Vicarious Liability Flashcards
Essential requirements of vicarious liability
- D1 has committed a tort
- D1 is D2’s employee or was in a relationship with D2 which is sufficiently similar to employment
- D1’s tort was committed in the course of his employment with D2 or was sufficiently closely connected to the task D1 was carrying out for D2
Rationales for vicarious liability?
Enterprise - If I set up a business and employees do good job, I get profits. If they do a bad thing and cause loss, shouldn’t I be liable for those torts caused while they were working for me?
Risk creation - If you are creating a risk, shouldn’t you be liable?
Loss distribution - Better for costs to be distributed by businesses raising prices, so society pays rather than individual victims bearing costs.
Deterrence - Businesses will be incentivised to train employees, do background checks and ensure procedures in place.
Compensation - Ensuring victims be compensated best as possible
How do we distinguish between employees and independent contractors?
Market Investigations - Employee found, since degree of control was so great it was akin to an employment relationship - she had to follow company’s guide.
BXB: Factors which are indicative:
- Whether work is being paid for in money or in kind
- How integral to the organisation is the work carried out by tortfeasor
- Extent of D’s control over tortfeasor in carrying out work
- Whether work carried out for D’s benefit or in furtherance of aims of organisation
- Situation with regard to appointment and termination
- Hierarchy of seniority?
Viasystems
Two employees can be liable at once where multiple people can control the employee’s relevant act so aa to prevent it.
JGE v Trustees and VC v Catholic Child Welfare Society
Both cases concerned sexual abuse by priests where there is no employment relationship.
JGE: the defendant and the tortfeasor should be so close to a relationship of employer/employee that, for vicarious liability purposes, it can fairly be said to be akin to employment.
CCWS: Where D and tortfeasor have no contract of employment, but their relationship has the same incidents, there can be vicarious liability on ground that it is akin to an employment relationship.
In CCWS, joint liability between school and Institute.
Cox v MOD
Prisoners - certainly not employees caused injury.
‘Akin to employment’ test not only applicable to sexual abuse cases, applicable to the wider tort.
Test: A relationship other than employment can give rise to VC where harm done by one who carries out activities as an integral part of the business activities carried on by D and for its benefit
rather than his activities being attributable to his own business or that of a third party
and where the commission of the wrongful act is a risk created by D by assigning those activities to the individual in question.
Armes v Nottinghamshire CC
Ms Armes foster placed with two couples who abused her.
Could council be vicariously liable for foster parents’ torts?
Yes - committed in the course of an activity for D’s benefit, D created risk and had a degree of control.
Dissent from Lord Hughes - Council lacked control and day-to-day input, plus foster parents move regularly. However, cases where child placed with parents may create different considerations.
DJ v Barnsley - What if foster carers related to child?
CA held doesn’t matter - we should not consider relationship between child and foster parent, foster parent’s motive irrelevant.
The relevant relationships are that between claimant and council, and the parent and council.
Barclays Bank v VC
Can you have vicarious liability for the acts of an IC, and should we use akin to employment test on ICs?
Facts: Mr Bates, an IC doctor, abused women who came for medical assessments.
CA thought we apply rule from Cox regardless of whether they are an IC, and ICs can in principle create liability.
Held by SC that the rule that there cannot be vicarious liability for an IC remains. He obviously was not an employee, so we then ask if he was an IC or if he was akin to employment. Here, he was an IC = no liability.
Reminder of test for IC/employee/akin post-Barclays
- Are they an employee? (If yes, vicarious liability possible)
- Are they a true IC? (Look at substance) If yes, no vicarious liability. If not, consider whether they are an employee or akin to employment.
- If it is a doubtful case, apply Cox.
Confusion in Barclays was that CA thought we skip straight to the last question where not an employee.
BXB’s significance for the first test - akin to employment
Mr S was an elder of the Jehovah’s Witnesses.
Court focused on features of the relationship - eg the hierarchical structure, the tortfeasor being directed to undertake activities, the fact that he was furthering objectives of the organisation, and he was required to conduct himself within the rules of the organisation.
The fact he wasn’t being paid was a factor but not indicative.
Held: He was in a relationship akin to employment with JW
Other jurisdictions: Bird v DP (Australia)
Held: There cannot be vicarious liability for acts done by individuals who are not employees - no akin to employment test.
Gleeson J dissented, arguing it was a missed opportunity to align Australian common law with other jurisdictions and changed social conditions
Rose v Plenty - For what activities can VC attach?
‘Conduct within the course of his employment’.
Irrelevant that he had been told not to do it, it was still within the course of his employment.
Lister - what about intentional torts?
Warden sexually abused boys in his care - was this in the course of his employment, when it was precisely the opposite of his job?
Held: The question is whether the tort is sufficiently closely connected with the employment that it is fair and just to impose liability
Developed in Dubai Aluminium v Salaam - ‘so closely connected with acts they were authorised to do, that the wrongful conduct may fairly and properly be regarded as done while acting in the ordinary course of business or employment’
Mattis v Pollock
Nightclub bouncer known to be aggressive, leaves club and goes to his flat to get a knife, stabs claimant.
Held that even though it was an act of personal revenge, at the moment where C was stabbed, the responsibility of nightclub for the actions of their doorman had not been extinguished.
Catholic Child Welfare Society’s relevance to the second question - acts sufficiently closely connected to employment
Creation of risk is a relevant factor to give rise to VC.
Mohamud v Morrisons
Store clerk racially abused and chased down customer.
First must consider what functions have been entrusted to the employee, then secondly whether there was sufficient connection between the position he has been employed in, and his wrongful conduct to make it right for the employer to be held liable.
Clerk’s actions in ordering him to leave were within the field of activities assigned, and what happened after was an unbroken sequence of events - he had not metaphorically taken off his uniform, and was following up on what he said to the claimant. Hence, Morrisons liable.
Also, he was purporting to act about his employer’s business by telling the guy to not come back - thus it was connected to the business in which he was employed. Employers entrusted him with that position and should be liable for employee’s abuse of it.
Bellman v Northampton Recruitment Ltd
Work Xmas party, after-work drinks got into heated argument about work. Company director punched claimant.
Was company liable?
Held that even if D had taken off his managerial hat when he arrived, he chose to don it once more and misuse his position when his managerial decisions were challenged. The argument was about work, and he had a dominant position through work which he abused - sufficiently closely connected
WM Morrison v VC
Disgruntled employee in IT leaked personal info of employees, as revenge for disciplinary action taken by his employer.
CA said following Mohamud, motive is irrelevant, so vicarious liability is established.
SC said that Mohamud did not broaden the test or change the law.
Reference to an unbroken sequence of events in Mohamud was not about the temporal or causal connection, but about the capacity in which Mr Khan was acting when the events took place. If we consider temporal connection, we can always find a connection since time itself is a seamless and continuous sequence of events.
Here, Mr Skelton was not furthering his employer’s business but was pursuing a personal vendetta and vengeance.
Motive is relevant, and Mohamud actually supports this since they observed in Mohamud that he was acting in what he thought were his employers’ interests.
SC confirmed close connection test from Dubai Aluminium and Lister
BXB’s relevance to second stage of VC
Reminder: Mrs BXB raped by Mr S, an elder of Jehovah’s Witnesses.
At stage 1: held there was a relationship akin to employment.
At stage 2 however: No sufficient connection between acts authorised to do and the tort.
Reasoning: Correct close connection test was that laid down in Dubai Aluminium confirmed in Morrison.
CA relied on too many background factors such as senior JWs encouraging Ms BXB to be friends with Mr S, and that they had been on pioneering activities before lunch on the day of the rape. This was not relevant in considering whether the rape itself was closely connected to the acts which he was authorised to do.
On that test, it is relevant that he was not carrying out any activities as an elder at the time of the rape, they were at his own home. He was not exercising control over Mrs B because of his position as an elder, but because of their close friendship. Thus, test 2 not satisfied.
MXX v A Secondary School
Tortfeasor undertook unpaid work experience at school, with restrictions on what he could do.
He groomed a girl, and after work experience done kept in touch with her and sexually abused her.
CA held employment test satisfied, but closeness of connection test failed.
The grooming was not inextricably woven with the carrying out of his work, such that the school should be liable for his actions after his work experience finished.
Remember, the abuse happened after he had finished his work experience, so how can his act be sufficiently closely connected with the work he was authorised to do.
Non-delegable duties - What are they?
A duty you cannot pass onto anyone else. If you delegate commission of the task, you remain liable for any breach of the duty even if it is due to mistake/negligence of the third party.
Eg a school owes a duty to make sure care is taken, regardless of who does it. If the teacher messes up, school still liable even if they didn’t do anything wrong in picking that teacher.
Woodland
Accident at swimming pool, school contracted out swimming lessons (so no vicarious liability)
Held: Lack of control does not avoid liability. Defendant liable in spite of lack of control. Essential element is control over the CLAIMANT for the purpose of performing a function for which the defendant has assumed responsibility.
Woodland: Where do we establish a duty?
(1) C is a patient, child or for other reason vulnerable.
(2) Antecedent relationship between C and D, putting C in custody, charge or care of defendant, from which it is possible to impute a duty on D to protect C from harm.
(3) C has no control over how D chooses to perform obligations
(4) D has delegated to a third party the function
(5) Third party negligent
Armes v Nottinghamshire CC - Non-delegable duties part
VC claim won, but the suggestion that local authorities owe a non-delegable duty to children placed in care, to ensure care is taken in their upbringing was not found.
Too broad and too demanding on local authorities, difficult for them to practically ensure and imposes too big of a burden.
