Vicarious liability Flashcards
what is the purpose of vicarious liability?
it is a way of imposing liability for a torn on someone who did not commit the tort, originally based on the idea that an employer had control over an employee
why do we have vicarious liability?
it allows a victim of tort to receive compensation for any damage suffered. it puts responsibility on the employer to choose appropriate staff and make sure they are trained properly.
The test for vicarious liability:
- was the person alleged to have committed the tort an employee? i.e. independent contractor
- did the employee commit the alleged tort during the course of their employement?
if the answer is yes, they will be able to see both the employer and employee
Yewens v Noakes - the control test:
emoloyer had control over the work and how the work should be done
'’person who is subject to the command of his master as to the manner in which he shall do his work’’.
sets out the control test as a way of defining an employee
Performing Rights Society v Mitchell and Booker
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 employees as the dance hall company had control over the members of the band.
The nature and degree of control can determine an employee
Why has the control test become less effective?
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 the right to control has been changed to actual control, it is no longer possible 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 tests have emerged.
How do you define control?
Lord Thankerton in Short v J W Henderson
- power to select the servant
- the right to control the method of working
- the right to suspend and dismiss
- payment of wages
it 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 Habour Board v Coggins and Griffiths
use control test for borrowed workers
A crane driver had been hired out by his employers, to stevedores who unloaded and loaded ships. By his negligence the driver injured a person in the course of his work. His employers, the harbour board had made a contract which set out that he was the employee of Coggins, but the HB paid his wages and kept the power to sack him. When deciding who was vicariously liable the house of lords decided that:
- the terms in any hire contract of an employee are not decisive
- the permanent 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 hirer may not have any control over how the equipment can be used
the control test can be used when employees are borrowed
Hawley v Luminar
the control test can be used for bouncers operating outside premises
a bouncer who was supplied to nightclubs by a firm of specialist supplies, 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 excercised so much control over the bouncer in how he should do his work. they employed him and were vicariously liable for his actions
Viasystems Ltd v Thermal Transfer
LP: two employers can be responsible
The claimants contract 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 mate, he damaged some ducting that came into contact with a sprinkler which fractured, causing a flood.
It had to be decided whether D2 or 3 were vicariously liable for S’s negligence
The leading authority was Mersey Docks.
There was a long standing assumption, which was not a legal principle that a finding of dual vicarious liability was not possible. The reason for this was that in order to find a temporary employer vicariously liable there would have to be a transfer of employment. The question for the court was, ‘who was entitled and in theory, obligated to control the employees 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.
The intergration or organisation test - where was it established and what is it?
established in stevenson jordan and harrison v macdonald and evans by lord denning
the more the worker is intergrated, the more likely they are an employee
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 still have a contract and pay tax but are not employees
The economic reality or multiple test - case and what?
the courts have recognised that a single test may 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 v minister of pensions and national insurance
Ready Mixed Concrete v Minister of Pension and National Insurance - 3 parts to the test
McKenna J developed a test which set three conditions which had to be met before an employment relationship was identified
- the employee agrees to provide work and skill in return for a wage
- the employee expressly or impliedly accepts that the work will be subject to the control of the employer
- all other considerations in the contract are consistent with there being a contract of employment rather than any other relationship
created the economic reality test
An updated test to the economic reality test:
use this route!
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 completion)
- 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) - economic reality comparison
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 pretyped letters stating ‘I am pleased to accept your offer as a casual as required baiss’. Ms Carmichael and Leese worked when requested and when they were available and chose to work. Sometimes this amount to as much as 25 hours per week, National power deducted their tax and NI but they did not get sick pay or holiday pay. Not an employment, CofA held that it did form a contract
Ferguson v Dawson
On the 19th april, the plaintiff, Ferguson fell fifteen foot from a flat roof on which he was working, he claimed damages for the breach of statutory duty from the defendants, Dawson. there was no guard rail on the flat roof.
The defendants did not make deductions in respect of income tax from the weekly payments to the plaintiffs, nor did they make any payments in respect of insurance contributions; did not have insurance card or his P45.
Issues:
whether the plaintiff was an employee or self employed labour only sub contractor
whether the contract of service or goods
The judges held that the contract between the plaintiff and the D as a contract of service and their relationship was that of master and servant, appeal was dismissed
need to look at arrangements as a whole to decide what the real relationship was
without deduction of income tax and insurance card stamped does not in itself mean a contract of services
Recent developments:
some recent appeal cases have tested if the tortfeasor was an employee
these often did not involve a traditional employment relationships
they also involved claims of historical abuse
E v English Province of Our Lady of charity
was a nun in charge of the childrens home and a visiting priest were employees and whether the bishop of the establishment could be vicariously liable for sexual abuse carried out on the claimant
1. a relationship akin to employment
2. established by a connection between a putative defendant and an ‘actor’ which was sufficiently close
3. so that it was fair and just to impose liability
priest more likely to be an employee than an independent contractor, as his relationship with the Bishop was close enough and similar to that of employee/employer it made it just and fair to impose a duty
JGE v Trustees of the Portsmouth Roman Catholic Trust
The claimant alleged she was SA’d by a roman catholic priest while living in a childrens home. She brought action against the church as a result, C argued that it was not liable for the acts of the priest as he was not an employee, only an office holder following his vocation and not subject to the 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 VL. level of control and supervision exercise and role of priest considered to be important
The catholic Child welfare society v various claimants and the institute of the brothers of the christian church
a group of 170 men alleged SA by their teachers. teachers were members of the Institute, which sent its members to the school as a mission to teach children ‘good and christian life’. they had contracts of employment. Supreme court had to decide whether the Institute could be liable for abuse carried out by its members, school argued the I should share responsibility. The I responded that a body managing a school and employing a brother should be VL, used English province rules
- whether the relationship between the institute and its members were capable of giving rise to VL, and
- Whether the alleged acts of sexual abuse were connected to that relationship to give rise to VL.
Mohammed v WM Morrison Supermarket
using the 3 part test:
a man employed at the defendants petrol station assaulted a customer causing serious injuries. the SC considered the job that had been given to the employee and whether there was a sufficient connection between the employees job and what he did to the customer
employee acting within the field of his employment - at work, in working hours, sufficiently close to him doing his job - vicariously liable
considered the three part test in E v English province
Lord Toulson:
what was the nature of his job
sufficient connection between his job and his wrongful conduct
Cox v Ministry of Justice
some may be considered an employee without a contract
employed in the prison as a catering manager, she was injured by a prisoner who negligently dropped a sack of rice on her back, relationship was similar to that of an employee and employer, SC agreed noting that:
a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business
recognises people do not have a contract and business does not mean in the pursuit of profit
Fletcher v Chancery Supplies Ltd
The claimant, a police officer was riding in his police-issue mountain bike on a cycle lane along a very busy road. T suddenly emerged and collided with the claimant, fell to the floor and suffered leg injuries.
T had been working and was wearing a work polo shirt and boots and had told the officer that they had attempted to cross where his shop is which he gave as his home address, found VL.
cofa: No VL as there was no connection between the job and the harm
Acting in the course of their employment:
the employee needs to be acting in the course of their employment for the employer to be liable. this is subjective
appear to be weighed in favour of the claimant
two possible outcomes:
1. where there is VL because the employee is acting in the course of their employment
2. where there is no VL because the employee is said not to be acting in the course of their employment
