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Vicarious liability (Who is an employee? (Relationship akin to employment,…

- - - - "He who owns the assets and bears the risk is unlikely to be a servant"
        
        Three part test
        
        Remuneration in exchange for personal service and mutuality of obligations
        
        Personal service = employee required to fulfil duties personally
        
        Express and Echo Publications v Tanton (1999) - if entitled to send substitute to do the work it cannot be an employment relationship
        
        May not negate employment relationship if...
        
        2 more items...
        
        Mutuality of obligations = employer required to provide work and employee required to do it
        
        Control - more control exercised by employer, more likely it will be an employment relationship
        
        Consider who has control over tasks done, in which way they are performed and when and where work is completed
        
        All other contractual factors consistent with employment relationship
    - - Level of control #
      - Provision of tools and equipment
      - Tax/PAYE/national insurance
      - Salary
      - Sick pay
      - Bearing profit and loss
      - Integration within organisation
      - Control over hours
      - Right/ability to do other work
      - How parties describe relationship
  - - - Lord Philips - policy underlying vicarious liability "is to ensure, so far as it is fair, just and reasonable, that liability for a tortious wrong is borne by a defendant with the means to compensate the victim"
        
        Identified five key issues #
        
        Employer more likely to have means to compensate victim
        
        Tort committed as result of activity undertaken on employers' behalf
        
        Activity party of business activity of employer
        
        By allowing tortfeasor to carry on activity, employer created the risk
        
        To a greater or lesser control the tortfeasor will have been under the control of the employer
- - - - Benefits and burdens of employees
      - Deep pockets
        
        Employers' Liability (Compulsory Insurance) Act 1969 - all employers have to obtain compulsory insurance for their employees
      - Loss allocation
      - High standards
- - - - Battery
      - Assault
      - False imprisonment
      - Negligence
      - Libel
      - Slander
      - Identify the relevant tort and go through the structure of the tort
  - - - Is the tortfeasor an employee?
      - Is the defendant their employer?
        
        Contract of service vs contract for services - now in some cases may be an independent contractor though
    - - Each case decided on a fact by fact basis
      - Few of the authorities involve torts
      - Consider the year that the authorities were decided
  - - - Traditional approach - Salmand
        
        Was act expressly or impliedly authorised by employer, or...
        
        Incidental to the carrying out of the employee's proper duties, or...
        
        An unauthorised way of doing something authorised by the employer
        
        Examples - can still be used to establish a close connection
        
        Joel v Morrison (1834) - on a "frolic of his own"
        
        Smith v Stages (1989) - going about employers' business at material time (on highway) - generally outside scope when travelling to and from work though
        
        Bayley v Manchester, Sheffield and Lincolnshire Railway (1873) - carrying out duties in unauthorised manner
        
        Keppel Bus v Saab Bin Ahmad (1974) - argument not in relation to ticket fares
        
        Century Insurance v Northern Ireland Transport (1942) - doing something authorised in an unauthorised manner
        
        Daniels v Whetstone (1962) - employers liable for first assault inside club - not for second assault outside, which was seen as an act of personal revenge
        
        Harvey v RG O'Dell (1958) - reasonably expected act of employee
        
        Rose v Plenty (1976) - prohibited act done for employers' business, even those expressly prohibited - distinguished from Twine on this basis
        
        Beard v London Omnibus (1900) - bus conductor not authorised to drive bus - not incidental to his duties and not carrying out authorised act in an unauthorised manner
        
        Makanjuola v Commissioner of Police for the Metropolis (1992) - not in course of employment
        
        Storey v Ashton (1869) - not in course of employment - depends on extent of deviation, whether travelling in working time and purpose of journey
        
        Twine v Bean Express Ltd (1946) - hitch hiker was trespasser and employee not acting within scope of employment
      - Recent approach - close connection test - between tort and role
        
        Lister v Hesley Hall (2002) - Lord Steyn - "concentrate on the relative closeness between the nature of the employment and the particular tort"
        
        Tortfeasor was only in position to exploit children because of his role - on their premises during working hours - fair, just and reasonable
        
        Mattis v Pollock (2004) - stabbing culmination of incident that started at nightclub where tortfeasor worked - influenced by fact that club advocated violence by their vouncers
        
        JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012) - defendants placed abusers in pastoral role - policy considerations
        
        Orr and others v Institute of the Brothers of the Christian Schools (2012)
        
        Mohumud v Morrison (2016) - relied on Lister - "seamless episode" that started with act that was closely connected to duties - on premises in working hours - entrusted to deal with members of the public so just that employer should be responsible for abuse of trust
        
        Lord Toulson held closeness of connection is two-fold test
        
        What functions or "fields of activities" have been entrusted by the employer to the employee (what was the nature of his job)?
        
        Was there a sufficient connection between the position in which he was employed and his wrongful conduct to make it just for the employer to be held liable?
        
        Fletcher v Chancery Lane Supplies (2016) - impossible to known if tortfeasor crossing the road was sufficiently connected to his work
        
        Gravil v Carroll and Another (2008) - rugby player's control required him not to engage in fighting, but club ought to be liable for tort regarded as reasonably incidental risk to that type of business
    - - s191) Civil Liability (Contribution) Act 1978 - employer may be entitled to seek indemnity from employee where it is "just and equitable" to do so
      - Analogous common law remedy - "Lister Principle" - derived from Lister v Romford Ice and Cold Storage Co (1957)
    - - Generally responsible for own actions and should take proper precautions - employers generally have less control here - though courts have not always been consist in their approach
      - Rowe v Herman (1997)