Vicarious liability

Question 1

Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd

Answer 1

Originally ‘employee’ determined by amount of control contract gives over how person does their work.

Question 2

Montgomery v Johnson Underwood

Answer 2

Employees are normally subject to more control than independent contractors.

Question 3

WHPT Housing Association Ltd v Secretary of State for Social Services

Answer 3

Employee is required to work for a certain period of time, whereas independent contractors are hired for a specific job.

Question 4

Market Investigations v Minister of Social Security

Answer 4

Someone who ‘hires his own helpers’ is usually an independent contractor. Employees are usually provided equipment.

Question 5

Stephenson Jordan & Harrison Ltd v MacDonald & Evans

Answer 5

‘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’

Question 6

Contract of service

Answer 6

Employee

Question 7

Contract for services

Answer 7

Independent contractor

Question 8

Vicarious Liability

Answer 8

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.

Question 9

Salmond test: Course of Employment

Answer 9

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.

Question 10

Lister test: Course of Employment

Answer 10

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.

Question 11

Trotman v North Yorkshire CC

Answer 11

Deputy headmaster’s sexual abuse of children was not in course of employment under Salmond test.

Question 12

Lister v Hesley Hall Ltd 2002

Answer 12

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.

Question 13

Lord Steyn in Lister

Answer 13

‘the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House.’

Question 14

Gold v Essex CC

Answer 14

‘Control test’ in Performing Right Society Ltd unrealistic for when employee has a specialist skill.

Question 15

‘Special risk factor’

Answer 15

Determines when an act will be sufficiently closely connected with employment for the Lister test.

Question 16

Mattis v Pollock

Answer 16

‘Special risk’ when a job gives you special skills. Bouncer stabbing case.

Question 17

Bazley v Curry

Answer 17

‘Special risk’ when a job means you enjoy a degree of trust and confidence. Canadian paedophile working in children’s hospital.

Question 18

Gravil v Carroll

Answer 18

‘Special risk’ when a job involves aggravation. Rugby player punched in melee after scrum.

Question 19

Wallbank v Fox Designs Ltd

Answer 19

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.

Question 20

Weddall v Barchester Health Care

Answer 20

Not in the course of employment if violence is triggered by dislike of a fellow employee rather than reaction to an instruction.

Question 21

Attorney General of the British Virgin Islands v Hartwell

Answer 21

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.

Question 22

Bernard v Attorney General of Jamaica

Answer 22

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.

Question 23

Brown v Robinson

Answer 23

Security guard shooting C point blank was in the course of employment. Not an act of ‘revenge or private retaliation’.

Question 24

Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church

Answer 24

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.’

Question 25

Keppel Bus Company

Answer 25

Getting angry and assaulting someone is probably not in the course of employment.

Question 26

Tomlinson LJ Dissent: JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust

Answer 26

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.

Question 27

JGE

Answer 27

Priest sexual abuse case. Vicarious liability imposed as deterrent, encouraging people in a position to prevent torts to do so.

Question 28

Cox v Ministry of Justice

Answer 28

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.

Question 29

Various Claimants v Catholic Child Welfare Society 2012

Answer 29

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.

Question 30

Douglas Brodie: ‘Enterprise Liability: Justifying Vicarious Liability’

Answer 30

‘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.’

Question 31

Viasystems v Thermal Transfer

Answer 31

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]’.