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What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Vicarious liability claims - overviewIs an employer liable for an employee's negligent actions?
An employer will be liable for an employee's negligent actions if they were committed in the course of the employee's employment.
The claimant must therefore prove:
that the act of negligence was caused by the employee
that the employee was acting in the course of their employment, and
that the negligent actions of the employee caused the claimant's injury
Who is an employee?
An employer is only liable for the negligent actions of an employee and not those of an independent contractor. As a general rule an employee sells labour while an independent contractor sells an end product. The position is, however, sometimes unclear and while there is no definitive criteria the court can apply one of three different tests to determine whether a third party is an employee:
the control test - the court will consider the level of control which the third party had over the nature and method of their work
the contract of service/contract for services test - the court will consider whether the work undertaken by the third party is done as part of the business or whether the work done is integrated and an accessory to the business
the economic reality test - the court will consider whether the third party:
undertakes the work in return for payment of a wage or remuneration from the employer
agrees that the work will be completed under the control of the employer
the overall circumstances are consistent with an employer/employee contractual relationship
If the claimant is successful in proving that an employee's actions were negligent, the employer may be able to obtain an indemnity for any damages paid to the claimant from the employee, either at common law or under the Civil Liability (Contribution) Act 1978.
Was the employee acting in the course of their employment?
Evidence of any instructions given to the employee by the employer must be obtained to see whether the employee was acting in the course of their employment. The court will then determine whether the employee undertook an:
authorised act - an employer will be held vicariously liable for an employee's actions when that employee is found to have undertaken an authorised act.
authorised act in unauthorised way - as a general rule an employer will be held vicariously liable for an employee's actions if that employee performed an authorised act in an unauthorised way. An employer will be held liable when an employee undertakes an authorised task to a poor standard or in a dangerous manner.
expressly prohibited act - the defendant may be able to advance a defence if they can demonstrate that the negligent acts of the employee were not sufficiently connected to the authorised act. An analysis of the precise nature of the employee's duties and any instructions given to the employee by the defendant is therefore required. In assessing liability the court will consider whether any prohibitions given by the employer to the employee related to the manner in which the employee undertakes the task or the scope of their tasks.
unlawful act - the court adopts a 'closeness of connection' test when assessing whether an employer will be held vicariously liable for an employee's unlawful act, ie whether it was sufficiently linked to the task they were supposed to be carrying out.
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