Paper 2: vicarious liability

Question 1

Definition

Answer 1

A way of imposing liability for a tort committed by an employee onto an employer, even though the employer is free to blame

Question 2

3 elements

Answer 2

1) A tort must have been committed by the tortfeasor
2) There must be a relationship of employment between the tortfeasor and the defendant
3) The tort must occur in the course of employment

Question 3

Who is the employment relationship between?

Answer 3

A contractor/self-employed individuals are legally responsible for their own actions; this is why they tend to have public liability insurance

Question 4

Distinction between an employee and an independent contractor

Answer 4

Employee= under a contract for service

Independent contractor= offers a contract for services

Question 5

The Christian Brothers Cases (2012)

Answer 5

Held: SC held that institute should be responsible for the acts of its members, as they were in a relationship akin to employment with those ministers. This was based on:

• Hierarchal structure of the institute
• Ability of the institute to direct where its members taught
• Importance of teaching activity in the organisations mission
• Manner in which its members bound by the rules
• Also base don the idea sufficient connection between the position which they were employed and the wrongful conduct that took place as to give rise to vicarious liability

Question 6

Rylands v Fletcher: Cox v Ministry of Justice

Answer 6

Held: prisoners working in a prison kitchen were in a relationship akin to employment, so any organisation where an individual’s work is integral to its business and which carries risks by asking the individual to carry out that role

Question 7

Rylands v Fletcher: what does it mean if it is in the course of employment?

Answer 7

It is in the course of employment if:

• Acting against
• Authorised activity done in a negligent way
• The ‘close connection’ test is a new test for intentional torts and criminal

Question 8

Rylands v Fletcher: what is not in the course of employment?

Answer 8

• It is unauthorised
• It is a frolic of the employee’s
• The employee does the tort when travelling to/fro work (unless they’re paid to do so)

Question 9

Rylands v Fletcher: Smith v Stages (1989)

Answer 9

Facts: employee working at a power station then sent on an urgent job to wales and back, paid for 8 hours, whilst travelling back he hit a brick wall
Held: employer was liable as the court decided he was acting in the course of employment as he was being paid during his travelling time, fact he left early was immaterial

Question 10

Rylands v Fletcher: Century Insurance v Northern Ireland Road Transport Board (1942)

Answer 10

Facts: petrol tanker making a delivery when he lit his cigarette and put it on the group causing an explosion which destroyed several card and damaged some houses
Held: employer was liable to pay compensation as the driver was doing his job, even though he did it negligently

Question 11

Rylands v Fletcher: Lister v Helse Hall (2001)

Answer 11

Facts: warden sexually harassed children in an emotionally difficult school
Held: assaults were carried out on the school premises when he was looking after the children so this was closely enough connected with the work he was employed to do within his course of employment

Question 12

Rylands v Fletcher: Mohamud v Morrisons Supermarkets (2016)

Answer 12

Held: SC decided there was sufficient close connection between the employee’s job and what he did to the customer. It was at work within working house and there was a sufficiently close connection between his job and the wrongful conduct

Question 13

Rylands v Fletcher: two questions asked

Answer 13

1) What was the nature of the job?
2) Was there a sufficient connection between that job and the wrongful conduct to make it right for the employer to be held liable under the principle of social injustice?

Question 14

Rylands v Fletcher: Twine v Beans Express

Answer 14

Facts: an employer gave a hitchhiker a lift after being told not to by his employee, was negligent in his driving and injured the hitchhiker
Held: this was going on a ‘frolic of his own’ and was not in the course of his employment

Question 15

Rylands v Fletcher: Rose v Plenty (1976)

Answer 15

Facts: milkman allowed a boy to help him make deliveries after being told not to let children on board
Held: as this benefitted the employer, it was not a frolic and the employers were vicariously liable

Question 16

Rylands v Fletcher: Beard v LGOC (1900)

Answer 16

Facts: employee is a bus contractor authorised to sell tickets, he drives the bus
Held: driving the bus is an unauthorised act so he is not vicariously liable

Question 17

Rylands v Fletcher: Limpus v London General (1862)

Answer 17

Facts: bus drivers told not to race buses, but did causing damage
Held: this is a wrongful and forbidden way of doing an authorised act so the employer is liable