Vicarious Liability

Question 1

1. Vicarious Liability arises where an employer is liable for…

• Here, C is the claimant who has suffered harm and D is the employer who may be vicariously liable…
• TF has committed the tort of negligence when he…

Answer 1

Vicarious Liability arises where an employer is liable for the torts, and sometimes crimes, of their employees, as first defined by Salmond in 1907, and recently developed from Lister v Hesley Hall to Barclays v Various Claimants

• Here, C is the claimant who has suffered harm and D is the employer who may be vicariously liable on behalf of TF, the employee, who has committed the crime/tort.
• TF has committed the [eg. tort of negligence when he drove carelessly and injured C OR crime of battery when he punched C].

Question 2

2. Traditionally, the two rules were that TF must have been…

Answer 2

Traditionally, the two rules were that TF must have been an employee, and their tort/crime must have happened ‘during the course of employment’, first used in JGE v Trustees of Portsmouth Catholic trust. This has since been developed, so TF must at least be in a position ‘akin to employment’, and there must be a ‘close and sufficient connection’ between TF’s wrong doing and their employment.

Question 3

3. In The Christian Brothers Case, Lord Phillips stated 5 criteria which can make it fair, just and reasonable to find a relationship ‘akin to employment’…

(1,2,3,4,5)

Answer 3

In The Christian Brothers Case, Lord Phillips stated 5 criteria which can make it fair, just and reasonable to find a relationship ‘akin to employment’:

(1) If the Employer is more likely than the employee to have the means to compensate the victim and can be expected to have insurance;

(2) The Employee was under the control of the employer;

(3) The Employee’s Activity was part of the employer’s business activity;

(4) The Activity was undertaken on the employer’s behalf

(5) The Risk was created by the employer by employing the employee to carry out the activity.

Question 3

4. In Various Claimants v Catholic Child Welfare Society (CCWS), Lord Phillips stated 5 criteria which can make it fair, just and reasonable to find a relationship ‘akin to employment’…

(1,2,3,4,5)

Answer 3

In Various Claimants v Catholic Child Welfare Society (CCWS), Lord Phillips stated 5 criteria which can make it fair, just and reasonable to find a relationship ‘akin to employment’:

(1) if the employer is more likely than the employee to have the means to compensate the victim and can be expected to have insurance;

(2) the employee was under the control of the employer;

(3) the employee’s activity was part of the employer’s business activity;

(4) the activity was undertaken on the employer’s behalf; and

(5) the risk was created by the employer by employing the employee to carry out the activity.

Question 4

5. The test was subsequently confirmed in…

Answer 4

The test was subsequently confirmed in Cox v Ministry of Justice, Armes v Notts CC, and in Barclays v Various Claimants.

Question 5

6. FOR THE SECOND RULE, there must be a…

Answer 5

FOR THE SECOND RULE, there must be a ‘close or sufficient connection’ between the employee’s wrongdoing and the nature of their employment.

Question 6

7. The court will ask two things…

Answer 6

The court will ask two things:

What was the field of activities entrusted by the employer to the relevant employee ie. what was the nature of his job?

and;

Was there a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?

Question 7

8. The test was first established in…

This test can apply…

Answer 7

The test was first established in Lister v Hesley Hall, and subsequently confirmed in Various Claimants v CCWS, Armes v Notts CC, Mohamud v Morrisons, Barclays v Various Claimants and Morrisons v Various Claimants.

This test can apply to the torts, or intentional torts (crimes), of an employee.

Question 8

9. TO CONCLUDE…

Answer 8

TO CONCLUDE, [eg. D is likely to be vicariously liable for TF’s tort [or crime] and so D will pay compensatory damages to C OR D is unlikely to be vicariously liable for TF’s tort [or crime] and so TF will pay compensatory damages to C].