Vicarious liability Flashcards
Market Investigations Ltd v Social Security Minister [1969] 2 QB 173
VL - contract if services or for services
Coke J
‘“Is the person who has engaged himself to perform these services performing them as a person in business on his own account?”
If the answer to that question is “yes,” then the contract is a contract for services. If the answer is “no,” then the contract is a contract of service.”
No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases.’
It was held that the worker was employed as it was the market research company and the arrangement bore no resemblance to that of a self-employed person in business on their own account. The worker had little or no control over what she did on a day to day basis (she was told what to do and how to do it).
The test for contract is a substantive test rather than a textual analysis of what the contract says
Held: it was an employee, notwistanding that she could choose how and when to do the work.
A market research company appealed against a DSS ruling that one of its workers should be treated as an employee, contending that she was self-employed. part-time and had a series of contract. Able to choose time of work but the company controlled how it was conducted but he was entitled to work for others.
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1
VL - lending employees
Held: Permanent employer (D1) was still liable for tort.
Laid down the test of control over the method of performance for determining whether there is a change in relationship of employment (note: this was later rejected in Christian Brothers)
Harbour Authority (D1) provided crane drivers to a stevedores company (D2), with the contract stipulating that the crane drivers are servants (employees) to D2, although the crane drivers was paid and liable to be dismissed by D1
One of the crane drivers injured C by negligently driving the crane
C sued both D1 and D2 for damages in negligence
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151
VL - dual liability
A point on damages: (4) Dual vicarious liability was legally possible and both D2 and D3 were vicariously liable for the mate’s negligence. (5) If the relevant relationships led to the conclusion of dual control over the employee, it was likely that the measure of control was equal. That was so in the instant case and, applying the Civil Liability (Contribution) Act 1978 , the just and equitable division of responsibility between D2 and D3 was equal. D2 and D3 should contribute 50 per cent of their several liabilities to C.
May LJ:
[49] ‘If on the facts of a particular case, the core question is who was entitled, and in theory obliged, to control the employee’s relevant negligent act so as to prevent it, there will be some cases in which the sensible answer would be each of two “employers”. The present is such a case. In my judgment, dual vicarious liability should be a legal possibility, and I would hold that it is.’ = don’t have to focus on a single party to be VL.
Rix LJ:
[77] ‘if consideration is given to the function and purposes of the doctrine of vicarious liability, then the possibility of dual responsibility provides a coherent solution to the problem of the borrowed employee. Both employers are using the employee for the purposes of their business. Both have a general responsibility to select their personnel with care and to encourage and control the careful execution of their employees’ duties, and both fall within the practical policy of the law which looks in general to the employer to organise his affairs in such a way as to make it fair, just and convenient for him to bear the risk of his employees’ negligence.’
The UK Court of Appeal held both sub-contractors (D2 and D3) to be vicariously liable on the basis that both of them were in a position of control.
Held, allowing the appeal, that (1) correctly formulated, the question to determine vicarious liability was who was entitled to exercise control over the relevant act or operation of the fitter’s mate. To look for a transfer of a contract of employment was distracting and misleading. The fitter’s mate’s employment was not transferred. The inquiry should concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it: who was entitled and obliged to give orders as to how the work should or should not be done. Entire and absolute control was not a necessary precondition of vicarious liability,
The appellant (D3) appealed against the decision that it was vicariously liable for the negligence of a fitter’s mate who had caused a flood at a factory. The claimant (C) had engaged the first defendant (D1) to install air conditioning in C’s factory. D1 had subcontracted ducting work to the second defendant (D2) and D2 had contracted with D3 to provide fitters and fitters’ mates on a labour only basis. A fitter’s mate supplied by D3, who was working with a fitter supplied by D3, both under the supervision of a fitter contracted to D2, negligently caused a flood. The judge determined that D3 and not D2 was vicariously liable for the negligence of the fitter’s mate. The issue on appeal was whether both D2 and D3, rather than only one of them, could be vicariously liable for the negligence of the fitter’s mate. D3 submitted that dual vicarious liability was not a legal possibility and that D2 alone should be liable. D2 submitted that D3 alone should be liable but that dual vicarious liability was a legal possibility.
Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319
VL - relationship
Nota bene:
The Supreme Court reformulated the test for vicarious liability. To establish vicarious liability, the claimant must now show that:
There is a relationship between the tortfeasor and employer which is capable of giving rise to vicarious liability. This is not a fixed category, and includes employees and relationships ‘akin to contract’;
There is a sufficiently close connection between that relationship and the tort.
Decision
The Supreme Court held in favour of the claimants. The relationship between the Institute and the brothers could give rise to vicarious liability: it was ‘akin to contract’. The torts were sufficiently connected to that relationship.
The defendant was the board of managers for a school. The school was connected to an unincorporated association which was aimed at bringing religious education to children (‘the Institute’). To this end, the Institute provided the school with lay brothers from their organisation as teachers and other school staff. The school employed the lay brothers. Several of these brothers sexually abused the claimants. The defendant was held vicariously liable at trial for the torts committed by the lay brothers.
The claimants argued on appeal that the Institute was also vicariously liable. The Institute was arranged in a corporate-style hierarchy. However, the lay brothers were not the Institute’s employees and had no contractual relationship with the Institute. However, the brothers had a moral obligation to obey the Institute and in practice it exercised a great deal of control over their lives. For example, all the brothers’ earnings were given to the Institute. The Institute saw to the brothers’ needs using their funds. The Institute were heavily involved in running the school, since a senior brother was normally provided as the school’s headmaster.
The Trustees of the Portsmouth Roman Catholic Diocesan Trust v JGE [2012] EWCA Civ 938
VL - akin to employment
appeal dismissed.
= akin to employment situation despite the absence of a contract of employment, direct control, and payment of wages
J alleged that she had been sexually abused and raped by B, a parish priest who then went on to sexually abuse children living in a children’s home administered by his diocese. The judge below acknowledged that vicarious liability involved the synthesis of two elements, the first stage being the relationship between the employer and the employee and the second being whether the act was within the scope of the employment. In relation to the first stage, it was accepted that a priest was not an employee, but that vicarious liability could be founded on a relationship other than employment (direct control, paymnent of wages). The issue was whether the law could be extended to relationships akin to employment; whether the close connection test was appropriate; and whether it was enough that the result was just and fair.
Morgans v Launchbury [1973] AC 127
VL - akint to employment
Lord Wilberforce:
‘in order to fix vicarious liability upon the owner of a car in such a case as the present it must be shown that the driver was using it for the owner’s purposes, under delegation of a task or duty.’
Lord Salmon at 148:
‘mere permission to drive is not enough to create vicarious responsibility for negligence.’
Held: VL was not established on these facts. He was no longer on the delegation of the task. They must carry out a task for you, as you asked
Facts: car shared between husband and wife. The husband had promised his wife that he would ask his friend to drove him home when he is drunk. ask a friend to drive him home. The friend brought him to other pubs and offered other ppl a lift, rather than driving him home went the other way. Accident – husband and driver dies, C’s (other passengers) sued the wife.
Cox v Ministry of Justice
VL-akin to employment
confirms that the akin to employment category is not limited to abuse cases = more expansive view.
Holding: The Supreme Court held in favour of the claimant. The defendant was vicariously liable for the prisoner’s negligence. This was because the prisoners worked for the defendant’s benefit, which created the risk of negligence. Confirms that akin to employment is not limited to abuse cases.
Principle:
- A relationship can give rise to vicarious liability even if there is no employment contract between the defendant and the primary tortfeasor. An appropriate relationship exists where the primary tortfeasor ‘carries on activities as an integral part of the business activities carried on by a defendant and for its benefit’. ‘Benefit’ does not need to be commercial or financial benefit.
- As this case shows, if the activity is for the defendant’s benefit it does not matter that the primary tortfeasor also benefits. The prisoners were said to benefit from rehabilitation activities, but this did not preclude vicarious liability. However, Lord Reed stated that there will be no appropriate relationship if the primary tortfeasor’s activities are ‘entirelyattributable to the conduct of a recognisably independent business of his own or of a third party’.
Facts: The claimant managed a prison kitchen. Prisoners were obliged to work in the kitchen and were paid a small wage in return. However, they were not legally the prison’s employees. The claimant was accidentally injured by one of the prisoners dropping a bag of rice on her back. She sued the Ministry of Justice, arguing that they werevicariously liablefor the prisoner’s negligence.
Issue(s):
- Could the relationship between the defendant and the prisoner give rise to vicarious liability?
- Was there a sufficiently close connection between that relationship and the relevant tort?
Armes v Nottinghamshire County Council [2017] UKSC 60
VL - NDD
On VL
Lord Reed (as in Cox):
[57] ‘the approach adopted in Christian Brothers and Cox does not depart from the normative roots of the doctrine of vicarious liability, but provides guidance to assist in discerning circumstances in which the doctrine applies.’
[63] ‘In relation to the remaining issue, that of the ability to satisfy an award of damages, vicarious liability is only of practical relevance in situations where (1) the principal tortfeasor cannot be found or is not worth suing, and (2) the person sought to be made vicariously liable is able to compensate the victim of the tort. Those conditions are satisfied in the present context. Most foster parents have insufficient means to be able to meet a substantial award of damages, and are unlikely to have (or to be able to obtain) insurance against their own propensity to criminal behaviour. The local authorities which engage them can more easily compensate the victims of injuries which are often serious and long-lasting’
= might be difficult to square with what he said in Cox.
Lord Hughes (dissenting)
[91] ‘Vicarious liability is strict liability, imposed on a party which has been in no sense at fault. It is necessary, and fair and just, when it applies to fix liability on someone who undertakes an activity, especially a commercial activity, by getting someone else integrated into his organisation to do it for him. Employment is the classic example, but other situations may be analogous. But the extension of strict liability needs careful justification. Once one examines the nature of fostering, its extension to that activity does not seem to me to be either called for or justified, but, rather, fraught with difficulty and contra-indicated.’
They rejected the contention that the local authority had a non-delegable duty in this case. However, the Supreme Court accepted that the local authority was vicariously liable for the foster parents’ torts.
A local authority are not under a non-delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents. Such a proposition is too broad, and fixes local authorities with too demanding a responsibility [49]. The following reasons are given:
- The Child Care Act 1980 (“the 1980 Act”) permits a local authority to arrange for children in care to spend time staying with their parents or grandparents, or other relatives or friends.
Imposing a strict liability on local authorities for the lack of care of those relatives or friends would risk creating a conflict between the local authority’s duty, under section 18(1) of the 1980 Act, to give first consideration to the need to safeguard and promote the welfare of the child, and their interests in avoiding exposure to such liability. It would also risk creating a form of state insurance in situations where the local authority place the child with the child’s own parents [45]. - The 1980 Act required the local authority to “discharge” the duty to provide accommodation and maintenance for a child, including by placing the child with foster parents. This implies that, although the local authority have numerous duties towards the child, their duty is not to provide the child with day to day care, but rather to arrange for, and monitor, the performance of that function by the foster parents [46-47].
- The Secretary of State makes regulations under section 22 of the 1980 Act imposing duties on local authorities in relation to the boarding out of children. The implication of section 22 is that the local authority’s continuing responsibility for the child is discharged by boarding-out the child in accordance with those regulations, including by prior approval of the household, and subsequent inspection, supervision and removal. The statutory regime does not impose any responsibility for the day to day care of the child [48].
Facts: The claimant was a foster child who suffered sexual and physical abuse by their foster carers. The claimant had been placed in the care of the foster parents by the local authority. The claimant sued the local authority, on two grounds. The first was that the local authority was personally liable under a non-delegable duty for failing to keep her safe. The second was that the local authority was vicariously liable for the torts committed by the foster parents.
DJ v Barnsley Metropolitan Borough Council [2024] EWCA Civ 841:
‘[64] A person may decide to become a foster carer for a number of reasons – a general interest in children, or perhaps, after one’s own children have left home, a wish to deploy the skills one has acquired as a parent, or a sense of social concern or altruism, or a desire to supplement income, or, where the child is a relative, a sense of family obligation. Many foster carers will have a number of reasons for taking on the role, and where they are fostering as a couple each of them may have different reasons… None of this affects the relationship between the foster carer and the local authority. Motive is not relevant to determining whether the relationship between the local authority and the foster carer is “akin to employment”.’
‘[65] The recorder and the judge both focused on the relationship between DJ and the Gs to a considerable extent. But the central relationships for the purpose of determining whether there was vicarious liability in this case were the two other relationships – between the local authority and DJ and between the local authority and the Gs. Once the local authority had taken DJ into care, their relationship with him was one in which they were under statutory duties including the statutory duty to provide accommodation. They discharged that duty through their relationship with the Gs whom they approved as foster carers and with whom the claimant was then boarded out.’
= The CA disagree and held that there could be VL on these facts (caveat = does not mean that there will be VL at all times) as well
the court allowed the claimant’s appeal and held that a local authority can be vicariously liable for torts committed against a child by a foster carer who is also a relative (and generally referred to as a kinship carer).
Importantly, the Court of Appeal make it very clear (paragraph 69) that they have reached their decision based upon the specific facts of the case:
‘We are not laying down a general rule that a local authority will always be vicariously liable for torts committed by foster carers who are related to the child. Furthermore, in allowing this appeal, we do not intend to give any indication about the circumstances in which vicarious liability might arise under the present legislation and regulatory regime. We heard no submissions on that topic…. We therefore echo the observation of Lord Reed in Armes (at paragraph 72) that “it would not be appropriate in this appeal to address the situation under the law and practice of the present day, on which the court has not been addressed, and which would also require a detailed analysis”.
The key events date back to the 1980s. After the claimant had been abandoned by his parents, the local authority arranged for him to reside with his maternal aunt and uncle whom he had not previously met. The local authority carried out a foster carer assessment of the aunt and uncle and subsequently approved them as foster carers.
It was not until 2018 that the claimant alleged that he had been sexually assaulted by his uncle during the foster care period. He duly issued a civil claim, asserting that the local authority was vicariously liable for the uncle’s assaults.
=> It was also noted that the claimant chose to stay with his aunt and uncle after his 18th birthday rather than live independently with local authority support.
first instance = distinguishable for arms – selection and training are not gonna be the same as foster parents generally.
Barclays Bank plc v Various Claimants [2020] UKSC 13
akin to employement vs IC
Lady Hale
[24] ‘There is nothing, therefore, in the trilogy of Supreme Court cases discussed above to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded.’
[27] ‘The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant…
Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents [in CCWS].’
[28] Bates ‘was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.’
[29] ‘[Previously] it was largely assumed that a person would be an employee for all purposes - employment law, tax, social security and vicarious liability. Recent developments have broken that link, which may be of benefit to people harmed by the torts of those working in the “gig” economy. It would be tempting to align the law of vicarious liability with employment law in a different way…
But it would be going too far down the road to tidiness for this court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of “worker”, developed for a quite different set of reasons.’ = not borrowing from other areas of the law
Held: The Court subsequently allowed Barclays’ appeal and held that the bank was not vicariously liable for the wrongdoing of Dr Bates.
Lady Hale confirmed that, although the five relevant criteria in the Phillips test might be helpful in establishing whether workers who are technically self-employed (or agency workers) are part of the employer’s business, one must instead look at the underlying details of the relationship. If a contractor is, “carrying out his own independent business it is not necessary to consider the five incidents”.
In turning to the facts, Lady Hale said that it was clear that although Dr Bates“was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee” –citing the example of**other independent contractors, such as window cleaners or auditors.
It was admitted that the situation might be slightly different where contractors are paid a retainer (and have to accept referrals) but that wasn’t the case here – Dr Bates was free to refuse examinations and even “no doubt carried his own medical liability insurance”.Dr Bates also had other clientsand was therefore on business on his own account.
Facts: 126 claimants brought a group litigation action against the defendant bank in respect of alleged sexual assaults committed by Dr Gordon Bates. At the relevant time, the majority of the claimants were prospective employees of the bank (some were existing employees) and were required to undergo medical examinations as part of this recruitment process; it is during these examinations that the assaults allegedly took place. Dr Bates was not an employee of the bank.
Issue: Whether Dr Bates was acting as an independent contractor, carrying on business off his own account or if he was in a relationship akin to employment.
TVZ v Manchester City Football Club [2022] EWHC 7 (QB), Johnson J:
VL - IC vs akin to employment
[327] ‘It is deceptively easy to apply Lord Phillips’ incidents in a way that leads to a conclusion that it is fair, just and reasonable that MCFC should be vicariously liable for the activities of Bennell. It is a big, well-resourced club. It could easily meet the liabilities to the claimants, at a fraction of the amount that it pays its star players. Bennell was connected to MCFC. That connection gave him the opportunity to commit grievous acts of abuse against young, innocent, and vulnerable boys. They have no real alternative remedy… [327] ‘… However, that is not sufficient to meet the test for vicarious liability. It is not open to a court to impose vicarious liability on the basis of an intuitive feeling for where the justice of a case lies. Rather, it is necessary to apply the tightly controlled tests set down in the authorities, including the corrective guidance in Barclays Bank.’
Held: no VL
[310] ‘There was no contract between Bennell and MCFC. He was therefore neither an employee nor an independent contractor. It follows that stage 1 cannot be satisfied on the simple basis that Bennell was an employee of MCFC. Nor can the claimants’ case fail at stage 1 on the simple basis that Bennell was an independent contractor of MCFC.’
Facts: paedophile operated as a football coach and scout and had association of MCFC but was not an employee. One victim tried to sue the MCFC.
BXB
VL - see key cases
Bird v DP (a pseudonym) [2024] HCA 41
IC vs akin to employment
(High Court of Australia – not on English law!) => rejected the akin to employment category all together (In Australia, limited to employment), outright refusal to admit the akin to employment categories
Rose v Plenty [1976] 1 WLR 141
course of empoloyment - course of relationship
Held: Employer liable although not what he had said said. It was an unauthorised mode of delivering the milk (a way of doing the fact that the employer asked).
‘In the present case it seems to me that the course of the milk roundsman’s employment was to distribute the milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy to do part of that business which was the employers’ business. It seems to me that although prohibited, it was conduct which was within the course of the employment’ Lord Denning
A milk roundsman brought a 13-year-old boy (C) onto his van to help him deliver milk, even though the giving of lifts was prohibited by his employer (D)
C was injured by the negligent driving of the roundsman. The dairy argued that they expressly told him not to do it so was out of the course of his employment.
Lister v Hesley Hall Ltd [2002] 1 AC 215
course of empoloyment - course of relationship
[28] ‘The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.’ (an alternative test: is it sufficiently and closely connected- deals better with intentional rather than negligent conduct) -Lord Steyn
Comments: The closeness of connection test has been criticized as ‘vague’ by Giliker and does not tell us when an employee’s tort will fall within the scope of their employment. She believes thatLister‘achieves a “just” result for the victim, but at the expense of uncertainty’ ((2002) 65 MLR 269).
Held:
The House of Lords held that the defendants could be held vicariously liable for the warden’s torts. Vicarious liability involves a defendant being liable for the torts of another person even if they were not personally at fault. For an employer to be vicariously liable for the tort of their employee, the tort must be sufficiently connected to the employee’s work. To determine this, judges previously adopted the ‘Salmond test’. This held an employer vicariously liable if the employee had committed either (a) ‘a wrongful act authorised by the master’ or (b) ‘a wrongful and unauthorizedmodeof doing some act authorised by the master’ (Salmond,Law of Torts(Steven and Hayes, 1907) at 83). The problem with this test is that it would mean employers could not be vicariously liable for the intentional torts of their employees (such as battery) because sexual assault would not be an unauthorized mode of doing an authorized act.
After an analysis of the previous case law Lord Steyn said that the law ‘no longer struggles with the concept of vicarious liability for intentional wrongdoing’ but that the Salmond test ‘does not cope ideally with such cases’ (at [20]). Influenced by recent decisions from Canada, he opined that a better approach is ‘to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort’ (at [24]). The employers had entrusted the care of the children to the warden and the warden’s torts were ‘so closely connected with his employment that it would be fair and just to hold the employers vicariously liable’ (at [28]). As such, the defendants could be held vicariously liable for these torts.
Facts: Between the ages of 12 and 15, the claimants had been residents at a school boarding house run by the defendants. During this time they had been groomed and sexually abused by the warden of the boarding house, who was later convicted of multiple criminal offences involving sexual abuse. The issue in this case was whether the defendant employers were vicariously liable for the torts of the warden.
Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366
course of employment- course of relationship
[23] ‘Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.’
[121] ‘[It is] no answer to a claim against the employer to say that the employee was guilty of intentional wrong doing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer’s duty … vicarious liability is not necessarily defeated if the employee acted for his own benefit.’ Lord Niccholls
Facts: whether could be liable for the acts of an individual partner.
Mattis v Pollock [2003] 1 WLR 2158,
course of employment - course of relationsip
[30] ‘Cranston was indeed employed by Mr Pollock to keep order and discipline at the nightclub. That is what bouncers are employed to do. Moreover, however, he was encouraged and expected to perform his duties in an aggressive and intimidatory manner, which included physical man-handling of customers … The reality was that Mr Pollock should not have been employing Cranston at all, and certainly should not have been encouraging him to perform his duties as he did… The whole point of any physical confrontation with Mr Pollock’s customers in the nightclub, whether engineered by Cranston or not, was that he should win it.’
[32] ‘… Even allowing that Cranston’s behaviour included an important element of personal revenge, approaching the matter broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock for the actions of his aggressive doorman was not extinguished. Vicarious liability was therefore established.’
Held: VL
= there is a question of how much the owner knew (however can this reasoning be criticised here given that VL does not attach to employer’s fault for appointing a person??)
Facts: nightclub bouncer known to be aggressive by the owner of the nightclub (there was previous altercations). On one night, the bouncer ejected one of the claimant’s friends and was eventually stopped by the claimant from beating him up. He came back with a knife and stabbed the claimant in the back, leaving him paralysed.
Majrowski v Guy’s & St Thomas’ NHS Trust [2007] 1 AC 224
course of employment - course of relationship- VL
Lord Nicholls
[10] ‘It is difficult to see a coherent basis for confining the common law principle of vicarious liability to common law wrongs … The rationale also holds good for a wrong comprising a breach of a statutory duty or prohibition which gives rise to civil liability, provided always the statute does not expressly or impliedly indicate otherwise. A precondition of vicarious liability is that the wrong must be committed by an employee in the course of his employment …If this prerequisite is satisfied the policy reasons underlying the common law principle are as much applicable to … breaches of statutory obligations as they are to common law torts.’
There can be VL for a statutory tort
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
couse of employment - course of employment
Held: there was sufficient connection here. The archdiocese could be VL
Longmore LJ
[84] ‘But the progressive stages of intimacy were to my mind only possible because Father Clonan had the priestly status and authority which meant that no one would question his being alone with the claimant. It is this that provides the close connection between the abuse and what Father Clonan was authorised to do.’
= goes further, he only had this opportunity to commit the tort because of his priestly status.
Facts: Claimant was not a Catholic and was not involved at all with the church, but encountered abusive priest. Priest had invited him to attend the church disco, which he did on a number of occasions; that the discos were open to all young people in the area, whether or not they were Roman Catholics (C was not)
Two claims in tort:
- Vicarious liability for the sexual abuse
- Negligence for failing to act upon previous report of abuse against another boy.
Issue: is it sufficiently closely connected?
- Not a member of the parish
Mohamud v WM Morrison Supermarkets [2016] UKSC 11
course of employment - course of relatiosnhip
Procedure: The claimant’s primary argument was that the time had come for a new test of vicarious liability. In place of the “close connection” test the courts should apply a broader test of “representative capacity”. Alternatively, it was argued that the claimant should in any event have succeeded because he was a lawful visitor to the premises, and Mr Khan was acting within the field of activities assigned to him in dealing with the claimant
Held: The Supreme Court resisted the adoption of a new test for vicarious liability. However, it concluded that nonetheless, at no point did Mr Khan metaphorically take off his uniform. This was not a personal quarrel, but something that took place within the sphere of Mr Khan’s ordinary duties.
Reasoning: In giving the lead judgment the President, Lord Toulson, restated the “close connection” test laid down in[Lister v Hesley Hall Ltd [2001] UKHL 22]in terms of a two fold test. The first question is what functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. This question must be addressed broadly. Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.
= taken as having adopted an expansive approach to stage 2 of liability.
Facts:
- C went to a petrol station kiosk owned by Morrisons (D)
- When C asked a question, the kiosk attendant (K) berated C and used foul, racist and threatening language to order C to leave
- As C walked out of the kiosk and to his car, he was followed by K, who then assaulted C when he was getting into his car
Issue: Whether Morrison was VL?
Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214, Asplin LJ:
course of employment - course of relatiosnhip
Held: there was VL on the facts
[27] ‘Even if Mr Major had taken off his managerial hat when he first arrived at the hotel, it seems to me that he chose to don it once more and to re-engage his wide remit as managing director and to misuse his position when his managerial decisions were challenged.’
= confirms an expansive approach traced back to Lister.
Facts: a few of the guests decided to go to an afterparty. Argument with his boss, the argument ended with the boss punching the claimant twice and C suffered brain damage.
WM Morrison Supermarkets v Various Claimants [2020] UKSC 12
course of employment - course of relatiosnhip
NOta bene: -
- The Supreme Court noted that the statement inMohamud v Morrisons[2016] UKSC 11 that the tortfeasor’s ‘motive was irrelevant’ was not making a general statement of principle. A tortfeasor’s motiveisrelevant to vicarious liability, if it indicates the tortfeasor was acting in a purely personal capacity. All the Supreme Court meant inMohamudwas that the precise reason the tortfeasor escalated to violence was irrelevant.
Issues(s):
- Was there a sufficiently close connection between the employee’s employment and the breach of data protection law?
- Does the Data Protection Act 2018 exclude vicarious liability?
Held: The Supreme Court held in favour of the appellant. The Court of Appeal had not properly considered the relevant factors:
- The employee was not authorised or employed to make disclosures on the internet. Accordingly, the tort was not part of the field of his activities.
- While there was a temporal and causal connection between the employee’s job and the tort, this was not enough to establish a close connection.
- The employee’s motive was relevant. The employee was motivated by a purely personal grudge.
The Supreme Court considered that these factors meant that there wasnota sufficiently close connection between the employment and the tort. The employee was engaged in a purely personal vendetta.
- Facts: The appellant was a company running a chain of supermarkets. The respondents were its employees and former employees. One of the appellant’s employees leaked the respondents’ personal data from the appellant’s data bases onto the internet using his work computer. That employee had been subject to disciplinary proceedings and developed a grudge against the appellant. This grudge motivated his actions. The respondents sued the appellant. They argued that the appellant was[vicariously liable]for the employee’s breach of data protection law. The appellant denied that they were vicariously liable, arguing that there was not a sufficiently close connection between their relationship with the employee and the illegal act. Alternatively, they argued that the[Data Protection Act 2018]excluded vicarious liability for[breach of statutory duty]
Chell v Tarmac Cement And Lime Ltd [2022] EWCA Civ 7
course of employment - course of relationship
[1] The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong. Mark Twain was surely right when he said:
“When grown-up persons indulge in practical jokes, the fact gauges them. They have lived narrow, obscure, and ignorant lives, and at full manhood they still retain and cherish a job-lot of left-over standards and ideals that would have been discarded with their boyhood if they had then moved out into the world and a broader life.”
27 ‘The risk created by this employee was not inherent in the business. The employer’s business provided the background and context for the risk and created the ground for it but that of itself is insufficient to create the close connection, particularly in the absence of other factors.’
[28] ‘On no basis could it be said that Mr Heath was authorised to do what he did by Tarmac. Nor was his act an unlawful mode of doing something authorised by Tarmac. The pellet target was not work equipment, hitting pellet targets was no part of Mr Heath’s work, such an activity in no way advanced the purposes of Tarmac and that activity was in no sense within the field of activities authorised by Tarmac.’
No VL on the facts
In delivering the unanimous judgment of the Court, Nicola Davies LJ held that the relevant issue so far as vicarious liability was concerned was whether the Tarmac fitter’s wrongful act was done in the course of his employment. That is, was it a wrongful act authorised by his employer, or a wrongful and unauthorised mode of doing some act authorised by Tarmac. If either of those was answered positively, then Tarmac would be vicariously liable for the wrongful act.
The Claimant took no issue with the judge’s identification of the relevant law and legal principles, but contended that he erred in his application of the law to the facts as found.
Nicola Davies LJ disagreed. She held that the “careful and detailed findings of fact made by the judge, unchallenged by the appellant, are fatal to his appeal. What they demonstrate in that there was not a sufficiently close connection between the act which caused the injury and the work of [the Tarmac fitter] so as to make it fair, just and reasonable to impose vicarious liability on Tarmac” [26].
Her Ladyship held that the real cause of the Claimant’s injury was the explosive target pellet which was not the employer’s equipment; it was no part of the Tarmac fitter’s work to use target pellets; the Tarmac fitter did not have a supervisor role so there was no abuse of power
Facts: perforated eardrum as a result of a practical joke.
MXX v A Secondary School [2023] EWCA Civ 996 (also concerns both stages of liability) - application of BXB
VL - application of BXB
[73] ‘I am satisfied that in undertaking the tasks assigned to him by the defendant, PXM did assist with the business of providing PE classes and after school sports clubs to the defendant’s pupils. During his time at the school PXM was not a pupil nor is there any evidential basis to support an assertion that he was carrying on business on his own account.’
[88] ‘In my judgment, given the limited nature of PXM’s role during the course of one week, the facts do not begin to satisfy the requirements of the close connection test. The grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.’ (reference to Steyn in Lister, the test is NOT ‘inextricably woven’ though = this just shows that the present set of facts is clearly beyond the line of close connection)
Held: the relatiosnhip stage was satisfied but the connection stage was not.
Facts: former pupil became a PE teacher and was given work experience at his old school. Unpaid and lot of restrictions. Groomed a young girl, kept in touch with her and sexually abused her.
Woodland v Essex County Council [2013] UKSC 66
NDD
Was an independent contractor situation – NO VL possible so the C’s framed the argument as a non-delegable duty. Duty owed by the school to the child
- Lord Sumption:
[4] ‘The issue on this appeal is … nothing to do with vicarious liability, except in the sense that it only arises because there is none. On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authority’s duty to pupils in its care.’
[5] ‘The law of negligence is generally fault-based. Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do… The expression “non-delegable duty” has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.’
= even if you delegate the duty to sb’s else for the doing, the duty remains on you.
Held: The UK Supreme Court held unanimously that a claim could be brought against Annie’s school on the basis that it had owed her a non-delegable duty of care. Lord Sumption
gave the leading speech. He argued that there are ‘two broad categories of case’ ([6]) in which a defendant (D) will owe a claimant (C) a non-delegable duty of care:
(1) where D is engaged in an ultrahazardous activity and owes C a duty of care in engaging in that activity to see that C is not harmed by that activity, and
(2) where (all quotes from [23]):
(i) C is a ‘patient or child, or for some other reason is especially vulnerable or dependent on the protection of [D] against the risk of injury’;
(ii) there is an antecedent relationship between C and D ‘which places [C] in the actual custody, charge or care of [D]’ and ‘from which it is possible to impute to [D] the assumption of a positive duty to protect [C] from harm’; and
(iii) C ‘has no control over how [D] chooses to perform’ that positive duty, ‘whether personally or through employees or through third parties’.
Reasoning on the facts: Lord Sumption held that while (1) did not apply here (on the basis that teaching people how to swim was clearly not an ‘ultrahazardous activity’ ([6]), (2) did apply to the relationship between Annie and her school.
Facts: Annie Woodland went for a swimming lesson organised by her school. The swimming lesson was conducted in a local pool by a company known as Direct Swimming Services (‘DSS’). For reasons which were not clear at the time this case was heard, Annie ended up hanging head down in the water during the lesson. She was hauled out of the water and resuscitated, but had suffered a severe brain injury due to lack of oxygen. The question the UK Supreme Court had to answer was whether Annie’s school could be held liable for her injuries, on the basis that the school had owed Annie a non-delegable duty of care to see that she did not come to any physical harm while in the care of the school, and that the school had been put in breach of that duty as a result of the (alleged) carelessness of DSS in teaching Annie how to swim.
Hughes v Rattan [2022] EWCA Civ 107,
NDD
[71] ‘(1) In the first factor “patient” must include anyone receiving treatment from a dentist. ..
(2) Turning to the second factor, an antecedent relationship between the Claimant and the Defendant was established at the latest on each occasion when the Claimant signed the Personal Dental Treatment Plan, which she was required to do before any NHS treatment was carried out. That relationship placed the Claimant in the actual care of the Defendant, not because he was a dentist himself but because he was the owner of the Practice.
(3) As for the third factor, the Claimant had no control over how the Defendant chose to perform his obligations, whether personally or through employees or third parties.’
The Defendant was a dental practice owner who owed the Claimant a non-delegable duty of care in respect of the treatment provided to her by self-employed Associate Dentists. He was not, however vicariously liable for their actions on the basis that the relationship between the Defendant and Associate Dentists was not one akin to employment.The relationship of vulnerability was met, antecedent relationship, no control
SKX v Manchester City Council [2021] EWHC 782 (QB)
NDD
[98] ‘As for Mr Davy’s submission that it is wholly unconscionable for persons in the position of the claimant to be left uncompensated for the abuse that they have suffered, I do not accept that this is a reason to impose a non-delegable duty upon the defendant in these circumstances…’
[98] ‘The reason why this claimant has been left uncompensated is because he has faced the perfect storm of (1) the perpetrator being without funds; (2) the perpetrator’s employer being in liquidation; (3) the treatment not being covered by the policy of insurance between the employer and its insurer; and (4) there being no basis for alleging that the defendant local authority or its employees have themselves acted negligently in a way that caused of facilitated the abuse.’
[98] ‘As I said earlier in this judgment, I have great sympathy for the claimant as a victim of sexual abuse for which he has received no compensation, but that does mean that it would be fair or reasonable to make the defendant liable to pay compensation to him on a no-fault basis, let alone that it would be unconscionable to refrain from doing so.’
In the absence of fault, a local authority was not liable for sexual assaults committed by an employee of the private residential care home at which it placed the claimant. The relationship
between the abusive employee and the placing authority was not akin to employment and the duty of care owed by the authority to the claimant was not non-delegable
Facts: Private children’s home , the council should be VL for the acts in question. Alternatively, NDD claim.
