Vicarious liability Flashcards
Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd
Originally ‘employee’ determined by amount of control contract gives over how person does their work.
Montgomery v Johnson Underwood
Employees are normally subject to more control than independent contractors.
WHPT Housing Association Ltd v Secretary of State for Social Services
Employee is required to work for a certain period of time, whereas independent contractors are hired for a specific job.
Market Investigations v Minister of Social Security
Someone who ‘hires his own helpers’ is usually an independent contractor. Employees are usually provided equipment.
Stephenson Jordan & Harrison Ltd v MacDonald & Evans
‘under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business’
Contract of service
Employee
Contract for services
Independent contractor
Vicarious Liability
D is held liable for the tort committed by another: not held to have committed the tort but treated as though he committed the tort.
Salmond test: Course of Employment
Employee’s tort was committed in the course of employment if he was doing something he was employed to do by committing that tort, even if the manner is unauthorised.
Lister test: Course of Employment
Employee’s tort was committed in the course of employment if it was ‘so closely connected with his employment that it would be fair and just to hold’ D vicariously liable.
Trotman v North Yorkshire CC
Deputy headmaster’s sexual abuse of children was not in course of employment under Salmond test.
Lister v Hesley Hall Ltd 2002
Sexual abuse of children by the man running a boarding house was in the course of employment under the Lister test. Should have held D liable for breach of non-delegable duty.
Lord Steyn in Lister
‘the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House.’
Gold v Essex CC
‘Control test’ in Performing Right Society Ltd unrealistic for when employee has a specialist skill.
‘Special risk factor’
Determines when an act will be sufficiently closely connected with employment for the Lister test.
Mattis v Pollock
‘Special risk’ when a job gives you special skills. Bouncer stabbing case.
Bazley v Curry
‘Special risk’ when a job means you enjoy a degree of trust and confidence. Canadian paedophile working in children’s hospital.
Gravil v Carroll
‘Special risk’ when a job involves aggravation. Rugby player punched in melee after scrum.
Wallbank v Fox Designs Ltd
In a factory setting, a spontaneous angry reaction to a corrective instruction may be in the course of employment. Risk of over robust reaction created by employment.
Weddall v Barchester Health Care
Not in the course of employment if violence is triggered by dislike of a fellow employee rather than reaction to an instruction.
Attorney General of the British Virgin Islands v Hartwell
Used policing gun to shoot in a bar where he saw his ex-partner with another man. This was NOT in the course of employment - police officer embarked on a ‘frolic of his own’. Doesn’t fit Lister.
Bernard v Attorney General of Jamaica
Doesn’t matter if way of carrying out task was unauthorised. Shot C to free up a pay phone so was acting in the course of employment. D employer created risk of police acting like this by allowing them to carry guns.
Brown v Robinson
Security guard shooting C point blank was in the course of employment. Not an act of ‘revenge or private retaliation’.
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church
C sexually abused by RC priest and archdiocese held vicariously liable. Special risk created by position of trust BUT Longmore LJ implies the fact that the job provides the opportunity ‘provides the close connection between the abuse and what Father Clonan was authorised to do.’
Keppel Bus Company
Getting angry and assaulting someone is probably not in the course of employment.
Tomlinson LJ Dissent: JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust
In cases of non-employment, D should only be held vicariously liable if there is a relationship of agency so tortfeasor was acting for D’s benefit or representing D in some way.
JGE
Priest sexual abuse case. Vicarious liability imposed as deterrent, encouraging people in a position to prevent torts to do so.
Cox v Ministry of Justice
Relationship ‘akin to employment’ where prisoner had the job of loading food supplies and C was negligently injured. Prisoner was benefitting MoJ, MoJ created risk of injury by engaging prisoner, prisoner under control of MoJ.
Various Claimants v Catholic Child Welfare Society 2012
D can be held vicariously liable for a tort committed by a non-employee if their relationship is sufficiently akin to employment. Also shows support for dual vicarious liability.
Douglas Brodie: ‘Enterprise Liability: Justifying Vicarious Liability’
‘Equity dictates that the enterprise, which stands to profit from the running of those risks, should be obliged to compensate in the event of harm materialising.’
Viasystems v Thermal Transfer
Actual and ‘borrowing’ employer can BOTH be liable. Employee must be ‘so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his [tort]’.
