Tort Law - Vicarious Liability Flashcards
Employers owe a primary liability (duty of care) to their employees. What does this obligation require [4]?
Duty to take reasonable precautions to ensure an employee’s safety.
- The employer’s duty is PERSONAL and NON-DELEGABLE (McDermid v Nash Dredging). In other words, the employer can delegate performance of any duties but the employer is STILL responsible for all that happens.
This includes: (1) safe systems of work, (2) competent employees, (3) safe plants and equipment, (4) safe place of work.
(1) Employers are under a duty to go to the site of work, assess the risk, and plan/organise a safe system of doing work so as to MINIMIZE THE RISK OF INJURY.
(2) Employers must know, or ought to know, about the risk one workers is imposing on another. For this reason, the claimants succeeded when E had been playing practical jokes on others for over 4 years (Hudson v Ridge Manufacturing).
(3) Employers must provide equipment and reasonable instructions to prevent injury - D cannot be liable if the employee never used the provisions available, e.g. hand-sanitizers (Woods v Durable Suites).
(4) This includes third-party premises where the Employer does not own the property, but most work of the business is done on that third-party property. Secondly, what is “safe” is highly dependent on the nature of the job (Cook v Square).
What is vicarious liability?
This is where a tortfeasor (E), who is an employee of the wider employer (D) commits a tort against the claimant (C). Due to the close proximity between E and D, and various policy reasons also, D can be held liable.
Crucially: C does NOT need to prove that D is at fault. Vicarious liability is STRICT LIABILITY.
What are three elements of establishing vicarious liability?
- E commits a tortious act,
- E is an employee of D, or has a sufficiently close relationship/proximity to the employer (“akin to employment”).
- E’s tort(s) were committed in the course of business as an employee or quasi-employee.
To succeed in a vicarious liability case, does C need to prove that his employer was at fault?
No, C does NOT need to prove that the Employer is at fault (only the tortfeasor). Vicarious liability is STRICT LIABILITY.
What is the “close connection” test?
There must be a close connection between D’s tort and the nature of D’s employment.
EG: D’s abuse occurred during his working hours as a school warden and whilst he was performing his job duties (caring for the children) - (Lister v Hesley Hall).
What does Muhamed v Morrisons plc say about the “close connection” test?
Confirms “close connection” test:
1. What was the nature of D’s job? (the “functions or field of activities”)
2. Is there a sufficiently close connection between D’s wrongful, tortious conduct and their employment position, that makes it “fair and just” for the Employer to be held liable?
On the facts, there was a “seamless episode” between the initial act (greeting customers and dealing with members of the public - which Morrisons had entrusted the D to do) and the abuse. The tortious abuse was not an act of personal vengeance, so it was in the course of employment as D abused a member of the public he was dealing with at his job.
Can you think of an example where the “close connection” test will not be satisfied?
The close connection test will not be satisfied where the courts cannot be sure of a connection between D’s wrongful conduct and the D’s position as employee.
(Fletcher v Chancery Lane Supplies), For example:
- C (cyclist) collided with D (pedestrian) who worked for a nearby supply store.
- D was wearing company uniform and boots, but the accident happened 40 minutes after his shift ended.
- There was NO evidence that crossing the road could be “closely connected” to his job, and it was unknown why D crossed the road.
- C’s claim failed.
Can you think of an example where the “close connection” test will not be satisfied?
Yes, for example, going to an “after-work” party and getting into a fight or sexually harassing your colleagues.
In this instance, the “after-work party” was STILL in the course of employment.
(Bellman v Northampton Recruitment Limited)
On the facts:
- this was an organised after-work event that followed on from an organised Christmas party; it was not a random event.
- the tortfeasor (D) was a Managing Director that was directing the “mind and will” of a small company. The attack happened when D was lecturing his employees at the event; they were not discussing non-work topics, like football.
C and D are driving 5 miles away from work on their lunch break. D is driving and negligently injures C.
- Could this be “acting in the course of employment”?
On the facts of (Harvey v RG O’Dell, 1958), yes, this was acting in the course of employment.
- The lunch break was related to D’s work and stopping to take a lunch-break was a reasonably expected act of an employee.
D drives a lorry for his job. D stops at a petrol station to fill up the lorry but smokes a cigarette whilst doing so. The petrol ignites and explodes, causing huge property damage.
- Can this be called “in the course of employment”, even if D was not following proper protocol?
Yes, this was in the course of employment because D was doing something he was authorised to do (fill up his vehicle), even if D did this in an authorised way.
C is a milkman (delivery driver). He is explicitly forbidden from hiring people to help him. C enlists the help of a boy. The boy is injured when the milk float (vehicle) runs over his leg.
- Can this be called “in the course of employment”, even if D was not following proper protocol?
On the facts of (Rose v Plenty, 1976), this was NOT in the course of employment because C’s act was a wholly unauthorised mode of carrying out his day-to-day job.
If you are expressly forbidden or authorised from doing something, the pre-2002 determined that you were “on a frolic of your own”:
- D attempts to drive a bus despite not being authorised - Employer not liable (Beard v London Omnibus).
- D deviating from the standard route leading back to the Employer’s premises.
If found liable for vicarious liability, can D (employer) claim an indemnity under statue?
It is possible forD (employer) to claim an indemnity under statute for vicarious liaiblity.
- D would claim back from the tortfeasor (employee whose conduct was tortious.
- Decided by court if “just and equitable” to allow indemnity.
Does the Employer need to authorise the wrongful conduct for an employee (D), in order to be found vicariously liable?
No, this is strict liability - no requirement for Employer’s authorisation or implied permission to commit a tort.
What is the test used to identify an “employment relationship”? What are the 3 factors which indicate an employment relationship?
- Can you give an example from the case law?
The “mixed factors” or “economic reality” test.
There are 3 key factors which indicate an employment relationship:
1. Remuneration (in exchange for personal services; mutuality of obligations),
2. Control (over the worker, who decides when & where, who gives tasks, who provides tools, etc…),
3. All other contractual factors are consistent with an employment relationship.
- tools & equipment provided,
- employee benefits like sick pay & holiday pay,
- Tax/PAYE as employee instead of independent contractor,
- C labelled as employee (LABELS ARE NOT CONCLUSIVE),
- C is integrated into the organisation.
Example:
D drives lorries for a concrete mixing company. D was responsible for hiring his own lorry, getting his own insurance, had no fixed hours of work, no instructions on routes or set breaks, and was defined in his contract as an “independent contrator”. The company controlled the colour of D’s lorry and his uniform.
Held: D was an independent contract, not an employee (Ready Mixed Concrete case).
What is the test for “akin to employment”?
- Can you give an example from the case law?
Test: Is the relationship sufficiently analogous to employment that it is fair just and reasonable to impose vicarious liability?
(Barclays) case:
- Barclays’ offer of employment was conditional on Cs passing a health check with the doctor (D).
- Time and place of the health check were specified by Barclays. D often called the “bank’s doctor”.
- Despite these elements of control over the Doctor, the relationship was not “akin to employment”.
- This is because the Doctor had a portfolio of patients and clients, one of whom was Barclays.
(Cox v MoD) case:
- C was injured when a prisoner working within the prison service as a cook dropped a bag of rice on her foot.
- D was paid a small amount but there was no contract and the purpose of his work was rehabilitation.
- The court focused on two facts:
(1) The tort was committed as a result of an activity undertaken on the Employer’s behalf.
(2) By allowing D to carry on the activity, the Employer created the risk of the tort being committed.
