Vicarious Liability

Question 1

What is vicarious liability, and what are its key characteristics?

Answer 1

Vicarious liability is a legal principle where a person (usually an employer) is held liable for torts committed by another (typically an employee).

1. It is a secondary liability: The employer is liable not for their own actions but for the torts of their employee.
2. Joint Liability: The claimant can sue:
   
   • The employee (primarily liable).
   • The employer (vicariously liable).
   • Both of them (jointly liable).
3. The employer’s liability is in addition to, not instead of, the employee’s liability.
   * Example:
   * James, an employee at Watt & Co, negligently injures Ashraf with a drill. Ashraf can sue:
   * James for direct liability.
   * Watt & Co for vicarious liability.
   * Both jointly.
   * Right of Indemnity: Under the Civil Liability
   • Example:
   • James, an employee at Watt & Co, negligently injures Ashraf with a drill. Ashraf can sue:
   • James for direct liability.
   • Watt & Co for vicarious liability.
   • Both jointly.
   • Right of Indemnity: Under the Civil Liability (Contribution) Act 1978, the employer may recover compensation from the employee if misconduct was wilful or collusive.

Question 2

What three elements are required to establish vicarious liability?

Answer 2

To establish vicarious liability, the following three elements must be proven:
1. Employee Relationship:
* There must be a relationship of employment or one akin to employment.
* Independent contractors do not trigger vicarious liability.
2. Employee Committed a Tort:
* The employee must have committed a tortious act (e.g., negligence, battery).
3. Course of Employment:
* The tort must have occurred “in the course of employment”.

• Legal Point: If the employee commits no tort, there is no vicarious liability for the employer.

Question 3

What tests are used to distinguish between an employee and an independent contractor?

Answer 3

1. Control Test:
   
   • Does the employer have control over how the worker performs their duties?
     2. Integration Test:
   • Is the worker integrated into the business (e.g., part of the team) or independent?
     3. Economic Reality Test (Multiple Test):
   • Criteria include:
   • Whether the worker is paid a wage.
   • If the worker bears financial risks (e.g., profits/losses).
   • Whether tools/equipment are supplied by the employer.
   • Case Law:
   • Various Claimants v Catholic Child Welfare Society [2012]: Five factors were used to determine if the relationship was “akin to employment.” These include:
     1. Control by the employer.
     2. Business activity connection.
     3. Risk creation by the employer.
     4. Compensation ability.
     5. Activity for employer’s benefit.
   • Example:
   • Employee: Shop assistants, airline pilots.
   • Independent Contractor: Self-employed electricians, plumbers.

Question 4

What are acts done in the course of employment under vicarious liability?

Answer 4

Acts fall within the course of employment if they are:
1. Wrongful acts authorized by the employer.
2. Wrongful and unauthorized modes of carrying out authorized acts.

*	Case Examples:
*	Poland v Parr [1926]: A worker pushed a thief to protect his employer’s goods. The employer was liable because protecting property was impliedly authorized.
*	Century Insurance v NI Road Transport Board [1942]: A driver smoking while unloading oil caused a fire. Employer liable because the driver was performing his job carelessly.
*	Harrison v Michelin Tyre Co Ltd [1985]: An employee’s careless larking about with a wheelbarrow caused injury. Employer liable because the employee was doing their job improperly.

Question 5

Can an employer be vicariously liable for prohibited acts?

Answer 5

• A prohibited act can still fall within the course of employment if it furthers the employer’s business.
  
  • Key Cases:
  • Rose v Plenty [1976]:
  • A milkman hired a boy to help with deliveries despite a prohibition. Employer liable as the act furthered the business.
  • Twine v Bean’s Express [1946]:
  • A van driver gave a hitchhiker a lift despite a prohibition. Employer not liable as the act did not further the business.
  • Rule: The prohibition must relate to the manner of the work (e.g., Rose), not the scope of employment (e.g., Twine).

Question 6

How do courts decide whether an employer is vicariously liable for an intentional tort?

Answer 6

• General Rule: Employers are not liable for intentional acts unless there is a close connection between the act and the employee’s role.
  
  • Key Cases:
  • Lister v Hesley Hall Ltd [2001]:
  • A warden sexually abused children while caring for them. The employer was liable because the acts were closely connected to his job.
  • Mohamud v WM Morrison Supermarkets [2016]:
  • A supermarket employee assaulted a customer. The court found a close connection because the assault occurred during working hours while engaging with the customer.

Question 7

When is an employee “on a frolic of their own”?

Answer 7

An employee is acting outside their course of employment if they significantly deviate from their employer’s instructions.
* Test:
1. Geographical Deviation: How far did they depart from the authorized route/task?
2. Purpose: Were they still acting for their employer’s business?
* Examples:
* Case 1: A driver makes a minor deviation to stop for lunch.
* Result: Within employment (incidental).
* Case 2: A driver visits a relative instead of completing deliveries.
* Result: On a “frolic of their own” and outside employment.

Question 8

What is the employer’s right of indemnity under vicarious liability?

Answer 8

• If an employer pays compensation under vicarious liability, they have a right to recover the amount from the employee.
  
  • Authority:
  • Lister v Romford Ice & Cold Storage Co Ltd [1957]: Common law right of indemnity.
  • Civil Liability (Contribution) Act 1978: Allows recovery in cases of joint liability.
  • Practical Limitations:
  • Employers’ liability insurers usually do not pursue indemnity claims unless there is evidence of:
  • Collusion.
  • Wilful misconduct.
  • Purpose: Ensures fairness when an employer is forced to pay for the employee’s wrongful acts.

Question 9

What are the steps to determine whether an employer is vicariously liable for the tort committed by their employee?

Answer 9

To determine vicarious liability, follow these key steps:
1. Was the worker an employee (or in a relationship akin to employment)?
* NO → The employer is not vicariously liable.
* YES → Proceed to the next step.
2. Did the employee commit a tort?
* NO → The employer is not vicariously liable.
* YES → Proceed to assess the course of employment.
3. Was the tort committed in the course of employment?
* Consider any of the following to determine this:
a. Wrongful Act Authorized by the Employer:
* The employer is liable if the act was wrongful but directly connected to the employee’s job.
b. Unauthorised Mode of Carrying Out an Authorised Act:
* The act is unauthorized, but it was performed as part of the employee’s duty.
* Example: Century Insurance v NI Road Transport Board – careless unloading while smoking.
c. Expressly Prohibited Act That Furthered the Employer’s Business:
* If the employee disobeyed instructions but the act furthered the employer’s business, the employer is liable.
* Example: Rose v Plenty – prohibited help but still advanced deliveries.
d. Intentional Torts with a Close Connection:
* The employee committed an intentional tort, but there is a close connection between the tort and their duties.
* Case: Lister v Hesley Hall Ltd – systematic abuse by a warden.
* Test: Is it fair and just to impose liability based on the connection?
e. Employee Deviation from Employer Instructions:
* If the employee deviated but was still performing work for the employer, they may be liable.
* Minor deviations likely fall within employment; significant deviations may not.
4. Conclusion:
* If YES to any of the above under “course of employment,” the employer is vicariously liable for the tort committed by their employee.
* If NO to all, the employer is not liable.

*	Vicarious liability is secondary liability: Employers are responsible for their employees’ torts if the requirements above are met.
*	This principle balances fairness between injured claimants and businesses.