Vicarious Liability PDF

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VICARIOUS LIABILITY  In simple terms…making someone liable for someone else’s tort  Even though not at fault themselves (done nothing wrong)  Not a tort in itself  Generally, in context of employment – employers held liable for torts of employees  A form of strict liability

 Three requirements of vicarious liability ◦ Employee ◦ …committed a tort ◦ …in the course of employment

Explanations / justifications?  Rose v Plenty [1976] 1 WLR 141 per Scarman LJ “It [is] important to realise that the principle of vicarious liability is one of public policy. It is not a principle which derives from critical or refined consideration of other concepts in the common law.” (it’s about policy)

 Compensation / loss distribution? ◦ The ‘deep pocket’ theory (employer is at a better position to pay the compensation because all employer must carry insurance and able to spread the cost thru insurance or price of good and services) ◦ Glanville Williams (1957): “..the search for a solvent defendant”

◦ Able to spread the loss: insurance / prices  Deterrence? Warning!! Must more care to select who to work for them ◦ Encourages safer selection of employees / control over the work done ◦ But liability insurers pay anyway…  Moral responsibility? (moral enterprise liability) ◦ Employer derives economic benefit from the employee’s work

So who is an employee?  Central question? ◦ Employee (contract of service) or independent contractor (contract for service)? ◦ Not always easy to determine given today’s labour market: atypical employment arrangements  Traditionally…used the “control test” ◦ Yewens v Noakes (1880) 6 QBD 530 ◦ Does employer tell worker what to do and how to do it?  Reflected early forms of employment but now somewhat outdated (employer had a large number of unskilled workers)  Now…Atiyah: control of the ‘when and where’ rather than the ‘how’

Employee? The modern approach…  The economic reality test (See, for e.g. Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173) ◦ How / when is the worker paid? (one off payment or monthly salary) ◦ Who pays National Insurance contributions? (if employee, the employer deducts from the salary before the employee receive the salary) ◦ Who fixes time / place of work? ◦ Who provides work equipment / materials? ◦ Who hires helpers? ◦ Responsibility for investment and management? ◦ Who is taking the financial risk? ◦ Is the work integrated into the business or an accessory to it?  Degree of control only one of the factors to be considered

For example…  Ready Mixed Concrete Ltd v Minister of Pensions [1968] 1 All ER 433 (not a vicarious liability case…) just an example!!!  Concerned owner-drivers  Factors both ways  Contract of service? ◦ Not to use vehicle for anything other than RMC business ◦ Drivers not to alter vehicles without consent of company ◦ Driver to make vehicle available to RMC at all times ◦ Drivers generally required to comply with company rules

 Contract for service? ◦ Driver owned vehicle ◦ Driver free to maintain vehicle as he chose ◦ Driver free to hire another driver in the event of holiday / sickness ◦ Driver could buy fuel where he chose ◦ Ownership of assets, chance of profit and financial risk with driver ◦ Decision: contract for service …not an employee

Employee?  Contractual description relevant, but not conclusive (how the relationship describe in the contract) - If the contract stated, it is independent contractor but using the economic reality test, the court feels that actually he is employee then he is employee. ◦ Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213

Relationship ‘akin to employment’?  Vicarious liability can also arise from a relationship ‘akin to employment’ - It has the same features which is similar to employment relationship  But…be careful…this is not a way of getting round the absence of an employment relationship on the facts (it’s not a test that if you don’t satisfy the economic reality test then used this, this test is only applying to people with relationship which are different from employment relationship)  Relationships akin to employment will be rare…

 Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56  Members of religious organisation (Institute of the Brothers of Christian Schools) teaching in residential school for boys to further religious mission  Question: whether the Institute could be held vicariously liable for acts of sexual abuse committed by some of the brothers even though they were not in an employee/employer relationship

 Lord Phillips identified 5 features of the employee/employer relationship that make it fair, just and reasonable to impose vicarious liability  Employer more likely to have means to compensate  Tort committed as result of activity undertaken on behalf of employer  Employee’s activity part of the business activity of the employer  Employment combined with the business activity has created the risk of the tort being committed  Employee will, to a greater or lesser degree, be under the control of the employer  Lord Phillips then examined the relationship between the brothers and the Institute and concluded it was ‘akin to employment’  This approach followed in Cox v Ministry of Justice  Ministry of justice held vicariously liable for a prisoner working in a prison kitchen

Committed a Tort?  Don’t forget this element….  Employer is not vicariously liable for all of his employees’ acts

 Only vicariously liable where his employee would be liable: ◦ For committing a tort e.g. negligence, assault and battery

In the Course of Employment?  Fleming (1998) “[T]he course of employment is an expansive concept which provides ample scope for policy decisions and, despite the vast volume of case law, has failed to acquire a high degree of precision. No statistical measurement is possible, and precedents are helpful only when they present a suggestive uniformity on parallel facts.”

 Winfield & Jolowicz: Focus not so much on tort committed but on what employee was doing when he committed the tort  Salmond & Heuston (1996): includes both authorised acts (straightforward) and unauthorised modes of doing authorised acts (more difficult)

 Modern approach?  Lister v Hesley Hall Ltd [2002] 1 AC 215 ◦ Is the employee’s act so ‘closely connected’ to the job for which he is employed that it would be just to hold the employer liable? ◦ Criticise as quite empty test “…close connection test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring…should fall on the…employer rather than the third party who was wronged.” Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 per Lord Nicholls

Criticise:  Yap (2008): ‘merely provides the court with a formula to confirm its result not reach one’  Cane (2000): ‘judicial decision-making in such cases is irreducibly pragmatic’

 No real guidance on how ‘close connection’ test should be applied  Different judges adopt different approaches  Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56: consider the extent to which the employment relationship creates or enhances the risk that the harm will occur  Those brothers teach in the school, this gives them the opportunity to be friend young boy, have relationship with them and sexually abuse them  This day to day had created a risk for them to sexually abuse the young boys

 Acts for employee’s own comfort, convenience or benefit  Century Insurance v N Ireland Roads [1942] AC 509  Driver of petrol tanker, delivering petrol to a petrol station. Link the pump and just waiting there, he smokes and light up the matches and just throw it away. This causes explosion and damage someone cars  Although he is not employed to smoke, but he is smoking when he is working. He is at the job at the time  Acts which are expressly prohibited  Twine v Bean’s Express (1946) 185 LT 131  Employee gives a lift to a hitch hiker and then had a car accident. The hiker wanted to hold to employer liable because of employee negligence driving

 It is not in course of employment because the employer did instruct the employee not to drive with anyone  He is acting against the specific instruction  Rose v Plenty [1976] 1 WLR 141  Milkmen, he is told by employer that he should delivery milk on its own but one day he had a young boy working for him  The young boy was injured, the boy held the employer liable  The court held it is in the course of employment. He was actually injured when delivering milk  Driving to / from work  Smith v Stages [1989] AC 928  Driving is part of their job, VL can arise  Harassment / bullying  Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224  Clark v Chief Constable of Essex Police [2006] EWHC 2290 (QB)

 Intentional / wilful misconduct ◦ Lister v Hesley Hall [2002] 1 AC 215  Warden sexually abuse some of the children,  There is close connection  Create a bond with the children and sexually abuse them  So, there is a risk. Employer is liable ◦ Mattis v Pollock [2003] 1 WLR 2158 ◦ N v Chief Constable of Merseyside [2006] EWHC 3041 (QB) ◦ Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 ◦ Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56

◦ Mohamud v VM Morrison Supermarkets  A supermarket outside the petrol station, employee is sitting there in the till. The c’ ask whether there is printing facility. The employee told him where to go and c’ left and the employee follow up and beat him up.  This attack was racially motivated but  SC: it does not matter what is the motive is, Morrison is still held liable.  Question: is this acting in the course of employment  The court said, the employee job is to guard the petrol kiosks and to serve customer and gives information. The fact that he engaged in the racially motivated attack which was his own issue. He didn’t take of his uniform went engage in the fight.

Liability for Independent Contractors?  General rule ◦ No liability for torts committed by independent contractors ◦ Employer lacks detailed control over independent contractor ◦ Independent contractor better able to distribute loss…although changes in labour market mean this is not necessarily the case now

 BUT employer may be liable for breach of his own personal and nondelegable duty… ◦ Where independent contractor puts employer in breach of his own duty ◦ BACK TO PRIMARY LIABILITY as discussed at beginning of last lecture…...