Vicarious Liability

Question 1

What is the definition of vicarious liability?

Answer 1

When a person or organisation is legally responsible for a tort they didn’t commit due to their relationship with the tortfeasor.

Question 2

Who is the defendant?

Answer 2

The person legally responsible for the tortfeasor’s actions (i.e. their employer).

Question 3

Who is the tortfeasor?

Answer 3

The person who actually commits a tort.

Question 4

When does vicarious liability apply?

Answer 4

The one main relationship where it applies is that of employer and employee. In recent years, the courts have extended this to cover relationships akin to that of employer and employee.

Question 5

What is the test to determine if an employer is vicariously liable for the employee’s wrongdoing?

Answer 5

-The tortfeasor was employed by the defendant
-The tort was committed while the tortfeasor was in the course of employment

Question 6

Which case sets out the main issues for determining if someone is an employee or self employed?

Answer 6

Ready Mixed Concrete v Min of Pensions shows the economic reality test
The court decided that the key factors to consider to determine if a person is employed or self employed are:
The worker must agree to provide work in return for a regular wage.
The worker accepts that he will be under the control of the company.
All other contract terms are consistent with the worker being regarded as an employee.

Question 7

What other factors will be considered as part of the multiple/ economic reality test?

Answer 7

-Description of role
-Training by company
-Uniform provided
-Payment of tax and national insurance
-Ownership of tools
-Paid a regular salary
-Flexibility of worker to dictate hours and working for others

Question 8

What happens if an employer lends an employee to another employer?

Answer 8

Mersey Docks and Harbour Board v Coggins and Griffiths. Mersey Docks were still responsible for the actions of the employee as they still had a sufficient degree of control over the crane driver. There is a presumption that the permanent employer will remain vicariously liable unless the contrary can be proved.

Question 9

In which case was the permanent employer not vicariously liable for the lent employee?

Answer 9

Hawley v Luminar Leisure. As the nightclub exercised a lot of control on how the bouncer carried out his work, it should be regarded as the bouncer’s employer.

Question 10

Where was the non-traditional worker not an employee, but a self employed worker?

Answer 10

Barclays Bank v various claimants. The relationship was not akin to employment. The court said we must look at all the details of the relationship. Where it is clear someone is carrying out their own business, they are an independent contractor. Where this is not clear, the criteria from Cox can be used to decide if it is fair, just and reasonable to make the defendant liable.

Question 11

What is the test to determine if the relationship is akin to employee and employer?

Answer 11

Cox v Ministry of Justice. A relationship other than one of employment can give rise to vicarious liability where:
Harm is wrongfully done by an individual who carries out activities as an integral part of the defendant’s business rather than for the benefit of someone else and,
The risk of harm was created by the defendant giving the individual those activities.

Question 12

What does in the course of employment mean?

Answer 12

Either the wrongful act was authorised by the employer or the wrongful act was unauthorised but the act was so closely connected to the work authorised by the employer.

Question 13

What is the legal principle from Morrisons (2020)?

Answer 13

We should look at what the tortfeasor was authorised to do and what the tortfeasor actually did in the case. Do these things have a close enough connection that it’s fair to say it was done during the ordinary course of employment? (In this case, T was acting purely for personal reasons not to further the employer’s business).

Question 14

Which case is a criminal example of acting in the course of employment?

Answer 14

Mohamud v Morrisons. Here the crime took place while T was working on D’s premises. It was a part of T’s job to interact with customers and the argument was linked to the business. Therefore, the wrongdoing was committed in the course of employment.

Question 15

Which case is a criminal example of actions not done in the course of employment?

Answer 15

N v CC of Merseyside. The police force weren’t vicariously liable because T was acting for personal reasons when picking up the vulnerable woman after his shift had finished; it isn’t fair to say that his acts were done in the ordinary course of employment.

Question 16

Which case is a non criminal example of acts not done in the course of employment?

Answer 16

Twine v Beans Express. D was not vicariously liable as the driver wasn’t doing his job when giving C’s husband a lift. The driver was on a ‘frolic of his own’.

Question 17

Which case is a non criminal example of acts done in the course of employment?

Answer 17

Rose v Plenty. D was still liable because the wrongdoing had occurred whilst the driver was still carrying out his work and the employer benefited from the boy’s work.

Question 18

Which Act allows employers to reclaim the damages they have paid to the claimant from the tortfeasor?

Answer 18

The Civil Liability (Contribution Act) 1978.

Question 19

Why is the Civil Liability (Contribution Act) 1978 rarely used in practice?

Answer 19

-The tortfeasor probably has no money
-Employers need insurance which would likely pay for this anyway
-Could create bad publicity for the business and no one would want to work for an employer which sues their employees

Question 20

What is eval point no1?

Answer 20

Barclay’s Bank shows deciding if someone has a relationship similar enough to employment should look at all details and is a very broad test. This is positive because it creates flexibility and means the courts can ensure fairness is achieved for either party when a more rigid test may lead to absurdity (like in Cox). However, having such a broad test makes it hard to know when exactly a claim of VL is likely to succeed. This makes the law very uncertain, and is why so many cases have been appealed all the way to the Supreme Court in recent years. Consequently, it may be hard to know if the law is fair on either party.

Question 21

What is eval point no2?

Answer 21

Vicarious liability increases the odds that the claimant will be compensated. This is fair because the company benefit from their employee’s work; have more money to pay; and can get insurance. Therefore providing compensation for their employee’s wrongdoing may be fair, when the alternative is C being forced to sue someone (T) who has no money. On the other hand, this can be unfair if a company has taken all reasonable steps to select and train their employees properly, as they will still be liable despite not doing anything wrong themselves. Therefore this may not be very fair on the employer, and is again in favour of the claimant.

Question 22

What is eval point no3?

Answer 22

The fact that D can be liable for the negligence of its employees should encourage higher standards and deter poor expectations. This is positive as employers will take extra care to make sure their employees do not carry out their roles in dangerous ways, which should make safety standards higher. However, in the modern age many employees work from home or travel, making it hard for employers to effectively control their employee’s behaviour anyway; and even expressly forbidden acts can still lead to liability (eg. Rose v Plenty). Therefore this may not really be fair in the modern age.

Question 23

What is eval point no4?

Answer 23

The Civil Liability (Contribution) Act 1978 allows employers to reclaim damages paid to a claimant from their employee. This could be fair in cases where employers have been very careful and did not truly deserve to be sued and lose their money. However, it goes against the very reasons that VL exists: that the employee probably does not have enough money to pay (especially if their actions were criminal and so they are now in prison with no income). Consequently, it is hard to say VL is fair on anybody if it can be so easily undermined by this Act.