The term vicarious liability means that one person takes the place of another as regards liability. Although the matter also arises in relation to principal and agent and partnership, the most important and commonest example of vicarious liability is that an employer is liable for the torts committed by an employee who is acting in the course of his employment, but not for those of an independent contractor.
First it is important to distinguish who is an employer and who is an employee, simply put it is the person who has the right to hire and fire who is considered to be the employer. The only difficulties that may arise are;
a) where an employee is loaned out by his original employer to a third party
b) Here the onus lies on the original employer to rebut the presumption that he, and not the third party, remains the employer.
c) This can be done by showing that the third party had, at the relevant moment, the right to control the way in which the work was done: Mersey Docks & Harbour Board v Coggins & Griffith .
A number of tests have been used to attempt to draw a distinction. Firstly the control test was used by the courts, Yewens v Noakes . If the employer retained control over the work and told a person how to do it, then that person was an employee.
Problems with this simple test started as employees became more skilful which led to the courts to search for alternatives. One suggestion was the business integration test put forward by Lord Denning, Stevenson, Jordan and Harrison Ltd v McDonald and Evans . A person would be an employee if their work was an integral part of the business. An independent contractor would work for the...