongs. For illustration in Lister V Hesley ( 2001 ) in this instance. employers were held responsible for an employee who had sexually abused 3 claimants.
Vicarious liability is a combative country of the jurisprudence. as it is the construct of enforcing duty and liability on a 3rd party. There are nevertheless many justifications for enforcing vicarious liability on a 3rd party for illustration employers. One ground is that the employer benefits from the work of the employee. and should hence be held responsible for any wrongs they commit. In add-on. because employers are held responsible for any actions their employees make they should besides be held accountable for the civil wrongs of their employees and guarantee they carry out the work safely. This will so drive up quality criterions for other employers in that same pattern. This may assist forestall other civil wrongs of a similar nature from happening. therefore protecting the populace and other employees from Byzantine Acts of the Apostless. Another justification for enforcing liability on a 3rd party is that they are more able to bear the fiscal load of liability.
This justification besides ensures that the claimant is compensated adequately for their harm. which is an purpose of civil wrong jurisprudence. Employers besides have to hold or pay mandatory insurance. When Byzantine Acts of the Apostless occur the employer would merely pay the insurance premiums non the compensation itself. The chance of increased premiums may drive other employers from a similar profession to increase their criterions of wellness and safety therefore moving as disincentive to others which is another purpose of civil wrong jurisprudence. Employers besides have the power to train employees for hapless on the job pattern. they hence have the ability to understate the hazard of Byzantine Acts of the Apostless. If they don’t train their employees and so they commit a Byzantine act for a similar ground so employers should be found apt as they did non make everything they could to forestall this civil wrong from happening. Conversely. there are facets of vicarious liability that seem really unjust on employers. Vicarious liability can be seen every bit unjust as it contradicts the basic ‘fault’ rule of civil wrong jurisprudence.
In footings of the employer/employee state of affairs. it is doing the employer a tortfeaser every bit good as the employee when it was the employees own mistake. This can be seen every bit unjust as they are keeping the employer responsible for actions of an independent. self-thinking single. whom is able to anticipate effects to the actions they make. Another facet that can be seen unjust is that even if the employer expressly forbids an employee from carry oning a certain activity and the employee still does it. the employer can still be found apt. This occurred in the instance of Limpus v London General Omnibus Company ( 1862 ) . In this instance the employer expressly forbade the coach drivers from rushing. yet they did it anyhow and injured the claimant. and the employer was found vicariously apt. This is clearly a strong statement against the equity of vicarious liability as the employer had taken action against behavior that could do hurt and yet he was still held apt for the effects of his employees’ actions. Another statement against vicarious liability is that regulations and/or trials for vicarious liability are applied inconsistently. this produces the result of instances that contradict each other.
There are two illustrations of this. The first eample of contradictory instances is between Rose v Plenty and Twine V Beans Express. In Rose the employer was held apt for the actions of their employee. which resulted in a male child. being injured after the employee gave him unauthorized lifts. However. in Twine the employer was non found apt for the hurt caused by the employee. The merely little difference in the instances is that the employer was non profiting from the claimant deriving a lift in Twine. This determination makes it look unjust for the employers in Rose to hold been apt. Particularly since they were non likely to hold been cognizant of these lifts happening.
The 2nd illustration is between Limpus v London General Omnibus Company ( 1862 ) and Beard v London General Omnibus Company ( 1900 ) . In Limpus employers were found apt whereas in Beard the employers were non found vicariously apt. It can besides be perceived as extremely unjust for an employer to be held vicarious apt if the mere careless actions of an employee. which lead to a claim. was the first clip this kind of behavior had occurred. This occurred in Century Insurance Co. Ltd v Northern Ireland Transport Board ( 1942 ) when the employee heedlessly through down a lit lucifer in a gasoline station doing an detonation. Due to this being the first illustration of careless behaviour the employer had no chance to train the employee which could hold stopped this Byzantine act from happening.
Furthermore in this peculiar instance no sensible employer would hold moderately anticipate a sensible employee from throwing down a lit lucifer. After all it is common sense that this could ensue in an detonation. It can be argued that in this instance the employer was held vicariously apt for the employees’ mere sloppiness. and this can be perceived as unfair on all employers if they are held for mere sloppiness of an employee which they couldn’t have foreseen. In Trotman v North Yorkshire County Council ( 1999 ) the employer was non held vicariously apt for the Byzantine actions of their employee ( who committed the offense of sexual torment on one male pupil ) . The tribunals general feeling was that the more utmost the act of the employee. the less likely. and the less just it would be for the employer to be held vicariously apt for the Byzantine actions. However in the instance of Lister v Hesley Hall Ltd ( 2001 ) the employer was held vicariously apt. This was a consequence of a new cardinal trial being introduced. The new trial was to place if there was sufficient connexion between the employment and the civil wrongs carried out by the employee.
This trial now means that if the civil wrong was beyond the class of employment. the employer could still be held apt every bit long as there is a nexus between the civil wrong and the employment. This makes it progressively unjust on employers as there are non any safeguards they can take that will protect them from being held vicariously apt if the civil wrong has a nexus with the employment. For illustration they could hold given employees extended preparation and policies on what is acceptable and unacceptable behavior and they will still be apt. Since the Lister instance. the trial that was established in it has been used in Mattis V Pollock ( 2003 ) where the chucker-out went place after a battle at the nine. came back and stabbed the claimant. The employers were held apt were held apt.
Before the Lister instance the employers wouldn’t have been apt because this unauthorized act didn’t profit them in anyway and was beyond the class of employment. However the tribunals decided that there was a close connexion between the employment and the civil wrong as chucker-outs are supposed to be intimidating. Overall. although there are many justifications for vicarious liability. it would look that it is extremely unjust on employers as there is no existent manner of them protecting themselves from being held vicariously apt since the instance of Lister v Hesley Hall Ltd ( 2001 ) . The lone thing that may go on is that the insurance companies may action the employee for insurance. This occurred in Lister V Romford Ice and Cold Storage Ltd ( 1957 ) . However this option is seldom used due to the strong unfavorable judgments it receives as it destroys the intent of vicarious liability.