Vicarious Liability/non Delegable Duties Of Care

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Vicarious liability

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An employer is liable for the torts of his employees. V.L applies in respect of the acts committed by one's employees.

It is based on strict liability principles because it involves employers being liable for employees if they have acted negligently or unreasonably but its not a strict liability tort.
PROBLEM: There is no single explanation of all of the cases therefore how can we justify all instances of vicarious liability yet to occur because costs can be attributed to employer there is some sense of compensation
Cassidy v Ministry of Health 1951-> patient had operation lost use of hand because went wrong. Because C was unconscious coculdn't attribute blame to one powerson. Al were employees so doesnt mtter which of them it was. Can sue empoyer because it was his employees who cause the damage.

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Distinguishing between employee and independent contractor

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In a problem question someone who is empoyee would have benefits and a long term contract whereas someone who has been hired for a one off job does not constitute an employee.
PROBLEM: Instances in which one can use vicarious liability has been diminshed because many work on an one off basis.

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Control Test

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If someone can control what is done by whom, when and how then it can be assumed that there is an employer- employee relationship.
Regina v. Walker (1858). The Control Test was simply assessing the presence or absence of control a manager or supervisor might or might not have over their worker.

"…A principal has the right to direct what the agent has to do; but a master has not only that right, but also the right to say how it is to be done."

Regina v. Walker, (1858) 27 L.J.M.C. 207

This test was seen as too simplistic especially in recent years, when highly skilled and professional workers possess skills beyond the ability of their employers to direct.


PROBLEM: In the cases of anyone with professional qualifications it is generally unrealistic to hold that the employer has any effective right of control. We have a highly skilled society this is not possible for example in Cassidy, the Minister of Health cannot tell the surgeon exactly what to do. This test was better suited for when we were

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The Multiple Test

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Look at the multiple factors for some element of controll e.g. who supplies the equipment that allows you to do your job
PROBLEMS: Not universally applied.

Developed in a 1947 Privy Council decision in Montreal v. Montreal Locomotive Works Ltd. et al where the court stated:

"… It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive."

Montreal v. Montreal Locomotive Works Ltd. et al, [1947] 1 D.L.R. 161

Lord Wright went on to indicate the crucial question is "whose business is it?" This question is from the worker's perspective and not the payer's.

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The Classic Salmond Test

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Holds the employer liable: "If it is either (1) a wrongful act authorised by the master or (2) a wrongful and unauthorised mode of doing some act [that has been] authorised by the master.
If act not remotely connected with employment then it doesnt satisfy this test

Whatman v Pearson 1867-68[unauthorised mode, but an authorised act]-> employee deviated out of route should've been taking with horse and cart so could ahve llunch at home. Horse boletd and caused accident.
HELD: Employee was authroised to ook fter horse and cart when doing job by going home he was doing his job in unauthorised way thus employer is liable

Storey v Ashton 1868-69[totally unauthorised act]->employee going in opposite direction therefore cannot argue an "unauthorised variation of duty". If employer specifies employee shouldn't do x employee should know that if do x, its an unauthroised x

Rose v Plenty 1976-> a milkman, contrary to express instructions, employed a 13 year old assistant, injured by the milkman's negligent d

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The Close Connection Test

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This test applies mainly when the employee has committed a criminal offence. An employer is not liable for criminall acts of emloyee unless the employee peforms their duties in a criminall manner.
Lister v Hesley Hall Ltd 2002-> The central question before the House is whether as a matter of legal principle the employers of the warden of a school boarding house, who sexually abused boys in his care, may depending on the particular circumstances be vicariously liable for the torts of their employee. The employers accept that at the material time they were aware of the opportunities of sexual abuse which may present themselves in a boarding school environment.

This new test of close connection has been described as 'fairer', and of greater use to claimants.[13] Lord Clyde stated three principles in his judgment which he felt should be considered:
in considering the scope of the employment, a broad approach should be adopted;
while consideration of the time and place at which the acts occurred will always be r

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Non delegable duties

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Employer liable for damage acts independent contractors when obvious negligence on part of employer. C generally rely on non delegable duty of care. In such a case personal duty of care cannot be discharged.
Cassidy v Ministry of Health-> "Where a eprson is himself under a duty to use cre he cannot get rid of it by delegating the performance of it to someone else" Lord Denning

PROBLEM:There is no clear doctrine of when and where such a duty arises. John Murphy aargues that a possible theory is if there is (1) and assumption of responsibility (Hedley- Byrne cases) (2) The prsence of affirmative duty. This view was supported in Leichhardt Municipal Council v Montgomery (2007)

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Cassidy v Ministry of Health

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"Where a person is himsellf under a duty to use care he canot get rid of it by delegating the performance of it to someone else" - Lord Denning

It is a question of law whether a non delegable duty is owed and a clear doctrine of when and where such duties arise ignored by tort lawyers thus there is no clear English authority

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Murphy's theory

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He believes they turn on:
(1) Assumptions of responsibility (understood in the way Hedley Byrne cases are understood)

(2) The presence of an affirmative duty.

Leichhardt Municipal Council v Montgomery 2007--> Liability of a road authority for negligent acts of independent contractor. Coucnil engaged Roan Constructions to lay artificial grass or carpet over disturbed area of footpath to provide clean access to commercial premesis. Construction negligently laid carpt over pit cover and a pedestrian fell into the pit and was injured. Pedestrian sued Council and Roan and because Roan was obviously negligent they settled claim before the trial. In terms of the coucil there was no findnig of direct liability but the primary judge and the New South Wales Court of Appeal found Coucil as the road authority owed the plaintiff a non delegable duty of care thus the council was vicariously liable. HC said there is no general principle that a road authority owes a non delegable duty of care. A D is not vicariously