5. Vicarious Liability - Delict

Front 1

What is vicarious liability?

Back 1

The liability of one party for the acts of another

Front 2

What is meant by culpa tenet suos auctores

Back 2

Fault binds to its author

Front 3

What is the maxim meaning fault binds to its author

Back 3

Culpa tenet suos auctores

Front 4

What is meant by qui facit per alium facit per se?

Back 4

Where one does something through another, he is held as doing it himself

Front 5

What maxim means where one does something through another, he is held as doing it himself

Back 5

qui facit per alium facit per se

Front 6

What is meant by respondeat superior?

Back 6

Let the master answer

Front 7

What maxim means let the master answer

Back 7

respondeat superior

Front 8

Where does vicarious liability operate?

Back 8

In employment, agency, and partnership

Front 9

What are the justifications for giving vicarious liability

Back 9

As an employer takes the benefits of his/her business which is conducted through others, so must they take liability arising from the conduct of their employers.

Front 10

what is the practical effect of vicarious liability?

Back 10

It gives a pursuer someone worth suing.

Front 11

What is the effect of the Employers Liability (Compulsory Insurance) Act 1969?

Back 11

Where a victim is an employee, insurance is compulsory for an employer.

Front 12

Which act states that insurance is compulsory if a victim is an employee?

Back 12

Employers Liability (Compulsory Insurance) Act 1969

Front 13

From what does vicarious liability arise?

Back 13

Negligent, and intentional acts

Front 14

What was held in Morris v CW Martin & Sons 1966? [English authority]

Back 14

An employee stole an item; Employers were liable. This shows that liability may be vicarious for more than just negligence.

Front 15

What was held in Photo Production ltd v Securicor Transport ltd 1980?

Back 15

Employers were liable for their employee intentionally setting fire to a factory owned by the pursuers he was meant to be guarding.

Front 16

What cases show that vicarious liability may arise from intentional acts?

Back 16

1.Morris v CW Martin & Sons 1966

2.Photo Production ltd v Securicor Transport ltd 1980

Front 17

What was held in Taylor v Glasgow District Council 1997

Back 17

An employer need not gain a benefit in order for vicarious liability to arise.

Front 18

How is vicarious liability imposed on defenders?

Back 18

As joint and several liability between the employee and employer who are liable, though in practice the employer rarely enforces their claim on the employee.

Front 19

For whom are employers vicariously liable?

Back 19

Employees under a contract OF service (locatio operarum) but not independant contractors under a contract
FOR services (Locatio operis faciendi)

Front 20

What is the test given in Kirby v National Coal Board 1958

Back 20

1. If the employer authorised the particular act he will be liable.

2. If the employee performs a task he is authorised to do, but in a way the employer had not or would not authorise the employer is still liable as the act was in the scope of the employee's employment.

3. If the employee is employed only to do a particular work or clas of work and does something outside that work the employer will not be liable.

4. If the employee used his employee's time or tools for his own purposes, there will not be vicarious liability.

Front 21

What was held in Kirby v NCB 1958?

Back 21

An employee lit a match in a mine in order to light a cigarette. This resulted in an explosion. Smoking was not connected with the emploee's work so had acted outside the scope of his employment. There was no vicarious liability. He was 'off on a frolic of his own'.

Front 22

What was held in Century Insurance Co ltd v Northern Ireland Road Transport Board 1942?

Back 22

A driver of a fuel tanker lit a cigarette while draining petrol from his tanker, which ignited. The employer was vicariously liable as he was performing an authorised act in an unauthorised manner, fulfilling the second part of the Kirby test

Front 23

What was held in McLean v Remploy ltd 1994?

Back 23

Employers were not liable for a practical joke

Front 24

What was held in Harrison v Michelin Tyre Co ltd 1985

Back 24

Employers were held vicariously liable for a practical joke.

Front 25

What determined the different outcomes in McLean v Remploy ltd 1994 and Harrison v Michelin Tyre Co ltd 1985.

Back 25

Whether the practical joke was seen as in the scope of employment or not.

Front 26

What cases show employers may or may not be vicariously liable for practical jokes, depending on whether the action is seen as in the scope of employment.

Back 26

1.McLean v Remploy ltd 1994

2. Harrison v Michelin Tyre Co ltd 1985

Front 27

What was held in Rose v Plenty 1976

Back 27

A milkman hired a 13 year old assistant in breach of company policy. The milkman negligently drove his float over the boy injuring him. As the boy's presence was in pursuance of their business the eployers were vicariously liable.

Front 28

What was held in Angus v Glasgow Corporation 1977?

Back 28

A lorry driver took a short detour from his route to pick up his glasses from his home and collided with a care. As the dominant purpose of the journey was for the employer they were vicariously liable.

Front 29

What was held in RJ McLeod v South of Scotland Electricity Board 1982

Back 29

An employee had been authorised to take his work van straight home but went out of his way to drop another employee home and then visit his mother-in-law when he struck a footbridge being constructed. The original purpose of the journey had not been superseded so the employers were vicariously liable.

Front 30

What was held in Williams v Hemphill 1966

Back 30

A bus driver carrying a boy's brigade company from Benderlock to Glasgow was convinced to go to Dollar to help some girl guides when he negligently over turned the bus. As he was still transporting the boys, which was the purpose of the journey the employers were vicariously liable.

Front 31

What cases show that deviation will not excuse vicarious liability if the original authorised purpose of an action had not been supersceded?

Back 31

1.Angus v Glasgow Corporation 1977

2.RJ McLeod v South of Scotland Electricity Board 1982

3.Williams v Hemphill 1966

Front 32

What test is given by Lister v Hesley Hall ltd 2001?

Back 32

the sufficient connection test

Front 33

What does the sufficient connection test state, and in which case was it stated?

Back 33

Employers will be vicariously liable for the actions of their employees which are sufficiently connected to their employment for it to be fair and just to do so.Lister v Hesley Hall ltd 2001

Front 34

What was held in Bazley v Curly 1999

Back 34

An employee's sexual abuse of children in his care in a residential care home was sufficiently connected with his employment to allow vicarious liability.

Front 35

What was held in Jacodi v Griffiths 1999? [Canadian case]

Back 35

An employee of a children's club sexually abused two children, all apart from on one occasion, in his home. The fact that he had met them at his work was not enough to satisfy the sufficient connection test.

Front 36

What was held in Lister v Hesley Hall ltd 2001

Back 36

A warden of a school boarding house's abuse of children in his care was sufficiently connected to his employment for his employers to be vicariously liable.

Front 37

Which cases show that use of the sufficient connection test?

Back 37

1.Lister v Hesley Hall ltd 2001

2.Jacodi v Griffiths 1999

3.Bazley v Curly 1999

Front 38

What was held in Trottman v North Yorkshire County Council 1999

Back 38

A deputy headmaster's abuse of a child was found to be an independent act, wholly against the care he was meant to provide. The employers were not vicariously liable. This was over turned by Lister.

Front 39

What case overturned the decision in Trottman v North Yorkshire County Council 1999

Back 39

Lister v Hesley Hall ltd 2001

Front 40

which case has employed Lister in Scotland?

Back 40

M v Henderson 2007

Front 41

How will Scottish courts currently use the Lister test and the Kirby test?

Back 41

They will use the old Kirby test to inform whether there is a sufficient connection.

Front 42

Which case shows the current approach of scottish courts in using the tests from Lister and Kirby?

Back 42

Wilson v Exel UK ltd 2010

Front 43

What tests may be employed in determining whether a person is an employee or not for purposes of giving vicariously liability?

Back 43

1. The control test

2. The integration test

3. Whether the party runs a commercial risk

4. The intention of the parties

5. Whether payment is regular or for the individual 'job'

6.Whether employers national insurance payments are made

7. Whether the party makes their own tax arrangements, or tax is deducted through PAYE

8.

the way in which the contract may be terminated

9.how pension arrangements are made

Front 44

What was held in Short v J&W Henderson ltd 1946

Back 44

A docker was held to be an employee despite working arrangements very different form those which would normally be seen as employment

Front 45

What was held in Marshall v William Sharp & Sons ltd 1991

Back 45

A quarry manager died due to the negligence of an electrical contractor who was only employed at that site. Due to the control the employer had over him there was vicariously liability, even though he was an independent contractor.

Front 46

What case shows that an independent contractor's negligence may give vicarious liability if there is a large amount of control the employers have over them.

Back 46

Marshall v William Sharp & Sons ltd 1991

Front 47

What is Pro hac vice employment?

Back 47

When an employee is lent of hired out to another employer.

Front 48

What is the effect of establishing pro hac vice employment

Back 48

The borrower will be vicariously liable if there is control over what the employee does and how he does it.

Front 49

What was held in Sime v Sutcliffe Catering (Scotland) ltd 1990

Back 49

Outside catering contractor's negligence led to vicarious liability of the employer

Front 50

What was held in Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) ltd 1946

Back 50

The defender borrowed a worker and crane form the pursuer. He negligently injured another employee of the defender. Since the way he did his work was at his own discretion pro hac vice employment was no established and the pursuer was vicariously liable.