Tort Law - Vicarious Liability

Question 1

Why is vicarious liability different to negligence, occupiers liability or nuisance?

Answer 1

Vicarious liability is not a tort that a defendant can be found liable of in the same way as negligence, occupiers liability or nuisance.
It is rather the legal imposition of liability upon an employer for a tort despite not being the individual committing the tort.
It is a form of strict liability as an employer can be found liable even where they are not at fault but due to the fault of their employees.

Question 2

The law justifies imposition of liability in these circumstances (where employer is liable, not employee) because?

Answer 2

Because of the responsibility that an employer has for an employee as a result of the control they exercise over their actions.
There are also economic reasons for holding an employer liable as an employer is usually in a better position to pay compensation as they will be insured for this purpose.

Question 3

In order for an employer to be found liable, what three things must be established?

Answer 3

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

Question 4

A tort must have been committed by the employee: explain?

Answer 4

The employee must have been negligent or created a nuisance in order for liability to be imposed on the employer. If the employee has not committed a tort then the employer cannot be found vicariously liable.

Question 5

There must be a relationship of employment between the employee and the defendant: explain?

Answer 5

It is essential that the wrongdoer is an employee of the defendant, or in a relationship akin to employment.
Vicarious liability doesn’t normally apply to the torts of independent contractors where there is a contract for the provision of services as distinct to a contract of service.

Question 6

There must be a relationship of employment between the employee and the defendant: what are the various tests to decide whether a person has employee status?

Answer 6

Case law has developed various tests:
A. The control test
B. The integration of organisation test
C. The economic reality/multiple test

Question 7

The control test: what does does it mean?

Answer 7

According to this test, an individual will be regarded as an employee of the employer where the employer had the right to control what the employee did and the way in which it was done.

Question 8

The control test: which case supports this?

Answer 8

Hawley v Luminar Leisure. A bouncer was supplied to a night club by a security firm and assaulted a costumer outside the defendants club. The claimant sued the club. Despite being controlled by the security firm the courts held that the club did have a relationship of employment with the bouncer. As the club exercised so much control over the bouncer in how he should do his work, they temporarily employed him and were vicariously liable.

Question 9

The integration or organisation test: explain?

Answer 9

The test focused on the extent to which the worker was integrated into the business as a whole, and was introduced by Lord Denning. It said that if a worker was fully integrated into the business, they were an employee, but if there work was only an accessory to the business, they were not an employee.

Question 10

The integration or organisation test: what are the examples?

Answer 10

An example would be that a reporter on the staff of a newspaper is an employee, but a freelance writer is not.
A chauffeur is an employee but a taxi driver is not.
However, this test cannot work well in all cases, for example, teachers who examine for boards are classed as employees for tax purposes but it will state within their contracts that they are not to be regarded as employees as they have no rights to redundancy pay.

Question 11

The economic reality/multiple test: explain?

Answer 11

The courts recognise that a single test was not enough to determine employment status, one test could not apply to all types of employment so a multiple test called the ‘economic reality test’ was outlined. This test considers multiple factors in order to determine whether there is an employer/employee relationship.

Question 12

The economic reality/multiple test: what case established a three-part test to determine employment?

Answer 12

Ready Mixed Concrete v Minister of Pensions. Three part test:

1. The employee agrees to provide work or skill for a wage.
2. The employee expressly or impliedly accepts that the work will be subject to the control of the employer.
3. All other considerations in the contract are consistent with there being a contract of employment.

Question 13

There must be a relationship of employment between the employee and the defendant: what are the issues with the initial tests? What are the modern developments?

Answer 13

Any of the initial tests can be used and they are all open to interpretation, thus has made the law inconsistent.
In the last five years a series of cases in the Court of Appeal and the Supreme Court has resulted in the widening of the scope of the law so that even thought the relationship between the defendant and the wrongdoer on the face of it may not look like one of employer/employee, their relationship is so close in character to one of employer/employee that it is just and fair to hold the employer vicariously liable.

Question 14

There must be a relationship of employment between the employee and the defendant: which case supports the modern developments and contains a two part test?

Answer 14

Catholic Child Welfare Society. 170 men accused their teachers of sexual abuse. Teachers were employed directly by the school but they were also members of the Brothers of the Christian School Institute. The question in this case was whether the school were solely vicariously liable or whether the Institute could also be held jointly responsible. It was held that the Institute did have a relationship akin to employment and that under the modern law of vicarious liability a two-part test should be applied. 1. Whether the relationship between the institute and its members was capable of giving rise to vicarious liability. And 2. Whether the alleged acts of sexual abuse were connected to that relationship in such a way as to give rise to vicarious liability.

Question 15

There must be a relationship of employment between the employee and the defendant: which case supports the modern developments?

Answer 15

Cox v Ministry of Justice. The claimant worked as a catering manager at a prison. When unloading food a prisoner caused a food spillage, cox instructed all the prisoners to stop working until the spillage had been cleared. However, negligently a prisoner continued working and dropped a sack of rice onto the back of cox as she was clearing the spillage and was injured. The prisoner was found to be negligent. Cox made a claim against the Ministry of justice as they were the employer of the employee inmate. It was held that the Ministry was liable. ‘A relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit’.

Question 16

The tort must occur in the course of employment or be closely connected with the employment: explain?

Answer 16

This is a question of fact to be determined in each case. There is no single test that is used to determine whether an act is in the course of employment, this issue is decided upon a case by case basis.

Question 17

What are the 4 actions regarded as in the course of employment?

Answer 17

1. Authorised acts
2. Authorised acts done in a way which is forbidden
3. Authorised acts carried out in a negligent manner
4. The ‘close connection’ test

Question 18

Authorised acts: explain?

Answer 18

Where an employee is carrying out an act that they are expressly or impliedly authorised to do within their job role this will be regarded as being ‘in the course of employment’.

Question 19

Authorised acts done in a way which is forbidden: explain?

Answer 19

Where an employee carries out an act that they are forbidden to do, whether it is regarded as being in ‘the course of employment’ and the employer is vicariously liable will depend upon whether at the time of the forbidden act an employee is conducting their contractual/employment duties.

Question 20

Authorised acts done in a way which is forbidden: which case supports this?

Answer 20

Rose v Plenty. A dairy instructed milkmen that they employed not to use child helpers to assist them in completing their rounds. One employee continued to use a young boy to help him and the boy got injured on the rounds due to the employees negligent driving. It was held that the employer was vicariously liable for the employee, although forbidden from carrying out the act the incident was in the course of executing the duties of employment.

Question 21

Authorised acts carried out in a negligent manner: explain?

Answer 21

An employer will be vicariously liable where an employee conducts an act of employment in a poor or improper manner.

Question 22

Authorised acts carried out in a negligent manner: which case supports this?

Answer 22

Century Insurance v Nothern Ireland RTB. An employee driving a petrol tanker was delivering petrol to a petrol station when he lit a cigarette and threw it on the ground. This caused an explosion which destroyed several cars and damaged some houses. Despite the fact that he was acting in a negligent manner the employers were vicariously liable as the employee committed the act whilst in execution of his duties.

Question 23

The ‘close connection’ test: explain?

Answer 23

In recent times the courts have established that acts, even criminal acts may establish vicarious liability where the acts have a ‘close connection’ with the employment, if the acts have a ‘close connection’ to the employment they are considered to be in the course of the employment and the employer will be vicariously liable.

Question 24

The ‘close connection’ test: which cases support this?

Answer 24

Lister v Hesley Hall. It was held that the school was vicariously liable as although the acts were not authorised it was better to concentrate on the closeness of connection between his job and what he did. The 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 to be within the course of his employment. (The duties of the warden gave him the chance to commit the crimes)
Mohamud v Morrison’s Supermarkets. It was held that the employers were vicariously liable for the employees acts. There was a sufficient close connection between the employees job and what he did to the customer as it was at work in working hours. The court held that in these circumstances, when trying to establish if the acts are in the course of employment there are two relevant questions. 1. What is 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 justice?

Question 25

What are 2 actions not regarded as in ‘the course of employment’?

Answer 25

1. An unauthorised act

2. The employee is acting on a ‘frolic’ of his or her own.

Question 26

An unauthorised act: explain?

Answer 26

An unauthorised act that is outside of an employee’s duties will not establish vicarious liability.

Question 27

An unauthorised act: which case supports this?

Answer 27

Beard v LGOC. The employee was a bus conductor who was employed to collect passenger fares on a bus. One day, without the authority of the bus company the employee drove a bus in a negligent manner and injured the claimant. It was held that the employers were not vicariously liable for this action as the employee was acting outside of the scope of his employment.

Question 28

The employee is acting on a ‘frolic’ of his or her own: explain?

Answer 28

This means that if injury/loss was caused to the claimant whilst the employee was outside the area or time of their employment the employer generally will not be vicariously liable. This will generally apply to a persons driving to and from work, they are not acting in the course of their employment. This may include something committed during employment time, but was outside of the course of employment because it was not in the interests of or benefits the employer e.g. a delivery driver committing a tort whilst stopping at a shop when they are meant to be working.

Question 29

What is employers indemnity?

Answer 29

Where a claimant is making a claim via vicarious liability there are essentially two defendants, under the law of tortious remedies the claimant is only entitled to one payment in respect of the harm or loss. This mean that if the employer and the employee are both found to be liable the claimant is not going to be doubly compensated.
According to the Civil Liability (Contribution) Act 1978 if an employer is held liable for an employees tort, as they in turn can sue their employee to recover some or all of the damages awarded against them. They can also recover any compensation paid out from the employee by for example deduction from wages.

Question 30

What is contained in the Civil Liability (Contribution) Act 1978?

Answer 30

According to the Civil Liability (Contribution) Act 1978 if an employer is held liable for an employees tort, as they in turn can sue their employee to recover some or all of the damages awarded against them. They can also recover any compensation paid out from the employee by for example deduction from wage.