Vicarious Liability Flashcards
Maga
There is no universal justification for vicarious liability
Elements necessary to establish vicarious liability
1) That there was a relationship of employer/employee or somthing akin to it
2) Control test
3) business integration test
4) The ‘scope’ or ‘course’ of employment
E v English Providence of Our Lady of Charity
- ‘moved beyond the confines of a contract of service’
- Court can go beyond
- If there is control by the worker
- Or the worker was an integral part of the defendant’s business
Moynihan v Moynihan
- It was held that there was sufficient control by one family member over the actions of another (young girl) who injured another when she spilled hot tea
Morrissey v HSE
- Cervical check scandal
- One issue was whether HSE who had contacted the work to an American lab could be liable for the negligence of the lab
Held that there was a clear contractual relationship
Catholic Welfare
- When considering a doubt whether the relationship between the parties is one where vicarious liability may apply, court should consider whether it would be fair, just and reasonable by looking at:
1) The employer was more likely to have the means to compensate the victim than the employee
2) The tort was being committed as a result of activity being taken by the employee on behalf of the employer
3) The employer’s activity was likely to be part of the business activity of the employer
4) The employer by employing the employee to carry out the activity created the risk of the tort committed by the employee
The employee will to a greater or lesser degree have been under the control of the employer
Phelan v Coillte
- Worker engaged exclusively with the defendant as a welder
- Dealt with his own tax affairs and did not avail of holiday pay
- Used his own tools and paid own mileage
- Injured a co-worker
- Needed to show that the person that injured him was an employee
Court held that the welder was an employee
O’Keefe v Hickey
- Sexual abuse of a minor by a teacher
- Argument of vicarious liability on the State as the events happened during music lessons under the control of the school
- Argument was whether the teacher was an employee of the State
- Ultimately, the majority held that the State was not the teacher’s employer
- Greater day-to-day management rested with the local management and not the Department of Education
Armes v Nottonghamshire County Council
- Young girl was put in to foster care by the defendants
- Physically and mentally abused by her foster parents
- UK SC held that the defendant local authority was vicariously liable
- Reasons
- Foster parents were selected and trained by Council
- Was not independent business of their own
- Appointment created a relationship of authority and trust
- Local authority exercised sufficient control
- Had authority to move the children
Barclays Bank v Various Claimants
- Doctor carried out consultations on behalf of bank
- Officially an independent contractor
- Sexually assaulted patients
- 126 claimants sued bank
- COA agreed with argument that the bank was liable
- Controversial
- Reversed by SC
- COA had unacceptably expanded vicarious liability conditions
- Found that the doctor was an independent contractor
Unless doubt, independent contractors are not employees, therefore no vicarious liability
JGE v Trustees of the Roman Catholic Church
- Priest sexually assaulted young girl
- Court concluded that the relationship between the priest and the defendant was ‘akin to that between an employer and employee’
- ‘he had been trained and ordained for that purpose’
Hickey v McGowan
- Involved sexual abuse of a young boy from a member of the Marist Order of Brothers
- Was the relationship akin to an ‘employer/employee/ relationship?
- Although he was not being paid, he was in a closer relationship with the brothers than in other cases
- Liability held for Marist Order of Brothers
TVZ v Machester City FC
- Scout was convicted of sexually abusing several boys he had coached
- Alleged vicarious liability for MCFC
- Court disagreed
- Not paid
- Not exclusively tied to the club
- No evidence that the club had disciplinary control over him
- Nothing to suggest that the work was an integral part of the business of MCFC
Joel v Morrison
‘frolic of their own’
Farry v Great Northern Railway Co
- Explained the scope of employment test
- Train station employee detained a passenger who they suspected to be ravelling without a ticket
- Argued false imprisonment
- Test considers
1) If the act is outside the servant’s control
- If so, liability
2) Was there a sufficient
close connection between the unauthorised act and authorised job
If so, liability
Poland v Parr
- Employee struck child as he reasonably believed he was stealing employer’s property
- Authorised to act in defence of property in emergency situations
- Liability placed on employer
O’Connell v Bateman
No vicarious liability when an employee borrowed his employer’s lorry after work to visit parents
Jameson v Byrne & Maguire
Vicarious liability held when an employee took a short detour while at work
Boyle v Ferguson
- Car salesman who was involved in a road accident while accompanied by two lady friends was deemed to have been acting within the course of his employment at the time
- His work hours were flexible and he claimed was trying to sell car to the ladies
Kay v ITW
- Good example of an unauthorised act which was seen as in the course of employment
- Forklift driver was employed by the defendant
- When driving his forklift, he found an unattended lorry blocking entrance he was trying to get through
- Employee left the forklift and injured the plaintiff while moving the lorry
- Vicarious liability held
Bazley v Curry
- Held that an employer could be held vicariously liable for sexual abuse carried out by an employee in certain circumstances
- Involved non-profit organisation which placed children in homes
□ Sexual abuse
□ Argued they were never authorised to sexually abuse children
□ Court held that close supervision was involved - The nature of the work was to effectively be parents
- Held that there was a risk created by the employer
Given the fact that the risk was significantly increased due to the nature of the job which was created by the employers, vicarious liability could be found
Mohammed v WM Morrison Supermarket
- Defendant employed Mr Khan who worked in its petrol station kiosk
- Plaintiff was verbally abused and followed out of the shop by Opened his passenger car door and assaulted the plaintiff
- Question was whether unauthorised act was connected to the final act
- Court held two matters are essential for close connection test
1) What function or field of activities had been entrusted to the employee?
2) Was there a sufficient connection between those duties and the wrongful act that should see the employer liable?
- Court held that there was an ‘unbroken sequence of events’
- Vicarious liability seen
Morrisons v Various Claimants
- IT man leaked data of nearly 10,000 employees
- He wanted Morrisons to be liable
- originally found liable as there was a connection to the man’s work
- Overturned however
- Limit placed on vicarious liability
- Held that actions were not authorised
