Essay
Vicarious liability Evaluation
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This is a vicarious liability evaluation question
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The tortious act must be committed by the employee in the course of employment. The traditionaltest is the Salmond test which states that an employee is acting in the course of employment if a
wrongful act is authorised by the employer but committed in an unlawful unauthorised manner, In
both Geoff and Ian’s situations the employer cannot be seen to have authorised either of their
activities.
Alternatively, the close connection test must be satisfied as outlined in the case of Lister
v Hesley Hall. If the wrongdoing is connected to the range of activities the employee is
contracted to undertake, then there is a sufficiently close connection to the employer to
regard this as 'acting in the course of employment. The courts have further developed
the law to look types of wrongdoing by the employee. The case of Hilton v Thomas
Burton stated that a person would be regarded as acting in the course of employment
where an employee is acting of a frolic' of their own, which means is doing something
which is outside their normal work area. In Goeff’s case it can be argued that his actions
in stopping off at a fast-food place did not occur in the course of employment. His detour
is likely to be treated as a frolic of her own, just an unauthorised break was treated as a
'frolic' in Hilton. Therefore, Geoff would be regarded as acting in the course of
employment for the negligent act of injuring Harry.
In the case of Mohamud v Morrisons the courts decided that the employees’ assault on a
customer was a sufficiently close connection to his role of serving customers at the
petrol A 0 1
station to be regarded as acting in the course of employment. Ian gets angry with Jimmy
and
hits him hard giving him a black eye. As Ian’s role is to escort care for students in the bus
and at the exhibition then it may be argued that his loss of temper has a sufficiently
close
connection to his role as to be regarded as acting in the course of his employment.
However,
TM may argue that he was acting outside his employment as his job role would not have
included any behaviour that would be regarded as threatening or criminal towards the
students and Jimmy. However, we are told that he often shouts at students who are noisy
and
this may have been an issue TM should have been aware of, particularly as he is doing
community service due to committing an offence. On balance TM are likely to be held
vicariously liable for Ian’s actions as the assault on Jimmy flows from his role of discipline
students when he takes them on the bus and to the school match.
In conclusion TM appears to be VL for the acts of Geoff, he is clearly an employee under
the economic reality test, he is employed as a teacher and was following instructions in
driving the bus with students in, to an academy’s event. This was in the course of
employment as
he decided to act on a 'frolic' in stopping at the fast-food place' rather than taking
students straight to
the event. Therefore, the tort of negligence against Harry was in the course of
employment
making TM VL for this tort. This means Harry can sue TM for negligence committed by
Geoff. If successful under The Civil Liability (Contribution) Act 1978 RC will be liable to
pay compensation to him under VL. The academy can recover the cost from Geoff’s
wages.
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