Vicarious liability Flashcards
What is the test for vicarious liability ?
Was the person alleged to have committed the tort an employee?
Generally there is no liability for the tort committed by an independent contractor who is legally responsible for their own actions .
Did the employee commit the alleged tort during the course of their employment ?
If the answer is yes to both these questions then the defendant may be able to sue both the employee and the employer.
Testing employee status
What was the old test :
A contract of service - an employee
A contract of services - independent contractor
Yewens v noakes 1880
There was a statutory exception for premises which were occupied by a servant or person occupying the premises for the protection therof. A man and his family occupied a number of rooms within an offfice building on the alleged basis that he was the caretaker of the building owner. The man was a clerk who was paid a salary of 150 pounds per annum.
The question arose as to whether the man constituted an employee of the building owner for the purposes of exempting the premises from statutory tax duties.
The court of appeal held that an employee, or a servant to adopt the court nomenclature, is defined as a person who is subject to the command of his master as to the manner in which he shall do his work. On the facts of the case the court held that the Man was not a servant or an employee of the building owner as the owner had no right to control the man’s work and manner in which it was done . The man earned a salary of 150 pounds per annum in his separate role as a clerk and merely enjoyed residence of the building with his family members . Thus he did not constitute an employee of the building owner for tax purposes.
Legal principle sets out the control test as a way of defining an employee
Performing rights society v Mitchell and booker 1924
Performing rights society ltd Mitchell and booker Palau’s de Danse ltd 1924 an agreement between a band and the dance hall company that determined that the company has the right to control over the type of music that is to be performed by the band and how they will behave on their performance. Here , the members of the band are said to be employeees as the dance hall company had control over the members of the band.
Legal principle the nature and degree of control can determine an employee. nowadays employees are more skilled and professional and the size and complexity of businesses has increased. The control test has therefore become less effective and when right to control has been changed to actual control it is no longer posssible to draw the correct distinctions by only using a single test. The control test is also said to be unsuitable for employees who are highly skilled therefore other test have emerged.
How do you define control?
Lord Thankerton in short v J W Henderson Ltd 1946
- power to select the servant
- the right to control the method of working
- the right to suspend and dismiss
-payment of wages
In most modern cases it can be impossible to use this test, however, it can still be used in cases involving borrowed workers.
Mersey docks and harbour Board v cogggins and Griffith Liverpool Ltd 1947
A crane driver had been hired out by his employers, the harbour board , to stevedores who unloaded and loaded the ships . By his negligence the driver injured the person in the course of his work. His employers, the harbour board, had made a contract which set out that he was employee of dogging, but the harbour board paid his wages and kept the power to sack him. When decideding who was vicariously liable the House of Lords decided that
- the terms in any hire contract of an employee are not decisive.
- the permenant employer is presumed liable unless the contrary can be proved and
- if an employee alone is hired out there can be an inference that the hirer becomes the employer. If the employee is hired out with equipment, the inference is not as strong as the hired may not have any control over how the equipment can be used. Legal principle
The control test can be used when employees and “ borrowed “
Hawley v Luminar leisure 2006
A bouncer, who was supplied to nightclubs by a firm of specialist suppliers, assaulted a customer outside the defendants club. The suppliers went into liquidation so the injured claimant sued the club. The court decided that as the club exercised so much control over the bouncer in how he should do his work, they employed him and were vicariously liable for his actions.
Legal principle the control test can be used for bouncer operating outside premises
Viasystems Tyneside Ltd v thermal transfers northern Ltd 2005
The claimants contracted with d1 to install air conditioning in their factory. D1 subcontracted some work to D2. D2 agreed with D3 to provide fitters and fitters mates on a labour only basis. S was a fitters mates. He damaged some ducting that came into contract with a sprinkler which fractured causing a flood.
It had to be decided whether d2 or d 3 or both were vicariously liable for s ‘ s negligence. This year.The leading authority was Mersey docks and harbour board.
There was a long standing assumption which was not a legs, principle that a finding of dual vicarious liability was not possible . The reason for this was that in order to find a temporary employee vicariously liable there would have to be a transfer of employment. The question for the court was : whose is entitled and in theory obligated to control the employeees negligence act in order to prevent it ? There could be some cases in which the sensible answer would be each of the two employers so d2 and d3 were both liable. Their responsibility was equal so they had to pay 50% of the claim each.
Legal principle, two employers can be responsible for an employees negligence
The intergration or organisation test
Established in Stevenson Jordan and Harrison Ltd v macdonald and Evan’s 1952 by Lord denning.
A worker will be an employee if they are fully integrated into the business
If their work is only as accessory they will not be classed as an employee.
This still has problems for example teachers who are examiners will have a contract and pay tax and nationals insurance but the contract will specify that the teachers are not employees.
The economic reality or multiple test
The courts have recognised that a single test mag be confusing and not give consistent results.
The economic reality test provides an answer based on several aspects that indicate employment or self employment
This was established in ready mixed concrete south east Ltd v minister of pensions and national insurance 1968
Ready mixed concrete south east Ltd v minister of pensions and national insurance 1968
The case involved the payment of national insurance contributions. Vehicles were brought by drivers on hire purchase from the company and they had to be painted in the company colours ad showing the company logo. Driver had to maintain the vehicles and were only allowed to use them on company business. Working hours were flexible and pay was subject to an annual minimum rate according to the amount of concrete hauled. In the event of an accident should the company be liable or should the driver.
Mc Kenny j developed a test which set three conditions which had to be met before an employment relationship was identified. What were the three conditions :
1 the employee agrees to provide work and skill in return for a wage
2 the employee expressly or implied accepts that the work will be subject to the control of the employer
3 all other considerations in the contract are consistent with their being a contract of employment rather than any other relationship.
Taking these tests into account , the result was that the drivers were not employees.
An updated test
The test now includes several factors that can be considered and weighted according to their significance these might include:
- The ownership of any tools or plant used in the work
- the method of payment monthly or on completion of work
- the payment of tax and national insurance by the employer
- if there is a job description
- any independence in doing the job
Carmichael v National power 2001
Ms Carmichael and ms Leese applied to work as power station tour guides. The advertisement said “ employment will be on a casual as required basis “ at an hourly rate of pay. Following interview , they were sent letters offering them employment on a casual as required basis and they replied on pre-typed letters stating “ I am pleased to accept your offer of employment as a station guide on casual as required basis. Ms Carmichael and Ms Leese worked when requested and when they were available and chose to work. Sometimes this amounted as much as 25 hours a week. National power deducted their tax and national insurance and they had company uniforms. They did not receive sick pay or holiday pay this was prior to the working time regulations 1998 and we’re not in the pension scheme. They were not covered by the company’s disciplinary or grievance procedures. They challenged in an employment tribunal the fact they had not been given particulars of employment under section one of the employments rights act 1996 thereby challenging their employment status. The employment tribunal held that they were not employees and EAT agreed. The court of appeal allowed the appeal on the consideration of the exchange of letters between the parties , which in the court of appeals view formed a contract of employment.
Ferguson v Dawson 1976
On the 19th April 1972 the plaintiff, Mr Micheal Ferguson, fell some 15 feet from a flat roof on which he was working. He claimed damages for breach of statutory duty from the defendants , John Dawson and partners contractors Ltd . There was no guard rail on the flat roofs.
The defendants did not make deductions in respect of income tax from the weekly payments to the plaintiff ; nor did they make any payments in respect of insurance contributions. They did not have his insurance card. Nor his tax for, known as p45.
The judges held that the contract between the plaintiff and the defendant as a contract of service and their relationship was that master and servant like in control test. The defendants appeal was dismissed.
The judge rejected the defendant’s contention that the only agreement between the parties was that the plaintiff was a self employed labour only sub contractor. The judge held that there were other terms of the contract and that the court must look, at the arrangements as a whole to decide what the real relationship was. The judge applied the tests and criteria suggested in the authorities and concluded that the reality of the relationship was an employer and employee a contract of service. The judge held that the mere fact that under the contract the workman receives his remuneration without the deductions of paye income tax and without having his insurance card stamped by the other party does not in itself necessarily, at least involve the conclusion in law that it is the contract of service. The judge was in the opinion that the defendants could properly use independent sub contractors. The judge dismissed the appeal.
What were the issues in Ferguson v Dawson
Where the plaintiff was an employee or self employed labour- only sub - contractor
Whether the contract between the plaintiff and the defendants was a contract of service or a contract for services
What are some recent developments ?
Some recent appeal cases have tested if the tortfeasor was an employee
These often did not involve a traditional employment relationship
- they also often involved claimants of historic abuse
E v English province of our lady of charity 2012
The question in this case was whether a nun in charge of a children’s home and a visiting priest were employees and whether the bishop of the diocese could be vicariously liable for sexual abuse carried out on the claimant.
What factors were court of appeal looking for in e v English province of our lady of charity 2012
1 a relationship akin to employment
2 which was established by a connection between a putative defendant and a actor which was sufficiently close so that
3 it was fair and just to impose liability on the defendant
What several questions could be considered which might point to vicarious liability :
1 control by the employer of the employee
2 control by the contractor of him/ herself
3 the organisation test
4 the integration test
5 the entrepreneur test whether the person was in business on his her account
Applying such tests, the majority of the court decided that the priest was more like and employee than an independent contractor. As his relationship with the bishop was close and and similar to that of employer/ employee it made it just and fair to impose vicarious liability.
JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust 2012
The claimant alleged that, when she was very young, she was sexually abused and raped by a Roman Catholic priest while living in a children’s home. She brought the action against the church for the acts of the priest. The church argued that it was not liable for the acts of the priest as he 2as not an employee , only an office holder following his vocation and not subject level of control required to demonstrate an employment relationship.
The court of appeal held that, even though the priest was not an employee of the church, his relationship with the church was sufficiently close to one of employment that it was fair and just to hold the church vicariously liable for damages as a result of his conduct. Factors such as the level of control and supervision exercised by the church and the role of the priest within the structure of the church were considered to be important.
The catholic child welfare society v various claimants fc and the institute of the brothers of the Christian schools 2012
A group of 170 men alleged that they were physically and sexually abused by their teachers while living at a school for boys in need of care. The teachers were members of the brothers of the Christian school the institute a religious organisation which sents its members to the school as part of its mission to teach children good and Christian life . The members had contracts of employment with the school. The Supreme Court had to decide whether the institution could be held liable for abuse carried out by its members. The school argued that the institution should share responsibility for the acts of its members. The institute responded that only a body managing school and employing a brother in that school as a teacher should be vicariously liable for his wrongdoing. The court held that the institute could be held liable for the alleged sexual abuse committted by its members because the relationship between the institute and its members were sufficiently akin to one of employer and employee, and there was a close connection between that relationship and the sexual abuse allegedly committted by the brothers while teaching in the school.
The court examined the school’s claim against the institute under a two part test ;
1 whether the relationship between the insititute and its members were capable of giving rise to vicarious liability
2 whether the alleged acts of sexual abuse were connected to that relationship in such a way as to give rise to vicarious liability.
The court held that the first element of vicarious liability can be based on a relationship that, while not arising under a formal contract of employment, is sufficiently akin to that between an employer and employee . The court explained that the institutes relationship with its members was sufficiently close to one of employment based on the hierarchical structure
