Vicarious Liability

Question 1

How vicarious liability works

Answer 1

The tortfeasor commits a tort. The defendant is liable for the tort because of their relationship with the tortfeasor.

Question 2

Strict liability

Answer 2

There is no need to prove any wrong doing on the defendant’s part.

Question 3

The liability of the tortfeasor.

Answer 3

In theory the tortfeasor is liable, however the claimant will be interested in suing the defendant rather than the tortfeasor. The defendant will have insurance or other financial resources to meet the claim.

Question 4

Relationships that qualify as vicarious liability.

Answer 4

Usually an employee.

Question 5

Two components of vicarious liability.

Answer 5

1. Applicable relationship. (often but not necessarily, employment)
2. Close connection between that relationship and tort.

Question 6

Historically the two components were…

Answer 6

1. Is the tortfeasor an employee of the defendant?
2. Was the tort committed in the course of employment?

Question 7

Employment

Answer 7

• If it is established that the tortfeasor is an employee of the defendant then there will be vicarious liability in that relationship.
• No single test for an employee status, and the person may be deemed an employee for some legal purposes and not others.

Question 8

Questions to figure out whether the relationship is employment…

Answer 8

• How do the parties identify in a contract?
• How are tax and NI contributions paid?
• Does employment protection legislation apply? (Could the TF claim unfair dismissal, redundancy, discrimination in employment)
• Do statutory duties relating to employee’s apply?
• Does the employers common law duty of care to the employee apply?

Question 9

Ferguson v Dawson and Partners (contractors) [1976].

Answer 9

Describing a worker as ‘labour only subcontractor’ and arranging for him to pay his own income tax did not change the reality that he was an unskilled labourer, working under the direction of the site agent.

Question 9

Loaned employee’s. Hawley v Luminar [2006].

Answer 9

The court decided that the nightclub had enough control over the bouncer to be vicariously liable for the incident.

Question 10

More than one party can be vicariously liable. Cases.

Answer 10

1. Viasystems v Thermal Transfer and others [2006]. An employee is borrowed.
2. Various claimants [2013]. The TF has more than one ‘master’. The TF a teacher part of a religious group. Both the group and the school, were found vicariously liable for the tort.

Question 11

Beyond employment. JGE of the Portsmouth Roman Catholic Diocesan Trust [2013].

Answer 11

The courts made it clear that vicarious liability extends beyond employment.

Question 12

Beyond employment. A v Trustees of the Watchtower Bible society [2015].

Answer 12

Religious organisation held liable for the actions of unpaid ‘ministerial servant’. Basically a volunteer with a special role in the group.

Question 13

Beyond employment. Cox v Ministry of Justice [2016].

Answer 13

The defendant held liable for the action of prisoner working in a prison kitchen. Role of the TF in work of the ‘organisation’ significant.

Question 14

Beyond employment. MXX v A Secondary School [2023].

Answer 14

Student on work experience was found to be akin to an employee. Stated that the school benefited from his help and exercised control over the student. Found that the school was vicariously liable.

Question 15

When will relationship be akin to employment? The 5 factors in Cox:

Answer 15

1. Employer more likely to have resources to compensate the claimant and be expected to be insured.
2. Tort results from activity undertaken by employee.
3. Activity is likely be part of business activity of the employer.
4. By requiring the employee to take on activity, employer created the risk of the tort arising.
5. Employee is under the control of the employer.

Question 16

Wrong doing of a unauthorised action. Rose v Plenty [1976].

Answer 16

Milkmen expressly told not to use children to assist with their milk round. A worker ignored this and a boy who was assisting him was injured. As the milkman was doing his job, it was found that the employer would be vicariously liable, even though they had made the employee aware that this behaviour was forbidden.

Question 16

Wider close connection test. Lister v Wesley Hall.

Answer 16

Warden of a boarding school for vulnerable pupils with behaviour and emotional challenges sexually abused some of the boys. Obviously this was not interpreted as an unauthorised way to do their job that is caring for the students. Nevertheless, the tort was found to be ‘closely connected’ to his role, and this justified the application of vicarious liability.