Vicarious Liability

Question 1

Lister v Hesley Hall

Answer 1

The House of Lords held that vicarious liability can arise for unauthorised, intentional wrongdoings committed by an employee acting for his own benefit, in so far as there exists a connection between the wrongdoings and the work for which he was employed to render it within the scope of employment.

The court rejected the restricted view that vicarious liability could only arise when the employee is acting for his employer’s benefit.

The warden’s function was to care for the boys and the fact that he performed that function in an abusive manner does not sever the connection with his employment for the purposes of vicarious liability.

Employers were liable.

The court used the extension that Salmond added to the second limb of his test, which stated that ‘a master is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them’.

Question 2

Imperial Chemical Industries Ltd v Shatwell

Answer 2

Development of law in this area is not very consistent.

Any development was not the result of ‘any very clear, logical or legal principle, but of social convenience and rough justice’.

Question 3

Yewens v Nokes

Answer 3

Apply control test to determine contract of service or contract for service.

Bramwell LJ: a servant is a person subject to the command of his master as to the manner in which he shall do his work.

Question 4

Ferguson v Dawson

Answer 4

Devised control test based on the old-fashioned concept of master and servant.

The Court of Appeal held that a building labourer was an employee and therefore protected by certain safety legislation, on the basis of the type of work done and the degree of control exercised over it.

This was despite a contractual term stating that he was self-employed, and it means that employers cannot evade certain responsibilities simply by choosing to describe their workers as self-employed.

Question 5

Catholic Child Welfare Society v Various Claimants

Answer 5

Control test is not suitable for modern employment patterns because not all employees are under direct control of their employer.

Lord Phillips: many employees employ a skill or expertise that is not susceptible to direction by anyone else in the company that employs them.

Question 6

Cassidy v Ministry of Health

Answer 6

1. The court introduced the concept of ‘ultimate control’.
   > Denning MR: the reason why the employer are liable in such cases is not because they can control the way in which the work is done - they have not sufficient knowledge to do so, but because they employ the staff and have chosen them for her test and have on their hands the ultimate sanction for good conduct, the power of dismissal.
   > The case recognises that the control test is inconclusive as far as professional’s are concerned. It is difficult to see how employers can control the work of engineers, surgeons and computer analysts as these people have some independence in the course of their employment.
2. Somervell LJ: absence of control does not prevent their being ‘a contract of service’. Example, a ship owner does not control how a ship captain manages the sailors and yet the captain is a servant. It is impossible to give a precise definition of a ‘contract of service’ and the test is really whether an ordinary person would recognise there to be one.

Question 7

Stevenson, Jordan and Harrison Ltd v MacDonald and Evans

Answer 7

Denning LJ devised the business integration test: under contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.

Question 8

Ready Mixed Concrete (South East) Ltd v Minister of Pension

Answer 8

Introduced multiple test as the business integration test was proved to be inadequate.

3 conditions must be fulfilled for a contract of service to exist:
> Employee agreed to provide work and skill for the employer in return for payment.
> Employee agrees (expressly or by implication) to be subject to employers’ control.
> Other terms are consistent with the contract of service.

A person is an independent contractor if:
> Required to pay for their own materials, or
> Allowed to employ staff to help do the job, or
> Likely to own, own tools and equipment

Question 9

Market Investigations Ltd v Minister of Social Security

Answer 9

Business on the own account test considers whether a person performs services in business or on their own account.

The court will consider whether the person uses their own premises, equipment, whether they hire their own helpers, degree of financial risk they take, the degree of responsibility they have for investment and management.

The court also concluded that the test is not conclusive and there is no definitive test, it should be decided on a case-to-case basis.

Question 10

Carmichael v National Power PLC

Answer 10

The House of Lords decided that she was an indepedent contractor and not an employee because there was no obligation to provide work and no obligation on the woman’s part to accept any work.

Question 11

Cox v Ministry of Justice

Answer 11

The ‘akin to employment’ approach has been adopted by the courts for some time but was confirmed in this case.

The prisoner’s activity in unloading supplies was ‘akin to employment’ even though the relationship to the prison was not voluntary.

Question 12

Poland v Parr

Answer 12

The court held that the employer was vicariously liable as it was an impliedly authorised act conducted during the employee’s course of employment and as a result of the employee acting within the scope of his duty to protect the employer’s property.

Question 13

Warren v Henlys Ltd

Answer 13

If violence is inflicted as part of a private disagreement, it is not normally in the course of employment.

The employer was not liable as the misbehaviour is not in the course of employment ebcause the act of assault was one of personal revenge and not done in the course of employment.

Question 14

Mattis v Pollock (t/a Flamingos Nightclub)

Answer 14

If the circumstances are now appropriate where using violence was an expected part of the employe’s job, the close connection test may be used.

The Court of Appeal held that it was not a separate incident, but part of the whole series of events springing from the bouncer’s violent behaviour towards this group of customers. The court was also influenced by the fact that the employer knew of and encouraged the doorman’s violent behaviour.

Employer was vicariously liable.

Question 15

Limpus v London General Omnibus Co.

Answer 15

Employers will be liable if the prohibition is regarded as applying to the way in which the job is done rather than to the scope of job itself.

This situation arises where the employee is doing their job but they ignore an express instruction not to do something.

The bus driver was in the course of employment even though he was carrying out his job in an improper manner. Therefore, the employer is vicariously liable.

Question 16

Century Insurance Co. v Northern Ireland Road Transport Board

Answer 16

Arise when the employee acts carelessly (negligently).

The defendant was held liable in the employee’s negligence, as he was doing his job at the time the tort was committed, even if he was doing it in a negligent way.

Question 17

Rose v Plenty

Answer 17

Arise when use unauthorised help. The cases are inconsistent and the decisions seem ti be based on whether the employer derives a benefit from the unauthorised help.

Employer is vicariously liable early because the boy’s help benefited the employer’s business.

Question 18

Majrowski v Guy’s and St Thomas’ NHS Trust

Answer 18

Arise when there is a breach of statutory duty. This shows that the imposition of vicarious liability is not restricted to common law claims.

Employer may be vicariously liable for breach of statutory duty under the Protection form Harassment Act 1977 imposed on its employee if the test of fairness and justice was met, and there was sufficient connection between the employee’s breach of duty and the nature of the employment.

Question 19

Beard v London General Omnibus Co.

Answer 19

Outside the course of employment if carrying out an act not within the scope of the employee’s work; that is the employee does something that is not connected with what they are employed to do.

The bus conductor in the absence of the bus driver decided to turn the bus around. It was not his job to do so so he was acting outside the course of his employment.

Question 20

Hilton v Thomas Burton (Rhodes) Ltd

Answer 20

Outside the course of employment if diverting from the proper work on a ‘frolic’.

No vicarious liability as even though the driver had permission to use the van, he was not employed to do so when the accident occurred.

Question 21

Williams v Hemphill

Answer 21

Contrast with Hilton v Thomas Burton (Rhodes) Ltd.

There was liability in relation to a bus driver who detoured while carrying children in order to please the children on board.

Question 22

Twine v Bean’s Express Ltd

Answer 22

Outside of the course of employment if giving unauthorised lifts.

The driver was told not to give lifts to anyone who was not within a group of authorised passengers, and there was a notice on the side of the vehicle stating who could be allowed to have a lift. The claimant’s husband was not one of this group.

There was no liability because the driver was doing an unauthorised act and was outside the course of his employment.

Question 23

Young v Edward Box and Co. Ltd

Answer 23

Contrast with Twine v Bean’s Express Ltd.

Employer was liable because the foreman was acting in the course of his employment, even though the passenger was unaware of the foreman’s lack of authority.

Question 24

Makanjuola v Commissioner of Police for the Metropolis

Answer 24

Outside the course of employment if acting in excess of the proper boundaries of the work.

No vicarious liability as his behaviour was not within the terms of the officer’s employment.

Question 25

Smith v Stages

Answer 25

Salmond test has been used when the employees have been travelling to or from work. Usually, such employees are not within the course of employment, unless they are travelling specifically on the employer’s business.

A worker travelling between home and a temporary workplace, and who was paid during that time, was held to be in the course of employment. This was the position even though the employee had a discretion about the method and the time of travel.

Question 26

Lloyd v Grace Smith and Co.

Answer 26

Use Salmond test to deal with some forms of intentional wrongdoing - dishonesty concerning fraud by a solicitor’s clerk.

Question 27

Morris v Martin

Answer 27

Use Salmond test to deal with some forms of intentional wrongdoing - theft of a customer’s property from a cleaner.

Question 28

Gravil v Carroll

Answer 28

The wrongful act committed by the player was so closely connected with his employment as a rugby player that the club he played for was vicariously liable.

Question 29

Ministry of Defence v Radclyff

Answer 29

The connection between the nature of his employment as an officer in the army and his breach of duty was within the Lister test.

Question 30

N v Chief Constable of Merseyside

Answer 30

Following Lister, an employer can do very little to avoid liability for the intentional wrongdoings of their employees. This does not mean that the claimant will always win. In this case, the claimant failed.

The conduct was not in the course of employment and neither was there a close connection with his employment. His uniform only gave him the opportunity to commit the wrongdoing.

Question 31

Maga v The Trustees of the Brimingham Archdiocese of the Roman Catholic Church

Answer 31

The law has broadened their scope in terms of who an employee is and have explored the issue of what can be regarded as a close connection to employment.

The Lister test was fulfilled in full, there was vicarious liability on the Catholic Church for the acts of the Catholic priest who bused him.

Question 32

JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012)

Answer 32

The Court of Appeal held that the usual employment test was not appropriate because a priest is not an employee of the church but merely an officeholder.

It was decided that only a relationship akin to employment needed to be proved. The Court of Appeal held that the relationship between a parish priest and diocese was akin to employment relationship, so liability was imposed.

Question 33

Mohamud v WM Morrison Supermarkets plc

Answer 33

The ourt considered the issue of close connection.

The Supreme Court found that the assault was the result of a sequence of events.

The employee’s actions were a gross abuse of his position but they were cosely connected with his employment because he was employed to serve customers.

It was just for the defendant to be liable for its employee’s abuse of position.

Question 34

Morissons Supermarket v Various Claimants

Answer 34

After a period of expansion of the law, two recent Supreme Court decisions appear to have halted this development.

The Supreme Court considered what close connection meant and stated that employers will not be liable for a wrongful act, whether or not the act is engaged in furthering the employer’s business or is an effort to deliberately harm the employer as part of a vendetta.

No liability as the employee’s actions were outside the course of employment.

Question 35

Barclays Bank plc v Various Claimants

Answer 35

Allowed the Supreme Court to clarify the application of the two stages of the test for vicarious liability and to restrain ‘the expansion of those parties which are considered to be employees or ‘quasi employees’, and the range of wrongful actions of employees for which an employer can be held to be vicariously liable’.

Question 36

Lister v Romford Ice and Cold Storage

Answer 36

An employer who is sued on the basisof vicarious liability is entitled to sue the employee in turn, and recover some or all of the damages paid for the employee’s tort.

Employer is vicariously liable and their insurers paid. The House of Lords allowed indemnity. The employer was entitled to damages from the son.

Question 37

Padbury v Holliday and Greenwood Ltd

Answer 37

Employers are not liable for acts which are outside their employment as independent contractors.

The sub-contractor is liable but the defendant is not liable.