Vicarious liability

Basic principles

Vicarious liability is not a tort - is merely a determination of who is potentially liable

Vicarious liability is strict

Different terminology

Primary = direct liability = employers' liability

Secondary = vicarious liablity

An employer can be sued both directly and vicarously for the same event

Background and justification

Origins in C18th

Justification

Benefits and burdens of employees

Deep pockets

Loss allocation

High standards

Structure for a vicarious liability claim

  1. Has a tort been committed?
  1. By an employee of the defendant?
  1. Was the tort committed in the course of employment?

Torts on the syllabus that can be committed vicariously

Battery

Assault

False imprisonment

Negligence

Libel

Slander

Identify the relevant tort and go through the structure of the tort

This stage consists of two parts

  1. Is the tortfeasor an employee?
  1. Is the defendant their employer?

General guidance

Each case decided on a fact by fact basis

Few of the authorities involve torts

Consider the year that the authorities were decided

Who is an employee?

Control test

Yewens v Noakes (1880)

Argent v Minister for Social Security (1968) - actor taught part time in school and did not have to teach if offered acting job - self-employed #

Integration test

Whittaker v Minister of Pensions (1967) #

Mutuality of obligations #

O'Kelly v Trusthouse Forte (1984) - where zero hours contract it is unlikely to be deemed an employment relationship

Labelling - label contract gives to the parties relevant but not conclusive #

Massey v Crown Life (1976) - court emphasised need to ensure consistency between contractual labels and reality of relationship

Multiple factors approach (economic reality test) - favoured approach

Ready Mix Concrete v Minister of Pensions (1968) - drove a concrete mixer - responsible for hiring, insuring and running lorry and paid by company on basis of mileage - held to be an independent contract

Warner Holidays v Secretary of State for Social Services (1983) - developed approach in ready Mixed Concrete - McNeil J set out non-exhaustive list of points court should consider in determining reality

Quashie v Stringfellows (2012)

Relationship akin to employment

JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012) - vicarious liability extended to relationship 'akin to employment' - relationship so close in character that just and fair to hold liable

Orr and Others v Institute of the Brothers of the Christian Schools (2012) - vows held to operate in much the same way as a contract

Cox v Ministry of Justice (2016) - Lord Reed focused on criteria 2-4 to find prison service vicariously liable for torts of prisoner working in catering section - was carrying out activity integral to defendant's business - created risk

NA (Armes) v Nottinghamshire County Council (2017) - only in lecture - used Institute of Brothers criteria to find relationship akin to employment

Where there is a choice of employer/lending situation

Mersey Docks v Coggins (1947)n - general rule - employer will remain vicariously liable and will be difficult for them to rebut this presumption - a lot of emphasis placed on level of control - here employer retained power of dismissal

Viasystems v Thermal Transfer (2005) - in certain circumstances, two parties can be vicariously liable - dual liability, where employer and hirer have equal measure of control - does not affect general rule

Hawley v Luminar (2006) - recent application of general rule

Why does it matter?

Change in focus due to policy concerns

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

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"

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

Fletcher v Chancery Lane Supplies (2016) - impossible to known if tortfeasor crossing the road was sufficiently connected to his work

Guidance

Don't expect any consistency when trying to make sense of the decisions in this area

Always explain how heavily this area of law is influenced by policy

Stress that each case is decided on its own facts - use existing cases to compare and distinguish

Always consider the year that the authority was decided, giving sufficient emphasis to the more recent approaches used by judges

Try to reach a conclusion based on whether you think it is fair, just and reasonable to hold the defendant vicariously liable on the specific facts

Employers' Liability (Compulsory Insurance) Act 1969 - all employers have to obtain compulsory insurance for their employees

Contract of service vs contract for services - now in some cases may be an independent contractor though

"He who owns the assets and bears the risk is unlikely to be a servant"

Three part test

  1. 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...

Autoclenz Ltd v Belcher (2011) - if written contract includes a substitution clause but this doesn't reflect the reality of the arrangement - written labels are the starting point but focus should be on actual legal obligations and true nature of agreement

McFarlane v Glasgow City Council (2001) - employer controls who is selected as a substitute

Mutuality of obligations = employer required to provide work and employee required to do it

  1. 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

  1. All other contractual factors consistent with employment relationship
  1. Level of control #
  1. Provision of tools and equipment
  1. Tax/PAYE/national insurance
  1. Salary
  1. Sick pay
  1. Bearing profit and loss
  1. Integration within organisation
  1. Control over hours
  1. Right/ability to do other work
  1. 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 #

  1. Employer more likely to have means to compensate victim
  1. Tort committed as result of activity undertaken on employers' behalf
  1. Activity party of business activity of employer
  1. By allowing tortfeasor to carry on activity, employer created the risk
  1. To a greater or lesser control the tortfeasor will have been under the control of the employer

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

Tortfeasor was only in position to exploit children because of his role - on their premises during working hours - fair, just and reasonable

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

Lord Toulson held closeness of connection is two-fold test

  1. What functions or "fields of activities" have been entrusted by the employer to the employee (what was the nature of his job)?
  1. 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?

Employers' Indemnity/Contribution

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)

Independent contractors - "Personal Duty Theory"

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)