Vicarious liability PDF

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Vicarious liability...

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Vicarious liability ! •

Making someone liable for someone else’s tort even though they are not at fault themselves !

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Vicarious liability is not a tort in itself !

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It is generally raised in context of employment — employers are held liable for torts of employees !

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It is a form of strict liability !

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There are 3 requirements to establish vicarious liability!

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1. must be an employee !

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2. who has committed a tort !

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3. in the course of employment !

Justifications for vicarious liability ! •

‘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’ — Rose v Plenty per Scarman LJ !

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Strict liability !

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Compensation and loss of distribution !

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The ‘deep pocket’ theory !

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‘…the search for a solvent defendant’ — Granville Williams !

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Able to spread the loss through insurance and spread the cost through prices !

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Looking for D who is able to pay and not who is morally culpable !

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Deterrence !

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Encourages safer selection of employers and control over the work done !

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Disputed because liability insurers pay anyway !

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Moral responsibility !

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Employer derives economic benefit from the employee’s work !

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(1) The employer is likely to be in a position to compensate C. They can be expected to insure against such liability. The presence of liability insurance, in turn, mens that vicarious liability acts as ‘a loss-distribution device’ whereby the financial loss arising from the wrongdoing can be spread more widely across the community through insurance premiums or higher prices !

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(2) The tort will been committed as a result of activity undertaken by the employee on behalf gf the employer or as a part of the business of the employer — enterprise liability or delegation

task arguments. These suggest that as employers derive an economic benefit from the employee’s work, they should ear any related burdens: ‘ a person who employs others to advice his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise’ ! •

(3) The employer by employing the employee has taken the risk of harm occurring and so, as they either gain a benefit from that risk or because their role in creating it, they should bear responsibility should the risk materialise!

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(4) The employee will have been under the control of their employers. The imposition of vicarious liability therefore acts as an incentive ensuring that employers not only maintains standards of good practice and take care when making appointments, but explore ways of going beyond those set by the standard of the reasonable person !

An employee! •

The central question is who constitutes an employee, it is employee (contract of service) or independent contractor (contract for service)!

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Distinguish between employees who have a contract of employment with their employer and independent contractors who has contract for service !

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It is not always easy to determine given today’s labour market e.g. uber !

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Traditionally used as the ‘control test’ to determine who is an employee — comes from Yewens v Noakes and the courts were looking whether the employer tell the worker what to do and how to do it !

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It reflected early forms of employment but now is somewhat outdated it reflected outdated forms of employment, people are much more skilled nowadays and more autonomy is available !

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Atiyah: control of the when and where rather than how !

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The modern approach is to use the economic reality test — Makes Investigations ltd v Minister of Social Security —there isn’t one single test for decking whether someone is an employee, control is just one factor amongst many !

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We are looking at the economic reality !

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—how and when is the worker paid?!

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—who pays National Insurance contributions?!

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—who fixes time and place of work?!

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—who provides work equipment and materials?!

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—who hires helpers?!

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—responsibility for investment and management?!

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—who is taking the financial risk?!

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—is the work integrated into the business or an accessory to it? !

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—Ready Mixed Concrete Ltd v Minister of Pensions (not a vicarious liability case)—delivered concrete and owed their own lorries, were their employees or contractors? — held that they were contractors because they owed their own vehicle !

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Contractual description can be relevant in deicing if someone is an employee, however it is not conclusive because independent contractors may also have contracts !

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—Ferguson v John Dawson & Partners Ltd — the contract is only informative and not conclusive — still use the economic reality test !

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Relationship ‘akin to employment’ !

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Vicarious liability can also arise from a relationship ‘akin to employment’ !

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However this is not a way of getting around the absence of an employment relationship on the facts and relationship akin to employment will be rare !

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Only applied to people with relationships which are different from employment relationships !

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—Various Claimants v Catholic Child Welfare Society and others — members of religious organisation teaching in residential school for boys to further religious mission — questions whether the instituted could be held vicariously liable for acts of sexual abuse committed by some of the brothers even though they were not in an employee relationship !

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—Lord Phillips identified 5 features of the employee / employer relationship that make it fair, just and reasonable to impose vicarious liability !

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—1. employer more likely to have means to compensate !

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—2. tort committee as result of activity undertaken on behalf of employer !

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—3. employee’s activity part of the business activity of the employer !

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—4. employment combined with the business activity has created the risk of the tort being committed !

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—5. employee will, to a greater or lesser degree, be under the control of the employer !

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—Lord Phillips hone examined the relationship between the brothers and the institute and held that it was akin to employment !

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This approach was followed in the following case !

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—Cox v Ministry of Justice — Ministry of Justice held vicariously liable for a prisoner working in a prison kitchen !

Committed a tort ! •

Employer is not vicariously liable for all of this employee’s acts !

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Only vicariously liable where his employee would be liable for committing a tort e.g. negligence!

In the course of employment ! •

—Fleming — ‘the 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’ !

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Winfield and Jolowicz: focus not so much on tort committed by on what employee was doing when he committed the tort !

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Salmond and Heuston: includes both authorised acts and unauthorised modes of doing authorised acts !

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Modern approach established in !

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—Lister v Hesley hall Ltd — is the employee’s act so ‘closely connected’ to the hob for which he is employed that it would be just to hold the employer liable?!

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—Dubai Aluminium Co Ltd v Salaam — ‘…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’ !

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Criticism !

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Yap — ‘merely proved the court with a formula to confirm its result not reach one’ !

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Cane —‘judicial decision-making in such cases is irreducibly pragmatic’ !

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Therefore there is no real guidance on how ‘close connection’ test should be applied !

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Different judges adopt different approaches !

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—Various Claimants v Catholic Child Welfare Society and others —in looking whether there is a close connection between the employment and the tort, consider the extent to this the employment relationship created or enhances the risk that the harm will occur !

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Examples of acting in the course of employment:

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Acts for employee’s own comfort, convenience or benefit — Century Insurance v N Ireland Roads —petrol tanker driver, delivering petrol start smoking and causes an explosion, he acted in the course of employment because he was delivering the petrol and was working at the time he was starting to smoke !

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Acts which are expressly prohibited:!

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—Twine v Bean’s Express — gave a lift to a hitchhiker and had a car accident as a result of negligence driving, not acting in the course of employment because the employer has

specifically prohibited the employee from picking up hitchhikers and he was acting against specific instructions! •

Whereas !

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—Rose v Plenty— milkman told that he should deliver milk on his own without assistance, he had a young boy working for him and the boy injured, court held that he was acting in the course of employment because when the accident happened he was actually doing his job at the time as he was delivering milk !

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Driving to and from work !

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In general terms that doesn’t count as in the course of employment but where driving is a part of someone’s job that is different !

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—Smith v Stages — paid 8 hours to rest and then drive back but they decided to rush through and decided to drive back earlier and was negligent in their driving, held that they were acting in the course of employment and made it clear that it depend on the facts of each case !

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Harassment and bullying at work !

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—Majrowski v Guy’s and St Thomas’s NHS Trust !

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—Clark v Chief Constable of Essex Police !

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Intentional and wilful miscount / criminal acts !

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—Lister v Hesley Hall — warned in a children’s home sexually abused children, there could be a close connection between the employment and the unlawful act and he was acting the in the course of employment, the employment itself gave him the opportunity and created the risk !

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—Mattis v Pollock —nightclub doorman in an altercation, a while alter he went to find C and stabbed him, the employer was liable because the doorman was employed because of his character and seemed to be part of employment, even when he went to chase C !

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—Mega v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church — Archdiocese was vicariously liable for sexual abuse committed by a priest since his role and work gave him authority and opportunity to commit that abuse and consequently there was a sufficiently close connection for liability to arise !

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—Mohamud v WM Morrison Supermarkets — an employee of Morrison’s violently assaulted C and it was held the there was sufficiently close connection between the employment and the intentional act — job to guard the petrol and that was wha the was doing when the incident occurred and he was serving the customer, he didn’t take off his uniform and it was one extension — widening the structure !

Joint liability ! •

Vicarious liability is a form of joint liability !

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—Civil Liability (Contribution) Act 1978 !

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But unlikely !

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But doesn’t forever, the employee remains responsible for the tort, it’s just that the employer can be held responsible too !

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As vicarious liability only arises if the employee committed a tort, the employer and employee are regarded as joint tortfeasors !

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Means that the employer may be able to recover some of the cost paying damages to C from the Employee, 2 way in which it could occur !

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—Civil Liability (Contribution) Act 1978 — it is decided based on what is just and equitable in the circumstances of the case, 2 (1) could cover the whole amount of damages paid to C if the court felt that the employer, although vicariously liable for the tort, was entirely blameless !

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—Common law indemnity — Lister v Romford Ice & Cold Storage Ltd — HL held that an employer could obtain an indemnity (the full cost of the damages paid to C) if the loss or injury had been caused by the employee’s breach of contract !

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—an employer cannot claim an indemnity at common law unless he is in no way to blame for the employee’s conduct !

Liability for independent contractors ! •

General rule that there is no liability for torts committed by independent contracts !

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Employer lack detailed control over the independent contractor !

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Independent contract better able to distribute loss…although changes in labour maker mean the this is not necessarily the case now !

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But employer may be liable for breach of his own personal and non-delegable duty !

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Where independent contractors puts employer in breach of his own duty !...