VICARIOUS LIABILITY

Question 1

WHAT IS THE DOCTRINE OF VICARIOUS LIABILITY?

Answer 1

The doctrine of vicarious liability imposes liability on one party for the wrongful acts of another

Question 2

WHEN IS THE DOCTRINE OF VICARIOUS LIABILITY APPLIED?

Answer 2

To the liability of an employer for the torts of their employees

Question 3

WHAT ARE THE THREE REQUIREMENTS FOR THE EXISTENCE OF THIS KIND OF LIABILITY?

Answer 3

1. A tort has been committed
2. By an employee – there must be an employer-employee relations (or a relationship ‘akin to employment’
3. The tortfeasor was acting in the course of the employment or was involved in an activity closely connected with their role in the organisation

Question 4

WHO ARE THE TWO POTENTIAL DEFENDANTS IN RESPECT OF VICARIOUS LIABILITY?

Answer 4

• The employee (who has primary liability)
• The employer (who has vicarious liability)

Question 5

WHAT ARE THE THREE TESTS TO HELP THE COURT DETERMINE WHO IS AN EMPLOYEE?

Answer 5

1. The control test
2. The organisation test
3. The multiple test

Question 6

WHAT IS THE CONTROL TEST IN RESPECT OF WHO IS AN EMPLOYEE?

Answer 6

This is the traditional test.

If the employer could tell the worker what to do and how, when and where to do it, they were an employee; if they could not, the worker was not an employee.

Question 7

WHAT IS THE LEADING CASE IN RESPECT THE CONTROL TEST IN RESPECT OF WHO IS AN EMPLOYEE?

Answer 7

Yewns v Noakes [1880]

The judgement indicated that an employer would have a right to ‘control’ the way in which an employee carried out their work

Question 8

WHAT IS THE ORGANISATION TEST IN RESPECT OF WHO IS AN EMPLOYEE?

Answer 8

This was developed because the control test was inappropriate in cases where the employee was a skilled professional.

This test considers a person to be an employee if they are part of the organisation.

Question 9

WHAT IS THE LEADING CASE IN RESPECT THE ORGANISATION TEST IN RESPECT OF WHO IS AN EMPLOYEE?

Answer 9

Cassidy v Minister of Health [1951]

It was held that a hospital authority was vicariously liable for the negligence of a full-time medical staff member because they were part of the organisation of the hospital

Question 10

WHAT IS THE MULTIPLE TEST IN RESPECT OF WHO IS AN EMPLOYEE?

Answer 10

This test, which is the one usually used today, is based on the ‘economic reality’ of the situation, which means that the court will look at all the circumstances in which the person works

Question 11

WHAT IS THE LEADING CASE IN RESPECT THE MULTIPLE TEST IN RESPECT OF WHO IS AN EMPLOYEE?

Answer 11

Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968]

Question 12

WHAT DID CARMICHAEL V NATIONAL POWER [1999] HOLD IN RESPECT OF CASUAL OR TEMPORARY WORKERS?

Answer 12

There must be ‘mutuality of obligation’ – the employer must be bound to offer and the worker bound to accept work

Question 13

WHAT DID MOTOROLA LTD V DAVIDSON AND ANOTHER [2001] HOLD IN RESPECT OF CASUAL OR TEMPORARY WORKERS?

Answer 13

On the basis of day-to-day control, a worker supplied (and paid) by an agency was effectively an employee of the agency’s client

Question 14

WHAT DID MACFARLANE AND ANOTHER V GLASGOW CITY COUNCIL [2001] HOLD IN RESPECT OF CASUAL OR TEMPORARY WORKERS?

Answer 14

In limited circumstances, even the fact that the contract permitted the worker to delegate his task to someone else was not necessarily incompatible with the existence of an employer-employee relationship

Question 15

WHAT DID JAMES V LONDON BOROUGH OF GREENWICH [2008] HOLD IN RESPECT OF CASUAL OR TEMPORARY WORKERS?

Answer 15

That an Employment Tribunal should imply a contractual relationship between the individual and the end user only when it is necessary to do so

Question 16

WHAT IS A QUESTION OF POLICY AS WELL AS A QUESTION OF FACT?

Answer 16

Can relationships which fall short of employment still be sufficiently similar (akin) to employment relationships for the purposes of employers’ liability?

Question 17

WHAT ARE THE TWO TORTS THAT THE CASE LAW IN RESPECT OF ‘A RELATIONSHIP AKIN TO EMPLOYMENT’ FOCUSES ON?

Answer 17

Most of the case law focuses on the Church’s vicarious liability for two torts:

1. The battery of children in its care
2. The institutional negligence in failing to anticipate or deal with priests’ or monks’ behaviour towards children in their care

Question 18

WHY ARE MONKS, PRIESTS OR NUNS AUTOMATICALLY HELD NOT TO BE EMPLOYEES?

Answer 18

Because they are regarded as having been called by God to their roles (priests) or because they are not paid to follow their vocations (monks and nuns)

Question 19

WHAT DID THE SUPREME COURT HOLD IN CATHOLIC CHILD WELFARE SOCIETY V VARIOUS CLAIMANTS (FC) [2012] IN RESPECT OF ‘A RELATIONSHIP AKIN TO EMPLOYMENT’?

Answer 19

That there were two factors that would determine whether vicarious liability could exist:

1. Whether the relationship between the abusers and the defendant was one that was capable of giving rise to vicarious liability
2. The closeness of the connection between the individual and the organisation and the individual’s acts or omissions

It was held in this case that the defendants were vicariously liable for the abuse.

Question 20

IN MOST CASES, HOW MANY EMPLOYERS COULD BE HELD VICARIOUSLY LIABLE FOR AN INDIVIDUAL’S ACTIONS?

Answer 20

One

Question 21

WHAT IS THE GENERAL RULE IN RESPECT OF ‘LENT’ EMPLOYEES?

Answer 21

The permanent employer will be liable for the acts and omissions of the employee unless they can show that they passed control over to the second employer

Question 22

WHAT IS THE LEADING CASE ON ‘LENT’ EMPLOYEES AND WHAT DID THIS CASE HOLD?

Answer 22

Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1946]

The original employer retained control over how the employee discharged their duties, and consequently the original employer will normally be liable for torts committed by that employee even when they are on loan

Question 23

WHAT DID VIASYSTEMS (TYNESIDE) LTD V THERMAL TRANSFER (NORTHERN) LTD AND OTHERS [2005] HOLD IN RESPECT OF ‘LENT’ EMPLOYEES?

Answer 23

In some circumstances, it is possible for two organisations to be vicariously liable for the same action of a worker. This would occur if the two different people, from two organisations, had control over that worker at the time of the negligent act

Question 24

WHAT ACTS ARE THE EMPLOYER RESPONSIBLE FOR?

Answer 24

The employer is only responsible for those acts which the employee performs ‘in the course of employment’

Question 25

WHEN IS A TORTIOUS ACT HELD TO BE ‘IN THE COURSE OF EMPLOYMENT’?

Answer 25

If it is either:

• A wrongful act authorised by the employer
• A lawful act authorised by the employer, but carried out in a wrongful and unauthorised way
• An act which is ‘closely connected’ to the tortfeasor’s role in the organisation

Question 26

WHEN WILL AN EMPLOYEE BE ACTING ‘ON A FROLIC OF ONE’S OWN?

Answer 26

If the employee is doing something outside their normal duties

i.e an employee taking a trip they are not authorised to take

Question 27

WHEN WILL AN EMPLOYEE BE HELD TO BE ACTING IN THE COURSE OF EMPLOYMENT?

Answer 27

If they are doing something wrong or forbidden, provided they are doing their job at the time

Question 28

CAN AN ORGANISATION BE LIABLE FOR THE CONDUCT OF A PERSON WHERE THE WRONGFUL ACT WAS NOT COMMITTED IN THE COURSE OF EMPLOYMENT?

Answer 28

Yes.

It was held in Lister v Hesley Hall [2001] that the test should be whether the acts ‘were so closely connected with his employment that it be fair and just to hold the employers vicariously liable’

Question 29

WHICH CASE CONFIRMED THE CLOSE CONNECTION TEST?

Answer 29

Mr A M Mohamud (in substitution for Mr A Muhamud (deceased)) v WM Morrison Supermarkets PLC [2016]

Question 30

IN RESPECT OF THE CLOSE CONNECTION TEST, WHAT MUST THE COURT ASK/DECIDE WHEN CONSIDERING WHETHER TO HOLD AN EMPLOYER VICARIOUSLY LIABLE?

Answer 30

1. The court must ask what was the nature of the employee’s job (viewed broadly)
2. The court must decide whether there was a significant connection between the position in which he was employed and his wrongful conduct

Question 31

WHAT IS THE EFFECT OF VICARIOUS LIABILITY?

Answer 31

Vicarious liability does not take liability away from the individual. It makes the organisation liable as well as the individual.