(1a) Vicarious Liability

(1a) Vicarious Liability - Vicarious liability is imposed...

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Vicarious liability is imposed as independent of culpability, where the employer is not at fault and yet held to strict liability for the tortuous act of an employee. X can sue Y for Z’s negligence/tortuous act if X can show that Y is vicariously liable for Z’s act by proving that: (a) tort committed by Z; (b) who is an employee of Y and (c) that Z was acting in the course of employment. (a) tort committed by Z Z has been negligent in _____________________. (Use other PFs.) He may use defence ABC…. . (b) Z is an employee of Y X has to show that Z is an employee of Y; that Z is under a contract OF service to Y as opposed to an independent contractor who is under a contract FOR service to Y. The intention of Y when hiring Z as reflected in the contract will not greatly influence the court in deciding whether Z is an employee or independent contractor because for policy reasons the court will not look at Z’s employment status as labelled in the contract . Policy reasons being that employers will label all their workers as employees in the contract irregardless of whether they are independent contractors to escape potential lawsuits. The court in deciding whether Z is an employee will look into various criteria: (1) control test, (2) integration test and (3) other factors. (1) Control test X only needs to show that Z was under the SCOPE of control of Y. Zujis v Wirth Bros (1955 ). The scope of duty may be construed broadly and is concerned with whether Y had a right to control and not necessarily whether Y exercised that right. Because Z was __________________________, therefore he is more likely to be a _______. (2) Integration test X needs to show that Z was an integral part of the business; Z is part and parcel of the business and not merely an accessory to the business. Because Z was _____________, it is likely that he is integral to the business; without _____ there would be no business! Kureoka v CPF Board Although Z was working part-time at ________, it does not preclude the court from holding that Z was an employee of Y notwithstanding the fact that Z had more than one employer. Lee Ting San v Chung Chi-Keung [1990] PC (3) Other factors The local court will also look to various other factors which would influence the court’s decision in ascertaining whether Z is indeed an employee. Because Z is - control * - profit & loss -> wont bear profit & loss if an employee - mode of remuneration -> paid salary (employee); lump sum (indep.) - provision & maintenance of equipment -> employer provides the equipment (employee); provide yourself (indep.) - obligation to work -> needs to turn up certain hours etc. (employee); can sub-contract, free to disseminate work (indep.) - hours of work -> - provision of holidays - deduction of income tax -> - delegation of work by worker -> if worker employs/ gets some1 to do work (indep) - independent exercise of skill & judgment (careful!! see TESTS a.) - intention of parties (not usually looked at by cts)
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This note was uploaded on 02/07/2012 for the course LGST 101 taught by Professor Hsu during the Spring '11 term at Singapore Management.

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(1a) Vicarious Liability - Vicarious liability is imposed...

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