Vicarious liability

Basics

Consideration to impose liability

1. Course of employment

2. Connection between tort committed and the employment

3. Liability of employer in the course of employment

  • Even while performing acts of the class that is authorised/employed to do, IF he clearly departs from the scope of his employment, his master WILL NOT be liable for his wrongful acts
  • An employer is only liable for torts that an employee commits in the course of employment
  • As long as the tort is committed when the employee was doing his job, the employer = liable
  • The problems arise when the employee does his job in a unauthorised manner or in a way expressly forbidden by the employer

Types

Journeys

Prohibited Acts

What is it

  • An employer can be liable for acts or omissions of its employees, provided it can be shown that it took place in the course of their employment
  • So employers are acted through their employees and can be deemed accountable for their actions, even though there is no personal fault on the employer

Why is vicarious liability imposed?

  1. Employers have "deeper pockets" than employees, where employees don't have enough resources to pay for the injury
  2. By hiring employees employers creates risks of harm to 3rd parties by hiring them. The employer should accept all risks that comes with hiring them
  3. Gives an incentive to employers to exercise care in selection of training + supervision of all employers, instills social responsibility

Employee

Independent contractor

  • Employee is employed under a contract of service
  • The employer will be liable for the torts of his/her employee rather than an independent contractor

Tests for employee status:

  • There is many used because no single test can cover the full range of work situations.
  • Instead courts look at the facts of the case, along with the level and control

1. Control test:

  1. To what extent does a person have autonomy in terms of how he does the job
  2. Can the employer tell the employee what to do? Is the employee under control of the employer
    (Whether the master had the right to control what was done and the way in which it was done)
  • Test is only useful in cases of borrowed owners

Determined in Yewens v Noakest (1880)

Hawley v Luminar Leisure plc (2005):

  • Facts: The nightclub owner was held to be in control and therefore vicariously liable for bouncers actually employed by a security firm


  • Why? The owner gave the men detailed instructions on how to do the job

2. Economic Integration Test:

  • To what extent is the employee's work integrated into the business
  • Contract OF service: Employee's work is done as an integral part of the business
  • Contract FOR service: The work is not integrated into the business but merely an accessory to it

3. Commercial Risk Test:

  1. Control of the employer
  2. Ownership of the tools
  3. There's a chance of profits
  4. There is a risk of loss

Determined in Stevenson, Jordan & Harrison v. MacDonald & Evans (1952)

Per Montreal Locomotive Works v Montreal and A-G Canada (1947)

Mercy Docks and Harbour Board v Coggins (1947):

  • To ask who is entitled to tell the employee the way he must do the work upon which he is ordered/engaged to do AND
  • Who is entitled to give the orders as to how the works should be done

One is not vicariously liable for torts of independent contractors, but there's very little exceptions (non-delegable duties):

  • Dangerous activities
  • Injuries at work
  • Highway incidences
  • Car owners

Contracts for Service:

  • Employer-independent contractor
  • Employer not liable for acts of ID
    Lump sum methods of payment

Criteria to succeed in a claim:
The claimant must prove that:

  1. The employee committed a tort
  2. The existence of an employer/employee relationship
    The employee acted in the course of his employment when commiting the tort in question

Determined in Kooragang Investments v. Richardson & Wrench (1981)

Salmond's test:

  • Tortious acts are done in the course of employment if they are:
  1. wrongful acts actually authorised by the employer, or
  2. wrongful and unauthorised ways of doing acts authorised by the employer

Employer will be vicariously liable for an employee's tort when:


  1. The employer carried out an authorised act in a careless/negligent manner
  2. The employee carried out an authorised act in an unauthorised manner
  3. The employee carried out the act that is expressly forbidden by the employer but has benefited the employer

General Engineering Services v. Kingston & St. Andrews Corp (1988):

  • Facts: Firefighters engaged in an industrial dispute for payments claims conducted a "go slow". Claimants property caught fire and it took them 17 minutes instead of the normal 3 minutes to arrive
  • Held: Local authority as employer, not liable as the strike is repudiation of the contract of the contract employment (the strike is not part of the contract)

Mohd Yeanikutty v Far East Truck Inc Manufacturing (Pte) Ltd (1984):

  • Facts: Claimant is a mechanic at the defendant's workshop. C with another worker went to repair a machine at a lift factory. Due to their own negligence, C's hand was crushed. The defendant said that C was to blame for his own injury and had disobeyed instructions.
  • Held: C was found to be contributory negligent. But since the other worker is partly liable for the negligence, the defendant as his employer = vicariously liable for the same negligence

Rose v Plenty (1976):

  • Facts: The defendant's employee is a milkman who was prohibited from ferrying kids during duty work. The employee still hired a 13 year-old to assist him on his duty. The child was injured and sued the employer.
  • Held: It was in the course of employment as there was benefit to the employer. DOC was owed to the injured child

Joel v Morison (1834):

  • "...if he was going on a "frolic of his own" without being at all on his master's business, the master won't be liable".

Intentional Acts

Close connection test:

  • What was the nature of his job/in everyday language
  • Whether there is sufficient connection between the position in which he was employed and his wrongful conduct to make it right for employer to be held liable based on social justice

Lister v Hesley Hall (2002):

  • Facts: Employer owned a school for boys with behavioral difficulties who were sent to the school by local authority. The warden in the school sexually abused the boys.
  • Held: HoL held that the warden's act was deemed to be so closely connected with his employment that it would be fair and just to hold the employers vicariously liable

Maga v The Trustees of the Birmingham Archdiocese (2010):

  • Facts: Claims arose from alleged sexual abuse of the claimant whilst he was a young boy by an assistant priest. Claim was dismissed at the Lower Court
  • Held: CA held the Church to be vicariously liable. According to test laid in Lister, the priest's abuse was closely connected to his employment "it would be fair and just to hold the church vicariously liable"

Various Claimants v Catholic Child Welfare Society (2012):

  • Facts: Former children at a children's home sought damages for sexual and physical abuse by a priest. The home was run by a Christian association.

  • The case extended the law on vicarious liability (liability extends beyond the strict extent of employee's duties and can include illegal activity and such liability can be shared)

Mr. A M Mohamud v WM Morrison Supermarket plc (2016): Mr Khan is an employee where his job is to see whether the petrol pumps were in good order to serve customers. Mr Mohamud received racial abuse + physical assault by Mr Khan and was told to never come back. Issue was whether there is sufficient connection between Mr Khan's employment and his conduct to make defendant vicariously responsible,


  • Held: Interaction as a client-facing employee almost inevitably fall within the scope of their duties and be in connection with the business where they are employed for

Close connection test part 2:

  1. What functions or "field of activities" have been entrusted by the employer to the employee (question should be addressed broadly) and
  2. Is there sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable for social justice

The General Rule:

  • A person who employs an independent contractor is not usually responsible for any tortious acts committed by the contractor


  • BUT liability can be imposed on the person who employed the independent contractor
  1. If he breaches DOC owed to the claimant e.g. the person has not checked that the independent contractor is competent to undertake the work
  2. Breach of DOC can occur if duty cannot be assigned to another -- aka "non-delegable" (falls under the exception)

Dangerous activities:

  • Acts commissioned by an employer that are so hazardous in their character that laws thought it proper to impose direct obligation on the employer to see that care is taken

Biffa Waste Services v Maschinenfabrik Ernst Hese Gmbh (2009):

  • Facts: D contracted to build a plant for the claimant. Plant was damaged by a fire caused by the defendant's sub-contractor. Defendant appealed against finding that it was responsible for the sub-contractor's failure. The judge found that defendant had imposed sufficient control over the way the task had been handled to be considered responsible


  • Held: Principle that made employer liable for the negligence of the sub-contractor engaged to carry out extra hazardous work was unsatisfactory and should be applied as narrowly as possible. (must only apply when the operations concerned would be hazardous whatever precautions were taken)

Lee Kee v Gui See & Anor (1972):

  • Facts: Defendant were liable for negligence of their sub-contractor who set fire to some unwanted branches. The fires were left unattended so it spread and destroyed property of the Claimant.


  • Held: If a man lights a fire, he must take reasonable precautions to prevent fire from spreading. This duty is absolute and non-delegable = irrelevant that performance of this duty was given to 3rd party whose negligence subsequently causes the damage.

Highway incidences:

  • Concerns dangers created in a highway where employer commissions work to be done near a highway. If DOC is not taken, injury to passer-by may occur

Tarry v Ashton (1876):

  • Facts: Claimant was injured when a suspended lamp fell on him. Defendant sought to excuse himself by saying that he employed a sub-contractor to put the lamp into good repair and that the sub-contractor should be liable instead


  • Held: It is the case where the employer was under a positive and continuing duty to see that the lamp was kept in repair. The duty was placed on the employer before the sub-contractor had come and gone. Such a duty cannot be delegated = employer liable

Injuries at work:

  • Some duties relating to health & safety of employees are personal to the employer and cannot be delegated

McDermid v. Nash Dredging ETC. Co. (1987):

  • Facts: Claimant was employed by defendant where he was assigned to go work on another tug owned by a Dutch company under control of a Dutch Captain. As a result negligence of the tug master who was not an employee of defendant, claimant suffered injuries.


  • Held: Defendant denied responsibility on the basis that they were no vicariously liable for the conduct of someone else's employee

Car owners:

  • Car owners may be held vicariously liable for negligent damage caused by another driving his car if:
  1. The driver was the agent/servant of the owner or
  2. If it can be established that the vehicle was used for the owner's benefit

Morgan v Launchbury (1973):

  • Held: HoL affirmed that if the vehicle is driven by the owner's agent and the user is driving as the owner's agent for the owner's purposes, the owner = liable