2. Vicarious Liability Essay PYQ PDF

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Tort Law Vicarious Liability Essay PYQQuestion Recent developments in the law of vicarious liability that render employers liable for the criminal acts of their employees represent sound and logical incremental developments of the law. Discuss this statement with reference to relevant case law.Answe...

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Tort Law Vicarious Liability Essay PYQ

Question Recent developments in the law of vicarious liability that render employers liable for the criminal acts of their employees represent sound and logical incremental developments of the law. Discuss this statement with reference to relevant case law.

Answer

Vicarious liability is the liability of an employee for the wrongdoing of his employee. It is a form of strict and secondary liability where the primary liability must be established on the part of wrongdoer employee. Mark Lunney and Ken Oliphant define vicarious liability as an employer being held liable for the wrongful acts of an employee committed in the course of employment. G.Williams had also explained the reasons behind this doctrine in “Vicarious Liability and the Master’s Indemnity” where the master is the cause in the factual sense, for if he had not employed the servant to do the particular work, the harm would not have happened and that the master has a purse worth opening. The recent developments in law of vicarious liability holds employer liable for employee’s criminal acts, this is seen to be sound and logical incremental development but it could also be argued to be unfair to the employers.

Vicarious liability policy is to ensure that liability of wrongdoing is borne by the person who has means to compensate as seen in Various Claimants v Catholic Child Welfare Society (2012). For the doctrine to come into force, there are two elements laid down by Paul Giliker in ‘Vicarious Liability in Tort: A Comparative Perspective” that must first be satisfied. Firstly, it is the test to determine whether there is an employer-employee relationship and secondly, whether the conduct by the employee had occurred within the course of their employment. Previously, to identify whether there has been an employer-employee relationship between the tortfeasor and the defendant, the court would apply the “control test” on considering the level of control exerted over the individual. As Justice Cooke in Market Investigation v Minister of Social Security suggested that control was only one factor to consider and the

degree of risk and responsibility the individual assumes would be relevant in the determination of the relationship which is known as economic reality test.

Nevertheless, the courts have now rejected the “control test” as an unsatisfactory means of determining whether there has been a relationship between the tortfeasor and the defendant. Thus, a modern approach to this issue has been established and will only apply when there is an existence of relationship “akin to the employment”. An example to this can be seen in the case of Cox v Ministry of Justice, where a prisoner negligently injured the victim and hence, the prison was held for being vicariously liable. The reason to this is because there is a high degree of control exercised by the prison and also the fact that the ministry of justice had gained an economic benefit from the work by the prisoner. Therefore, this made the court of appeal’s finding of a relationship akin to employment.

This modern approach can be said for being much more lenient today as according to Mark Lunney and Ken Oliphant that at one time, a contract for employment is required in order to bring an action on vicarious liability but now, even quasi-employment relationships may give rise to a vicarious liability. Additionally, as Ward LJ also suggested in E v English Province of Our Lady of Charity that the modern approach had provided flexible interpretation of a relationship of employment. Thus, it may be argued that the “law is on the move” in the sense that an employer may be liable even where a contract of employment does not necessarily exist as judges are now more open to finding a relationship of employment in a variety of arrangements to strengthen the development of law on ensuring what is called “just”. However, there is also risk of sacrificing certainty in how judges should approach the application of legal doctrines, leading to the over-extension of this element of vicarious liability.

On the other hand, the second requirement is arguably the most significant and controversial. This is that the employee must have been in the course of their employment when they committed the tort. To identify whether the particular tort was committed in the course of employment depends on the circumstances leading up to the occurrence of tort, including the reasons for its occurrence. Previously, to determine whether an employee’s tort was committed in the course of his/her employment, the court would use the Salmond

test to identify. This test was set out by the great tort lawyer Sir John Salmond where in his “Law of Torts” he explained that an employee’s tort will have been committed in the course of his employment if the employee did something, he was employed to do by committing that tort. For example, this is seen in the case of Poland v Parr where the tort was conducted when protecting the master’s property which is clearly to be in the course of the employment.

There are number of decisions in case law in regards to employee’s criminal act which could see the development through the time. In Limpus v London General Omnibus Company (1862), the bus driver was racing with rival buses on road while being on duty of transporting passengers and had an accident. The court held the company was vicariously liable. However, in Warrant v Henlys (1948), battery and assault by petrol attendant as an act of personal vengeance against a customer of the garage was outside the scope of his employment. The employer was not liable. In Trotman v North Yorkshire County Council (1999), the Salmon Test was applied in the case of a teacher who used school trips to commit sexual assaults on a dependent child. It is difficult to describe such conduct as an unauthorised mode of carrying out the deputy headmaster’s duty. The Court refused to hold the employer liable on the grounds that the perpetrator was not acting in the course of employment.

However, Trotman was overruled by House of Lords in the case of Lister v Hesley Hall Ltd. (2002). The warden of residential school for children was convicted of sexual assaults on pupils during his employment at the defendant’s school. The school was found vicariously liable and Salmond test was not suitable for cases of criminal wrongdoing. Lister establishes the close connection test which is to be applied with view to achieving a socially just outcome, consistent with public policy and the need for compensation. The court has to look at the nature and purpose of job and the circumstances and context in which the act took place.

The case of Dubai Aluminium v Salaam (2002) further endorsed the Lister test as the proper approach when the wrongdoing is a criminal act. The courts held that fraud by a solicitor was closely connected to his employment, thus fell within the scope of employment.

Further, in Mattis v Pollock (2003), the court found the defendant, owner of nightclub vicariously liable as the doorman of the club stabbed a guest. Although it was an act of revenge , the violent attack happened in the club and the employee was bounce who was authorised to use force in general.

However, in N v Chief Constable of Merseyside Police (2006), the Chief Constable was not liable for an assault carried out by a policeman employed by the Merseyside force. It was clear on the facts that the policeman used his position as an opportunity to commit the assault. As the police owe no specific duty of care to potential victims and the actions of policeman were not closely connected to his employment, it was not fair or just to impose liability on employer.

Based on this, it could be seen courts do consider the situation in a case before imposing liability for any criminal wrongdoing of employee as it could be totally unfair. There have been recent cases on this matter. In Muhammud v WM Morrisons (2016), a customer and employee had argument as the employee responded rudely. The employee then assaulted the customer. The court used close connection test and held the employer vicariously liable as the employee was in the course of employment and it was the job to attend to customers. Then in Barclays Bank v Various Claimants (2018), the court applied CCWS and Cox decisions and found the bank was vicariously liable for sexual assaults committed by one of its independent contractors. Dr Gordon Bates sexually assaulted 126 claimants during preemployment medical examinations.

In conclusion, the recent developments in the law of vicarious liability that render employers liable for the criminal acts of their employees does represent sound and logical incremental developments of the law. This is because the employer does have some responsibility to ensure the employee to follow the law, good conduct and disciplined as in some cases without the employment, there would be no such incidents. Next, employers are usually insured and able to compensate better than an individual. However, it could look unfair for the employer but the case laws shows the instances where court did not impose liability on employers when it was solely the employee’s wrongdoing. Therefore, it is important for the courts to see the nature and situation of a case before imposing liability to avoid injustice....