Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

an employer can be vicariously liable for wrongful acts by an employee in the course and scope of their employment

it is not a tort.

Question 2

how is this different from employer’s liability?

Answer 2

• employer’s liability is a personal liability to the employee, this stems from the fact the employer themselves has been negligent.
• VL is a secondary liability because it derives from a tort committed by the employer’s employee. This is therefore a much wider concept as an employer owes a duty to the wider public

Question 3

when an employee has been negligent, what claims might the claimant pursue?

Answer 3

o Claim 1 > C’s claim in the tort of negligence against the employee
o Claim 2 > C’s claim against the employer under the principle of VL. C can sue the employer, the employee or both of them (in that they would be jointly liable)

Question 4

what are the requirements for vicarious liability?

Answer 4

o The worker must be an employee (or in a relationship akin to employment)
o The employee must commit a tort and this tort causes harm to C
o The employee must commit the tort in the court of their employment

Question 5

explain the ‘worker must be an employee’ limb

Answer 5

• usually be straightforward to establish i.e. there will be a contract of employment.
• Must ensure the individual is not an independent contractor (“IC”). If they are, then they will not be an employee and the the employer cannot be VL for any torts they commit

Question 6

what factors should you look for to determine if they are an employee?

Answer 6

o They only undertake work for the employer (an IC would undertake services for lots of people)
o They are paid a wage by the employer (an IC would typically get one lump payment for work undertaken)
o It is the employer than is in business, as opposed to the individual in question (an IC would be the one in business, not an employee)

Question 7

what test is used to determine if there is a relationship of employment or akin to employment?

Answer 7

• Various Claimants v Catholic Child Welfare Society (2012):
  o The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insurance against such liability;
  o The tort was committed as a result of activity being taken by the employee on behalf of the employer;
  o The activity is likely to be part of the business activity of the employer;
  o The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee;
  o The employee will have been under the control of the employer

Question 8

explain the ‘employee must have committed the tort’ limb

Answer 8

the employee must have committed the tort i.e. negligence, trespass, battery etc

Question 9

what are the types of acts which may have been committed in the course of employment

Answer 9

o A wrongful act that was authorised
o Wrongful and unauthorised modes of carrying out an authorised act
o Acts expressly prohibited by the employer
o Intentional acts

Question 10

give an example of a ‘wrongful act that was authorised’

Answer 10

Poland v Parr (1926) - An off-duty employee pushes a thief he sees stealing from his employer’s market stall. The court held the employer was VL, as the employee had implied permission to protect the employer’s stall.

Warren v Henleys (1948) an employee was insulted by a customer and then punched them in the face. This was a personal retaliation and not in the course of employment.

Question 11

give an example of ‘wrongful and unauthorised modes of carrying out an authorised act’

Answer 11

Example 1  an oil tanker driver smokes a cigarette while unloading a tanker of oil. He throws his cigarette which causes a file. This is likely to be within the course of employment. He is doing an authorised act (unloading oil) in an authorised way (while smoking)

Example 2  An employee in high spirits and larking about loses control of a wheelbarrow he is pushing, which then collides with a colleague injuring him. This is likely to be in the course of employment.

Question 12

explain ‘act expressly prohibited by the employer’

Give an examples

Answer 12

Even if the act in question has been expressly prohibited by the employer, the employer may still be found to be VL for it, if the act furthers the employer’s business, then it is likely to be held to be done in the course of employment

o Rose v Plenty (1976)  C was a 13 y/o boy. D was a milkman. D engaged C to assist with the delivery of milk, despite this being expressly forbidden by the employer. C was injured by D’s negligent driving of the milk float. The Court of Appeal held the employer was VL as the prohibited act was done to further the employer’s business.

o Twine v Beans (1946)  C was a deceased hitchhiker. D was a van driver. D gave C a lift, despite being expressly forbidden by his employer. C died due to D’s negligent driving. It was held this was outside the course of employment. The giving of the lift did not further the employer’s business.

Question 13

explain ‘intentional torts’

Answer 13

• An employer may be VL for an intentional tort committed by an employer, if there is a close connection between the tort and the work the employee is employed to do.

Question 14

re: intentional torts

what is the ‘close connection’ principle? What is another name for this?

Answer 14

also called the Lister principle

The court must ask:
o what function / field of activities has the employee been entrusted with (i.e. what was the nature of their job);
o Whether there is a sufficient connection between the employee’s position and the wrongful conduct;
o It is fair and just for the employer to be held liable

Question 15

what is a ‘frolic’ case?

Answer 15

• If an employee has committed outside of their course of their employment, this will often said to be ‘on a frolic of their own’

Question 16

what is an example of a frolic case?

Answer 16

Lots of these cases involve employees who deviate from an authorised route permitted by their employer and then commit a tort.

Question 17

what are the key questions to consider in a frolic case?

Answer 17

o To what extent did the employee deviate from the authorised route? Is it a major departure (making it a new journey) or a minor detour (a new route)?

o What was the purpose of the departure from the authorised route? If the employee was going about their employer’s business at the time of the accident, this will not be a ‘frolic’ and the employer will be VL

The greater the degree of departure on both points, the more likely the employee is to be deemed ‘on a frolic of their own’

Question 18

if an employer (or their insurance company) is found to be liable, what action can they take?

Answer 18

There is a common law right to claim an indemnity from the person who committed the tort. Or, if the employer and employee are jointly liable, then a contribution under the Civil Liability Act.

However, employers’ liability insurers have entered into an informal agreement not to pursue such claims unless there is evidence of collusion or wilful misconduct on the part of the employee