Vicarious Liability Flashcards
3 key requirements for VL
Lord Phillips in Various Claimants v Catholic Child Welfare Society:
1) D1 has committed a tort
2) D1 is an employee of D2, or there is a relationship akin to employment
3) D1’s tort was committed “in the course of employment”
Market Investigations v Social Security Minister
6 factors to consider whether D1 is an employee of D2:
1) Level of control D2 has over D1
2) Equipment
3) Helpers
4) Exposure to financial risk
5) Management
6) Contractual documentation - but courts are sceptical about this, because there is an incentive for employers to contract people who should be employees as independent contractors in order to limit their liability
Lee Ting Sang v Chung Chi-Keung
Where D1 did not provide his own equipment or helpers, and was not required to exercise management in his job, then he is likely to be an employee (rather than an independent contractor)
Hall v Lorimer
D1 bearing financial risk, particularly the risk of bad debts, strongly suggests that D1 is not an employee but an independent contractor
Viasystems v Thermal Transfer
Introduced the principle of dual vicarious liability - two employers can be simultaneously liable for a tort committed by D1. For dual VL, D1 does not also need to be an employee of D3 (the borrower) - apply one of the tests laid out by May LJ and Rix LJ.
Rix LJ said that the test for D3 also being liable through dual VL should be the extent to which D1 has become INTEGRATED into D3’s business.
By contrast, May LJ said that control is key - if D3 has a high level of control over D1, then they should also be VL
Various Claimants v Catholic Child Welfare Society
For relationship being akin to employment, the court looks at how similar the relationship is to an employer-employee relationship. Court held that there was a relationship akin to employment here since the teaching activity was to further the organisation’s aim/mission, and D2 set out clear rules for D1 to follow etc.
Cox v Ministry of Justice
Being in prison is a relationship akin to employment - shows that a wide range of relationships can be akin to employment.
Court said that focus should be on two things mainly:
1) Whether D1 was acting on D2’s behalf
2) Whether D1 was likely to be part of D2’s business activity
NA v Nottinghamshire CC
No relationship akin to employment here as the purpose of foster families is to operate as an independent unit insofar as is possible - imposing this relationship would go against the whole idea
Rose v Plenty
This laid out the old ‘unauthorised mode’ test for D1 committing the tort ‘in the course of employment’. The test is that the employer is liable for either a wrongful act by D1 that they authorised, or if D1 acts in an unauthorised way WHILST CARRYING OUT THEIR JOB.
If D1 was not carrying out their job at all (e.g. travelling home from work) when they committed the tort, then this was not in the course of employment and D2 is not liable for VL
Lister v Hesley Halli
Court introduced the new ‘close connection test’ for D1 committing the tort ‘in the course of their employment’. Test is whether there was a sufficiently close connection between the tort and the nature of D1’s employment so as to make it fair, just and reasonable to impose VL - if yes, then D2 is VL.
So D2 was VL here because there was a sufficiently close connection between D1’s sexual abuse of the children and his job as a warden - his job involved ensuring they were in bed at appropriate hours etc. So there would not have been liability if he was a gardener, for instance
Mattis v Pollock
Where D2 encourages D1 to use violence in the course of their employment, then D2 will be VL for any subsequent violent acts committed by D1
Weddall v Barchester Healthcare
However, premeditated and spiteful acts of violence are likely to fall outside of D1’s course of employment, so D2 will NOT be VL - even if the violence occurred at the workplace
Wallbank v Wallbank Fox Designs
Instinctive acts of violence at the workplace, however, ARE likely to fall in the course of D1’s employment
Mohamud v WM Morrison Supermarkets
Court reaffirmed the close connection test laid out in Lister v Hesley Hall, and rejected a broader ‘representative capacity test’ argued for by C.
D2 was VL here because D1 was entrusted to deal with members of the public in his job, and there was not a break in the chain of causation between him abusing C verbally at the counter and attacking him on the forecourt.
Does show that VL has quite a broad scope under the current ‘close connection’ test for in the course of D1’s employment, however!
Graham v Commercial Bodyworks
C argued that D2 should be VL for D1 setting C on fire with a dangerous chemical that their employment requirement them to work with - C argued that requiring them to work with the dangerous chemical fell within the close connection test.
Court rejected this argument - D2 is not vicariously liable for a tort committed by D1 where D2 merely created a risk - not sufficiently close connection between the risk and reckless actions of D1.
Cf. to Mohamud in that it has been limiting of the scope of the close connection test!
Majrowski v Guy’s NHS Trust
VL extends beyond merely negligent or violent acts and can also include sustained acts by D1 like harassment
Lister v Romford Ice
D1 can also be liable in addition to D2 being liable to insurance companies, where D1 is a skilled worker under a contractual duty of care which they have breached
Woodland v Swimming Teachers’ Association
D2 can be liable even if D1 is not their employee but merely an independent contractor if they have a non-delegable duty of care - idea for these duties is that although D2 can delegate the work to D1, they cannot delegate the duty they are under, so are still VL if D1 (as an independent contractor) commits a tort/acts negligently.
Three main features for a successful claim on the basis of D2 owing a non-delegable duty:
1) C is someone who is especially vulnerable
2) Some kind of prior relationship between D2 and C, which puts C into the actual custody of D2
3) C has no control over how D2 performs their duty
This was a 2013 case and closed up a VL loophole where D2 outsourced work in order to avoid liability = good development as it is limited in scope and justified on public policy merits
Salsbury v Woodland
Extra-hazardous activities for which a landowner might be liable, even through using an independent contractor, are those which are dangerous even if carried out with caution by those skilled in the activity
NA v Nottinghamshire CC
The imposition of non-delegable duties are ALWAYS subject to the assessment of whether it would be fair, just and reasonable to impose them in the circumstances
Bernard LJ also said that a non-delegable duty cannot be owed in respect of D1 committing an intentional tort (e.g. assault/battery)
A v MoD
Dicta by the court stated that hospitals owe non-delegable duties to their patients - this seems like it would be the case under Woodland v Swimming Teachers’ Association
