Swimmer
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Ive been reading my notes, reading my book and i still dont understand it, can anyone here explain main points if not all with case laws please, or if someone has revision notes on it please.
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shadowsintherain
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Yep, you're quite right, it's not an easy subject at all.

Here's a structure that might help you understand it a bit better answering problem questions.

1. Has a tort been committed? (seems obvious but without a tort there can be no liability)

2. Is the person who committed the tort an employee?
Quite a few tests have been put forward for this, so you are going to have to look at a variety of factors. Consider the differences between independent contractors and employees (ie. employees are in constant employment etc.) and decide in which category you think the employer best fits. Of particular note (but none of these are conclusive, and require other considerations): the "control test", the "integration test" (see Ready Mixed Concrete v Minister of Pensions and National Insurance), the independence test (Market Investigations v Minister of Social Security).

3. Who is his employer?
This concerns the problem of "borrowed" employees. For example you might rent a crane, and the operator comes with it. Who employes the operator, the company hiring the crane or the company letting it out? Again, this depends on the circumstances. But look at whether the employer has effective control over the employee (Hawley v Luminar Leisure) - the courts have interpreted this very widely.

4. Is there a sufficient connection between the tort and employment?
(a) Most books will say that the Salmond test is deprecated. This test said that an employer is liable where the employee is acting in the course of his employment. This is not used by the courts but don't throw it away straight away.
(b) The commonplace principles are that an employer is not liable simply for giving the employee the chance to commit a tort (N v CC of Merseyside).
(c) The close connection test is very important - was the employee's act closely connected to his employment (Lister v Hesley Hall)? This is why you shouldn't throw away the Salmond test - it is remarkably similar.
(d) Employers may still be liable for an employee's act even though it was expressly prohibited (Rose v Plenty - milkman banned from bringing children along on his milk round but did so anyway; still in the course of employment since child was assisting him). This is mainly to focus on employees doing their jobs badly (Limpus v London General Omnibus).

---

That's a very brief whistlestop tour but I hope it helps you. Other things you need to consider find themselves particularly in the last section, since you might want to consider deviations of drivers, and the canadian cases (Bazley v Curry and Jacobi v Griffiths) on which Lister v Hesley Hall was based.

You might get confused since sometimes books mix up vicarious liability with non-delegable duties. They are different things. Non-delegable duties fits under the category of duty of care, where an employer might delegate the performance for a specific duty but not the liability of it.
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Swimmer
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Ty mate, becouse im A2 student, u reckon this would be enough?
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chris1089
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Is this enough for an A2 student?
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shadowsintherain
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(Original post by Swimmer)
Ty mate, becouse im A2 student, u reckon this would be enough?
I didn't do A2, but for an undergraduate it is not quite enough. Some would disagree with me though. It completely depends on your syllabus; I'm in no position to answer this I'm afraid!
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Swimmer
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Cheers mate.
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Iamshevy
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(Original post by shadowsintherain)
Yep, you're quite right, it's not an easy subject at all.

Here's a structure that might help you understand it a bit better answering problem questions.

1. Has a tort been committed? (seems obvious but without a tort there can be no liability)

2. Is the person who committed the tort an employee?
Quite a few tests have been put forward for this, so you are going to have to look at a variety of factors. Consider the differences between independent contractors and employees (ie. employees are in constant employment etc.) and decide in which category you think the employer best fits. Of particular note (but none of these are conclusive, and require other considerations): the "control test", the "integration test" (see Ready Mixed Concrete v Minister of Pensions and National Insurance), the independence test (Market Investigations v Minister of Social Security).

3. Who is his employer?
This concerns the problem of "borrowed" employees. For example you might rent a crane, and the operator comes with it. Who employes the operator, the company hiring the crane or the company letting it out? Again, this depends on the circumstances. But look at whether the employer has effective control over the employee (Hawley v Luminar Leisure) - the courts have interpreted this very widely.

4. Is there a sufficient connection between the tort and employment?
(a) Most books will say that the Salmond test is deprecated. This test said that an employer is liable where the employee is acting in the course of his employment. This is not used by the courts but don't throw it away straight away.
(b) The commonplace principles are that an employer is not liable simply for giving the employee the chance to commit a tort (N v CC of Merseyside).
(c) The close connection test is very important - was the employee's act closely connected to his employment (Lister v Hesley Hall)? This is why you shouldn't throw away the Salmond test - it is remarkably similar.
(d) Employers may still be liable for an employee's act even though it was expressly prohibited (Rose v Plenty - milkman banned from bringing children along on his milk round but did so anyway; still in the course of employment since child was assisting him). This is mainly to focus on employees doing their jobs badly (Limpus v London General Omnibus).

---

That's a very brief whistlestop tour but I hope it helps you. Other things you need to consider find themselves particularly in the last section, since you might want to consider deviations of drivers, and the canadian cases (Bazley v Curry and Jacobi v Griffiths) on which Lister v Hesley Hall was based.

You might get confused since sometimes books mix up vicarious liability with non-delegable duties. They are different things. Non-delegable duties fits under the category of duty of care, where an employer might delegate the performance for a specific duty but not the liability of it.
Hey ! I was in need of this. It's a clear and simple structure. Thanks.
Thanks
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