Vicarious Liability

Front 1

In what way is the principle of vicarious liability at odds with the general aims of tort law?

Back 1

- Goes against 'fault principle' by allowing you to sure someone other that the tortfeasor (employer/partnership/agency)

- Principle of corrective justice reliant on liability being imposed on wrongdoer

Front 2

Claimants v Catholic Child Welfare Society

Facts: Former children’s homes residents sought damagesfor sexual & physical abuse. Court heard arguments as to the vicariousliability of the Society for abuse caused by parish priest visiting theschool. CA had found some defendants (school management trust)not vicariously liable.

Held: It was fair, just & reasonable for defendants toshare liability. Control no longer held crucial touchstone of claims, albeit important

Back 2

The law of vicariousliability extended beyond strict extent of employee's duties and could include illegal activity.

Lord Philips attempted to justify vicarious liability on basis that it:

- Allocates economic benefits and risks ('Enterprise liability')

- Seeks compensation from 'deeper pockets' (more money/insurance)

- Distribute loss equitably (liability insurance/higher prices)

- Encourages good working practices (incentive to keep up standards)

Front 3

Does Robert Stevens manage to justify the implications of vicarious liability?

Back 3

No. Explains that it is an instrument for attributing conduct, which companies do through their employees, but does little to justify the necessity of what he is describing

Front 4

Elements of a successful claim in various liability? (3 conditions)

Back 4

1. Must be an employer-employee relationship

- act committed by employee, determined by economic reality test

2. Employee must have committed a tort

3. Tort must have been committed while the employee was acting in the course of employment

- Test for such developed through case law

Front 5

Market Investigations Ltd v Social Security

Facts: Mrs Irving occasionally did market questionnaires. Dispute between the business for whom she did the surveys, Market Investigations, and the Minister for Social Security over whether National Insurance contributions should have been made on her behalf, depending on whether she was an employee.

Held: Different tests can be combined to decide if individual is self-employed, one way being to ask if they have business of their own

Back 5

Cooke LJ: ‘No exhaustive list has been compiled andperhaps no exhaustive list can be compiled of the considerations which arerelevant in determining [whether someone is an employee], nor can strict rules be laid down as tothe relative weight which the various considerations should carry in particularcases’

Suggested control of actions as important element, but also degree of responsibility for investment and management and opportunity to profit

Front 6

Ready Mixed Concrete v M of Pensions &NI

Facts: court asked what the test was for determining whether someone was self-employed or an employee

Held: Largely to do with control, identified as deciding thing to be done/how it should be done/when/where though judge should look at contract as a whole and can take into account other factors - Economic Reality Test

Back 6

MacKenna J: threeconditions for contract of services

(i) The servant agrees that, in consideration of awage or other remuneration, he will provide his own work and skill in theperformance of some service for his master.

(ii) He agrees, expressly orimpliedly, that in the performance of that service he will be subject to theother’s control in a sufficient degree

(iii) Theother provisions of the contract are consistent with its being a contract ofservice'

Front 7

Stephenson Jordan & Harrison Ltd v McDonall& Evans

Facts: management engineer wrote a book while working for his firm. Copyright Act 1911 said if the author was under a contract of employment and the work was in the course of employment the employer would own the copyright in absence of another agreement.

Held: was employee only in certain aspects and therefore work severable

Back 7

Denning J: difference between a contract ofservice/ contract for services:

‘It is often easy to recognise a contractof service when you see it, but difficult to say wherein the difference lies. Aship’s master, a chauffeur, and a reporter on the staff of a newspaper are allemployed under a contract, of service; but a ship’s pilot, a taximan, and anewspaper contributor are employed under a contract for services’.

Front 8

JGE v The Trustees of the Portsmouth RomanCatholic Diocesan Trust

Facts: C suffered physical & sexual abuse whilst a child at a children’s home run by D. A parish priest committed some of the abuse, and claimed that D were vicariously liable.

Held: Diocesan Trust could be vicariously liable for acts of sexual abuse committed by a parish priest in the diocese.

Back 8

Ward L: ‘I can conclude that the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service. The test that I have set myself is whether the relationship . . [in question] . . is so close in character to one of employer and employee that it is just and fair to hold the employer vicariously liable.’

Will depend on degree of integration into particular business

Front 9

Mersey Docks and Harbor Board v Coggins &Griffiths (Liverpool) Ltd

Facts: worker injured by negligence. Crane & Board driver were hired out. Hirer controlled the crane's operation, but not how driver controlled it.

Held: The House upheld decisions that the Board, as the cranedriver’s general employer, retained responsibility for his negligence.

Back 9

Decisions of this kind i.e. of dual employment, depend on particular facts:

- BOP showing responsibility is not w/general employer is on general employer

- Who pays negligent employee? Who has power to dismiss him?

- Who has immediate and direct control over relevant work? Proper test is whether hirer had authority to control the act's manner of execution

- inquiry should concentrate on relevant negligent act, and ask whose responsibility it was to prevent it

- Transfer of services can only be effected with employee's consent

- responsibility should lie with master in whose act any degree of fault, though remote, may be found

Front 10

On who is the burden of proof to show a shift in responsibility from general employer?

Back 10

See: Mersey Docks

Viscount Simon: heavy burden of proof lay on thegeneral or permanent employer to shift responsibility for the negligence ofservants engaged and paid by such employer to the hirer for the time being whohad the benefit of the services rendered. This could only be achieved where thehirer enjoyed the right to ‘control the way in which the act involvingnegligence was done.’

Front 11

Hawley v Luminar Leisure Ltd

Facts: claimant was assaulted and severely injured at night club by doorman supplied by 3rd party in liquidation

Held: Viasystems decided dual responsibility was sometimespossible, but this case was not such: ‘there has beeneffectively & substantially a transfer of control & responsibility.’ Liability under a policy has to be viewed from the perspective ofthe insured. Club were responsible.

Back 11

Liability under a policy should be viewed from perspective of those insured ]

Compare with Mersey Docks

Front 12

Laugher v Pointer

Facts: Carriage owner hired horses for a day. Horse owner also provided the driver, by whose negligence a horse belonging to a 3rd party was injured.

Held: Majority of the court held that the owner of the carriage was not liable for the injury. said that the coachman cannot be the servant of both the owner of the horses and the traveller.

Back 12

Traditional view on dual employment - dual vicarious liability not allowed

Littledale J: ‘He is the servant of one or the other, but not the servant of one and the other; the law does not recognise a several liability in two principals who are unconnected.’

Front 13

Viasystems v Thermal Transfer Ltd

Facts: The defendants had subcontracted work installing airconditioning to the second defendants, who in turn bought in fitters from thethird defendants. A fitter caused a flood acting irresponsibly.

Held: Depending on facts, judge may find more than one set of employersliable. Employer of the negligent employee and contractor for the supply of that employee on a labour-onlybasis were vicariously liable

Back 13

More modern approach to dual employment - COA regonized two companies may be seen as employers for purpose of vicarious liability

Case also makes reference to necessity for connection between employment & act

Front 14

Cox v Ministry of Justice

Facts: While working as the catering manager at HM Prison, C was injured in an accident caused by the negligence of a prisoner carrying out paid work under her supervision. The prisoner was found negligent, but that the Prison authorities were not responsible.

Held: judge had been wrong to hold that the Respondent was not vicariously liable for the negligence of the prisoner:

Back 14

'Akin to employment' approach adopted by Court of Appeal

Widening of test

Front 15

Majrowski v Guy’s and Thomas’s NHS Trust

Facts: C sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. D appealed finding that it was responsible for a tort committed by a manager, saying that the intention of the Act was to protect against stalkers

Held: Employer was liable, Act created a right to damages

Back 15

Lord Nicholls: ‘precondition of vicarious liability is that the wrong must be committed in the course of his employment...A wrong is committed in the course of employment only if the conduct is so closely connected with acts the employee is authorised to do that for the purposes of the liability of the employer to third parties the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment’,

Also recent application of Lister approach, gave it 'new slant'

Front 16

What is the test for the 'course of employment'

Back 16

Traditionally, the Salmond test:

a. Conduct consider authorized by employer, or

b. Considered to be 'wrongful and unauthorized mode of doing some act authorized by the master' and is so 'connected with acts which he has authorized, ...may be rightly regarded as modes-although improper ones'

Now, use Close Connection Test

- liability arising where the employee’s unlawful conduct was ‘so closely connected with his employment’

Front 17

Trotman v North Yorkshire County Council

Facts: D employed teacher who committed sexual assaults while on a school trip. Such an assault was not acase of an authorised act carried out in unauthorised manner, so Salmond test did not apply

Held: court decided that the act of sexual abuse of a young person by a teacher was "far removed from being an unauthorised mode of carrying out duties on behalf of his employer"

Back 17

Salmond Test limitations

Front 18

Lister & Others v Hesley Hall Ltd

Facts: C were resident at boarding house run by a warden, whose duties were to maintain discipline and supervise the boys when not at school. W systematically sexually abused the claimants at the boarding house.

Held: employers were vicariously liable for the acts of the warden. There was sufficient closeness between the warden's duty in supervising and looking after the boys at the boarding house and his sexual assaults on them.

Back 18

Lord Steyn said that the better approach was to concentrate on the "relative closeness between the nature of the employment and the particular tort"

Lord Clyde said a broad approach should be taken when assessing cases, and whether time and place of incident was related to work.

Front 19

Dubai Aliminium v Salaam

Facts: solicitor alleged to have been dishonest, assisting in fraudulent breach of trust. Contribution to damages sought from partners

Held: The acts complained of wereso close to the activities which a solicitor would normally undertake, that infavour of third parties, it must be assumed that he acted in the ordinarycourse of his business, and the partners were vicariously liable. Lister applied

Back 19

Lord Nicholls said that: "This ‘close connection’ test focuses attention in the right direction. But itaffords no guidance on the type or degree of connection which will normally beregarded as sufficiently close to prompt the legal conclusion that the risk ofthe wrongful act occurring and any loss flowing from the wrongful act, shouldfall on the firm or employer rather than the third party who was wronged."

Front 20

Gravil v Redruth Rugby Football Club

Facts: C was punched by player during rugby game

Held: vicariously liable. Even though a punch was a breach of the express words of the contract, act was committed during the course of employment and punch and employment had close enough relationship

Back 20

Fact that the act was a “serious breach of contract on the part of the firstdefendant”, far from taking the act outside the scope of the employment, servedinstead to emphasise the “close connection” between the tort and the employment

Front 21

Rose v Plenty

Facts: Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.

Held: milkman had not gone so far outside the activities for which he was employed for the employer to escape liability

Back 21

Vicarious liability may apply even when going against instructions

Case indicates it has become very difficult for employers to escape liability

Front 22

Weddall v Barchester Healthcare Ltd

Facts: Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.

Held: Moore-Bick LJ: now ‘a more flexible principle governing the imposition of vicarious liability, which, in the case of wrongdoing by employees, turns on the closeness of the connection between the wrongful act and the employment.’

Back 22

Broad terms of vicarious liability allow for a very flexible approach to cases.

Although employer was liable for the assault taking place at the factory, was held to be taking things 'too far' to hold him liable for attack that happened at home

Front 23

How do courts and commentators justify vicarious liability's imposition on those without fault?

Back 23

On the basis of various policy considerations

- policy considerations cannot explain the particular rules on vicarious liability that the courts have developed

- policy considerations extend beyond employment

- real commitment to policy considerations would radically change the whole law of tort drastically, requiring us to view tort as fundamentally misconceived

Front 24

What is non-delegable duty of care?

Back 24

Principle that employers cannot discharge their personal duty by entrusting it to an independent contractor as they should be reasonable in the selection of care-takers they hire