vicarious liability
Vicarious liability is where a PERSON is RESPONSIBLE for the TORT OF ANOTHER
Usually the EMPLOYER is MORE LIKELY in a BETTER FINANCIAL POSITION and/or is covered by INSURANCE, so they will MORE LIKELY be the ones to BE SUED
WITHOUT VL, an injured claimant will be left WITHOUT ANY COMPENSATION
This ALLOWS an INJURED CLAIMANT to SUE the EMPLOYEE and the EMPLOYER and discover which is better placed to pay compensation
Employers are usually vicariously liable when:
The person committing the tort is an employee
The tort occurs in the course of employment
An employee commits an unintentional tort
The parties in vicarious liability are:
Defendant - person held liable for the tort (employer)
Claimant - victim who suffers harm
Tortfeasor - commits the tort and causes harm (employee)
A COMMITS A TORT INJURING B
BUT
IS A EMPLOYED BY C?
+
IS A ACTING IN THE COURSEOF THEIR EMPLOYMENT?
IF YES TO BOTH, B CAN SUE C WHO IS VICARIOUSLY LIABLE FOR A'S ACTIONS AT WORK
CONTROL TEST
ECONOMIC REALITY TEST
INTEGRATION TEST
Based on the judgement of McArdi J in Performing Rights Society v Mitchell Booker (1924):
Developed by Lord Dennings in Stevenson v McDonald (1969):
Developed by McKenna J in Ready Mixed Concrete v Minister of Pensions (1968):
Did the defendant have the power to control what the tortfeasor does and how it should be done?
“Nature and degree of detailed control” of the employer over the employee - did the defendant have the power to control what the employee does and how it should be done?
Lord Thankerton in Short v Henderson (1946) - Key features which would show that the employer had control over the employe, including:
The employer doesn't actually control the employee - control the consequences for the behaviour, exercises a psychological control rather than a physical control - artificial
Features of “control” are power to select, to decide working methods or practices, to suspend or fire and to pay a salary (as opposed to a fee)
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The power to select the employee (did they hire them, did they interview them?)
The right to control the method of working (did they train them to work this way?)
The right to suspend and dismiss the employee (can they fire them?)
The payment of wages (do they pay them wages/salaries?)
Was the tortfeasor fully “integrated” into the defendant’s business?
A worker will be an employee if their work is fully integrated in the business
If a person’s work is only an accessory to the business, that person is not an employee
Did the tortfeasor agree to provide work or skill in return for a wage?
Are there any factors which suggest any different relationship between the tortfeasor and defendant?
Did the tortfeasor expressly or impliedly accept that the work would be subject to the defendant’s control?
Additional factors added since 1968:
How does the tortfeasor describe the relationship?
Does the tortfeasor own his own tools and equipment?
How is the tortfeasor paid/what is his tax and NI status?
The employment test - new and official test
In order for the employer to be liable, the employee must commit the tort ‘in the course of employment’.
The employer can be liable for any tort committed by the employee:
Acting against orders
Carrying out a duty in a forbidden way - Limpus v London General Omnibus (1862):
Employer instructed its bus drivers not to race other company’s bus drivers when collecting passengers
One driver caused an accident when racing
The employer was liable to the injured claimant as the driver was doing what he was employed to do - even against orders
Employee committing a negligent act
Doing something forbidden whilst carrying out a duty - Rose v Plenty (1976):
A dairy instructed its milkman not to use child helpers on their milk rounds
One milkman did use a boy to help him, but the boy boy was injured on the round due to the milkman’s negligent driving of the electric milk float
The dairy was vicariously liable for the milkman’s negligent driving as it was suggested that the dairy benefited from the work done by the boy
Carrying out a duty negligently - Century Insurance v NI Transport Board (1942):
A petrol tanker was delivering petrol to a garage when he lit a cigarette and threw a match on the ground
This caused an explosion, which destroyed several cars and damaged some nearby houses
The driver’s employer was vicariously liable as the driver was doing his job, even though negligently
The employer was not acting in the course of employment - causes injury or damage to another while doing something outside the area or time of their work - acting on a ‘frolic’ of one’s own
Tort committed outside of working hours - Hilton v Thomas Burton (1961):
Some employees were working on a site away from their workplace
They took an unauthorised break and drove their firm’s van to a cafe for tea, but had an accident on their way back to the site
One of the men was killed and his widow sued the employer
It as decided the employers were not vicariously liable as the men were on an unauthorised ‘frolic’ of their own and not acting in the course of their employment
Going beyond instructions whilst carrying out a duty - Bayley v MSL Railway Co (1873)
Railway employee assaults a passenger by pulling his off a train
The porter was supposed to stop people from getting on the wrong train, but wasn’t supposed to be so violent
Unauthorised lifts - Twine v Beans Express (1946):
The claimant’s husband was killed through the negligence of a driver who had been forbidden to give lifts
This instruction was supported by notices on the side of the van stating who could be carried in it
The employers were not vicariously liable, as the driver was doing an unauthorised act and the employers were gaining no benefit from it
If the employee is acting against the employer’s orders, and the act was not part of his job, then the employer will not be liable
Forbidden act - Beard v London General Omnibus (1900):
A bus conductor, employed to collect fares, drove a bus without the authority of his employer, injuring the claimant
The employer was not liable as the conductor was doing something outside the course of his employment
Acts that have nothing to do with employment - Makanjuola v Metropolitan Police Commissioner (1992)
Employee coerced an immigrant into having sex with him
The police officer wasn’t doing anything related at all to his duties - outside the course of his employment
The employer was therefore not liable
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Trotman v North Yorkshire (1999) - (headteacher case) employer not held vicariously liable (unauthorised act carried out in an unauthorised manner)
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Bazley v Curry - Canadian supreme court - new way of thinking
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Lister v Hesley Hall (2001) - close connection test - were T’s acts closely connected to T’s employment by D?
Authorised torts
This will be the case where the employer actually instructs the employee to do something that amounts to a tort.
E.g a transport firm tells one of its drivers to use an unsafe or overloaded vehicle
Alternatively, the authorisation might be implied - Poland v Parr (1927)
Employee assaults a child who was stealing from his employer’s lorry
NB - although this case is seen as implied authorisation it might better be seen as an authorisation act carried out in an unauthorised manner. → employer was held vicariously liable → should not be held liable for something that the tortfeasor does in an unauthorised manner → however, he was acting under the employers instructions to keep the goods in the lorry safe from thieves
If an employee commits a criminal act at work, the employer will be liable if there is a ‘close connection’ between the crime and what the employee was employed to do
Modern development - Lister v Hesley Hall (2001)
The warden of a school for children with emotional difficulties was convicted of sexually assaulting some of the children
The HoL decided that there was a close connection between his job and what he did, as the assaults were carried out on school premises
As a result, the warden’s employer was liable for his actions
Since this decision was made, a number of cases have refined this principle:
Catholic Child Welfare Society v Institute of the brothers (2012):
“Was there a sufficiently close connection between the relationship between D and T [which usually is, but doesn’t have to be employed] and acts which T committed?”
Was there a relationship between the Institute and its members akin to an employer and employee relationship?
The relationship between individual brothers and the Institute was actually closer that a relationship between the employer and employee.
Was the sexual abuse connected to that relationship in such a way as to give rise to vicarious liability?
Cox v Ministry of Justice (2016)
Mohamud v Morrisons Supermarkets (2016)
Dubai Aluminum v Salaam (2003)
Mattis v Pollock (2003)
Mrs cox works in a prison kitchen - needed a big bag of rice - couldn’t get it down
Some prisoners were also assigned work in the kitchen (trustees)
Asked a prisoner to take it down - accidentally dropped the bag on her in attempt to get the bag down (negligent/careless)
Couldn’t sue the prisoner - could sue the MoJ
The Supreme Court claimed that Lord Phillips was correct (sufficiently close relationship and common purpose is correct) - “Harm is wrongfully done by an individual who carries on activities as an integral part of the business activities of the defendant or for its benefit.” (‘business' need not be a commercial activity)
Decided that the employee was acting within the field of his employment - there was a close connection between what he did and what he was required to do - employers were vicariously liable
Employee at a petrol station assaulted a customer, causing his serious injuries
The Supreme Court considered that the job that the employee was doing, and whether there was a sufficient connection between that job and the assault on the customer
It decided that as the employee was acting within the field of his employment - the assault took place at the workplace and within working hours - there was a was a close connection between what he did and what he was required to do
As a result, the employers were vicariously liable for his actions
An employee committed acts of fraud and theft
The torts of deceit and trespass to property
The employee had chosen to fulfil his duties in a dishonest fashion but there was a close connection so the employer was liable
The bouncer’s behaviour was closely connected to his duties
Using a knife was criminal and unauthorised but could be seen as closely connected to his usual duties to manhandle customers