Vicarious liability

Question 1

what is vicarious liability?

Answer 1

The tortfeasor has a special relationship with the defendant - the tortfeasor is not being sued, its the organisation/employer.

Question 2

how has the law changed int his area?

Answer 2

scope of liability has expanded to include relationships akin to employer-employee. Pro-claim.

Question 3

how strict is liability here?

Answer 3

Strict, no default liability as it is a controversial area. D does not have to be blameworthy. More concerned with practical realities of claimant’s ability to receive compensation.

Question 4

which case puts forward policy justifications and what are they?

Answer 4

Christian Brothers and Cox v MOJ.

Allocation of economic benefits and risks – because employers economically benefit from the performance of an employees task, they should also should some of that risk.

Employers typically have deep pockets – this spreads he financial burden in society. If the burden is placed solely on the tortfeasor, they could go bankrupt and the claimant would not see proper compensation.

Loss distribution (i.e. insurance can covet this) - employers are likely to have employee insurance.Which case lsits policy jusitfications and what are they?

Encouragement of good working practices – employee is often under the control of the employer, and as it encourages employers to be vigilant.

Question 5

what is the decision framework:

Answer 5

stage 1: There must be an employer-employee relationship (or one akin to it) between the defendant and the tortfeasor.​

​
stage 2
The employee must have committed a tort; and​

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stage 3
The tort must be committed while the employee was acting in the course of their employment.​

​

Question 6

Which workers are diffecutl to establish an employer/employee relationship for?

Answer 6

independent contractors/self employment/ agency workers

Question 7

Which employer/employee relationship shave been distinguished between by the courts?

Answer 7

employees and independent contractors
- Barclays Bank v Various claimants.

Question 8

Is there a test for stage 1?

Answer 8

no single test - Market investigations Ltd

Question 9

What was the historical stance on stage 1?

Answer 9

Control test:

How much ‘control’ does the defendant have over the ‘employee’? See eg. Stephenson Jordan & Harrison Ltd

Question 10

what other releavnt factors were considered in stage 1?

Answer 10

JGE v the trustees if the portsmouth RCatholic Dioscean trust

To what extent is the worker managed or accountable to the employer

The centrality of their actions tot he firm

Integration of their activities to the business?

Question 11

What is dual employment?

Answer 11

A worker is hired out to another company.

Question 12

what test is used for stage one in the case of dual employment?

Answer 12

The control test has still been held to be applicable in Mersey Docks v Coggins and Griffith.
HArbour authority = true employers

Question 13

what is the general rule of dual employment?

Answer 13

Original employer (permanent) will remain reliable unless the heavy burden is met of showing that employment has been transferred to the temporary employer.

Question 14

What Q was asked by the court in Hawlrey v Luminar Leisure?

Answer 14

who was entitle and therefore obliged to control the door stewards acts so as to prevent it (who was in control of him)? Nightclub was held to be liable.w

Question 15

which factors were the court influenced gy in Hawley v Luminar leisure?

Answer 15

Bouncer didn’t have special skill, the club could have employed someone directly and that’s on them.

When the bouncer committed the tort, they were implicitly acting on the manager’s authority.

Bouncer was wearing uniform supplied by the club.c

Question 16

can two employers be liable at the same time?

Answer 16

Yes - Viasystems

Question 17

what is the modern approach for establishing an employee/employer relationship?

Answer 17

Christian Brothers:
Held: yes, both could be held vicariously liable. In reaching this conclusion the court held that it was not necessary to show that the brothers were employees of the institute at the time of the abuse but rather, it was enough that there was a relationship akin to employment here.

Question 18

what were th epolicy jsutifications in christian brothers?

Answer 18

Lord Phillips:
The employer is more likely to have the means to compensate the victim

The tort will have been committed as a result of the activity done by the employee on behalf of the employer

Employee’s activity is part of the business activity conducted by the employer.

They take the risk of the tort.

The employer would have been under the control of the employer to a certain extent.

Question 19

so whatis the current suffiecency for stage one?

Answer 19

it is enough thtat the relationship was one akin to employment.

Question 20

hich case did christian brothers rely on in their judgement?

Answer 20

JGE v Portsmouth RC Dioscen trust: Oath brothers gave constituted something akin ot employment.

Question 21

Which case confirmed christian brothers?

Answer 21

Cox v Ministry of Justice:
this relationship was deemed akin ot employment even though he wasnt working on a voluntary basis

and…

Armes v NOttingham:
relationship akin to employment between a local authority who were responsible for putting children in care, and the foster parents who had taken the children in.

And…

Barclays bank v Various claimants:
no VL for independent conyractors

Question 22

Whcih key case clarified the tests that we have? What were the judgements?

Answer 22

Barry Congregatio of Jehovah witnesses v BXB:
CA found in her favour – stated there was vicarious liability and then the trustees appealed to the SC.

SC didn’t agree – they allowed the appeal – the Jehovah’s witness association were not liable. The correct defendant was the charity.

Question 23

what features of employment were considered in Barry congregation?

Answer 23

He was carrying out work on behalf of and assigned to him by the organisation

He was performing duties that were integral to the aims/furtherance of their aims

There was an appointment process and they retained the power of removal]

There was a hierarchal structure into which role of an elder fitted.

Question 24

what case established stage two?

Answer 24

Marjowski v Guy and St Thomas NHS Trust

Question 25

Can employers be held for a statutory tort (harassment)?

Answer 25

Marjowski…

yes - no reason to confine to common law wrongs.

Question 26

what are the two approaches in stage 3?

Answer 26

When the conduct is so closely connected with the employment (main test).

Its a risk reasonably incidental to the employer’s business, that is fair and just to hold the employer vicariously liable.

Question 27

what was the old test (stage 3)?

Answer 27

Salmond test: Was the employee’s act a wrongful and unauthorised of doing some act authorised by the master?

Question 28

when was the old test replaced?

Answer 28

Lister v Hesley Hall:
The abuse was inextricably interwoven with him carrying out his duties – Lord Steyn.

Question 29

what are the issues with the close connection test?

Answer 29

Practically problematic. How close do the actions have to be?

Question 30

Where were the issues with the close connection test discussed?

Answer 30

Mohamud v WM Morrison Supermarkets…

Court considered:

The nature of the worker’s job

Was there a sufficient connection between this and the wrongful conduct?

(Policy is also relevant)

Question 31

what did Toulson find in Mohumd v Morrisons?

Answer 31

Part of the petrol station worker’s job was to serve customers. It didn’t matter that he’d left his service desk and pursued the claimant into the forecourt (and his vehicle).​

There was a smooth sequence of events between the tort committed and the worker’s normal job of serving customers at his station.​

It didn’t matter that the worker has a personal motivation for the attack (racist).​

Question 32

Did the smooth sequence test uphold?

Answer 32

No, approach in Mohamud v Morrison’s was departed from in…

WM Morrison v Various Claimants

Question 33

what was the relevant point in WM Morrison v Various Claimants?

Answer 33

Preferred the test set out in Dubai Aluminium – Question? Whether the employees actions were so closely connected wit the acts he was authorised to do that it may fairly and properly be regarded as being done by him while acting in the ordinary course of his employment.

This takes us back to the close connection test.

Question 34

What did horse and rackley state about the departure from Mohamud?

Answer 34

because it means that the personal motivation of employees is relevant to the finding of VL. Contrary to what was said in Mohamud.​

Question 35

what did Barry congregation say about the third limb?

Answer 35

Agreed with the close connection test.
requires a court to consider the link between the wrongful conduct and the tortfeasor’s authorised activities.

Question 36

what about liability of an employer for rough horseplay of an employee?

Answer 36

Chell v Tarmac Cement and Lime ltd:

No VL found due to rough horseplay conducted by employee.

Close connection test was relevant: is it fair, just and reasonable to impose liability

Question 37

why did the close connection test fail in Barry Congregation…

Answer 37

The rape had not been committed while he was carrying out activities as an elder.​

He was abusing his position as a close friend of Mrs B (as oppose to elder)​

he did take off his ‘metaphorical uniform’ when dealing with the congregation​

the close connection test was not satisfied just because ‘but for’ he was an elder, she wouldn’t have continued to be his friend (and then been raped)​

the appalling rape was not an obvious progression of what had gone on before, but was a shocking one-off attack​

the role of his father (asking her to support him as an elder) and the failure of the church to condemn his kissing of her – were not relevant, but merely background considerations. ​

Question 38

What was the approach of barry to the third limb described as ?

Answer 38

Pro-D - It keeps the decision a close eye on this course of employment aspect. The idea behind this is that he wasn’t acting in the course of his quasi-employment during the attack.

Question 39

Case examples relating to close connection test…

Answer 39

weir v constable of merseyside police
maga v birmingham roman catholic archdiocese trustees
Lister/Marjowski
Dubai Aluminium
Bellman v Northern Recruitment