Vicarious Liability

Question 1

Airfix Footwear v Cope

Answer 1

Ratio: Paying income tax through PAYE can be evidence of an employment relationship.

Facts: A woman worked at home manufacturing parts of shoes for the company. The company argued that she was not an employee.

Question 2

Argent v Minister of Social Security

Answer 2

Ratio: The amount of control exerted and the ability to restrict the individual from taking other work is a significant indicator of whether there is an employment relationship.

Facts: A teacher was almost entirely free from the control of the school and did not teach from a syllabus. He was allowed to leave whenever to attend acting interviews. He was held not to be an employee.

Question 3

Bayley v Manchester Railway

Answer 3

Ratio: A railway porter dragging a man off a train for not having a ticket = in the course of employment.

Question 4

Beard v London general Omnibus

Answer 4

Ratio: An example of an employee going on a ‘frolic of their own’.

Facts: A bus conductor attempted to drive a bus, without training or authorisation, and injured the claimant.

Question 5

Century Insurance v NI Road Transport.

Answer 5

Ratio: Example of actions within the course of employment.

Facts: Lorry driver caused an explosion by having a cigarette and filling his lorry with fuel at the same time. Held to be within the course of employment because filling with fuel was incidental to his duties as an employee.

Question 6

Daniels v Whetsone

Answer 6

Ratio: Example of an act not in the course of employment

Facts: A bouncer attacked a man outside a nightclub. The man was not trying to enter the club and so it was not in the course of employment.

Question 7

Joel v Morrison

Answer 7

Ratio: When an employee goes on a frolic of his own, his employer will not be liable.

Facts: The claimant was hit by a horse and cart driven by the defendant’s employee. The driver had taken a large detour to visit a friend.

Question 8

Limpus v London Omnibus

Answer 8

Ratio: Example of an act in the course of employment.

Facts: A man was injured after a bus driver got into a race with another bus driver. The actions were those of an employee carrying out his duties in an unauthorised way, so it was in the course of his employment.

Question 9

Lister v Hesley Hall

Answer 9

Ratio: Established the close connection test - if there is a close connection between the employee’s duties and the negligent act, their actions will be in the course of employment.

Facts: A warden at a children’s home with limited supervision sexually abused some of the children he was employed to protect.

Question 10

MAGA v Trustees of Birmingham Archdiocese

Answer 10

Ratio: There must be a sufficiently close connection between the actions and the employment.

Facts: A priest had sexually assaulted a boy. He had not done so using his position as a priest and so there was a sufficient disconnection with his employment.

Question 11

Makanjuola v MPC

Answer 11

Ratio: An example of an act outside the course of employment.

Facts: The defendant police officer had sex with an illegal immigrant in exchange for not reporting her status. Held that his actions were outside the scope of employment and so the MPC was not liable.

Question 12

Massey v Crown Life Insurance

Answer 12

Ratio: Labelling of an employment relationship is indicative but not conclusive.

Facts: Massey set himself up as a company and changed his employment status with his work from a contract of employment to a contractor relationship.

Question 13

Mattis v Pollock

Answer 13

Ratio: An example of an act in the course of employment.

Facts: A bouncer stabbed a patron after a previous disagreement. He had been encouraged to use force previously by his employer and so this was held to be in the course of employment.

Question 14

Mersey Docks v Coggins and Griffiths

Answer 14

Ratio: Generally, it is presumed that the original employer remains liable for a contracted-out employee.

Facts: A crane driver was hired out, and whilst under the control of the contracting party, negligently injured somebody. The contracting party successfully argued that the original employer retained responsibility.

Question 15

Mohamud v WM Morrison Supermarkets

Answer 15

Ratio: 1. Applied the ‘close connection’ test from Lister v Hedley Hall. The court found that ejective the customer and the following attack were a continuous action and connected to the employe’s work of supervising the petrol station. 2. Extends the scope of liability of employers for their actions to cover an employee acting criminally.

Facts: A Morrison’s petrol station employee abusively told a customer to leave, then attacked him on the forecourt. The customer brought a case against the supermarket. Held that the supermarket was liable as there was a sufficiently close connection.

Question 16

O’Kelly v Trusthouse Forte

Answer 16

Ratio: Mutuality of obligation is a strong indicator of an employment relationship.

Facts: Waiters at a London Hotel were not obliged to turn up when asked under their contract and the hotel was not obliged to offer them work.

Question 17

Ready Mixed Concrete v Minister of Pensions

Answer 17

Ratio: Established the ‘economic reality’ test, which states you must look to the overall nature of the relationship between the individual and the employer. 1. Is there remuneration in exchange for personal service and mutuality of obligations? 2. Control 3. All other facts consistent with an employment relationship.

Facts: A driver paid for his lorry, but had company uniform, colours and a salary.

Question 18

Rose v Plenty

Answer 18

Ratio: Vicarious liability can be established if an employee is acting in the course of employment but in an unauthorised way.

Facts: A milkman allowed a child to help with his rounds despite an express prohibition. Someone was then injured. Vicarious liability was established on the basis that the employee was acting in the course of employment but in an unauthorised way.

Question 19

Smith v Stages

Answer 19

Ratio: Although commuting to work is not in the course of employment, travelling as part of your job can be.

Facts: A businessman travelling in the course of employment was involved in an accident.

Question 20

Twine v Bean Express

Answer 20

Ratio: Where an action is expressly prohibited, generally the employer will not be vicariously liable if an employee ignores the prohibition.

Facts: A van driver picked up a passenger, despite express prohibitions from his employer. The driver negligently crashed and the passenger was injured. Vicarious liability was not available.

Question 21

Various Claimants v Barclays Bank

Answer 21

Facts: Barclays was held vicariously liable for sexual assaults committed by a doctor during the medical examination of job applicants.

Question 22

Viasystems v Thermal Transfer

Answer 22

Ratio: Where both employers have equal control over an employee it is possible they can have dual liability.

Facts: A sub-contracted employee negligently caused property damage, after failing to properly fit an air conditioning filter.

Question 23

Warner Holidays v Secretary of State for Social Services

Answer 23

Ratio: Expanded the list of factors to be considered in using the economic reality test from Ready Mixed Concrete: level of control; provision of tools and equipment; salary; tax/PAYE/NI; sick pay; bearing the risk of profit/loss; integration within the organisation; control over hours of work; right/ability to do other work; how the parties describe the relationship.

Facts: Warner Holidays argued that it was not liable for national insurance contributions for its holiday camp entertainers. It claimed they were contractors. The claim failed.

Question 24

Warren v Henleys

Answer 24

Ratio: Generally criminal acts are considered to have been committed outside the course of employment.

Facts: A petrol station worker physically assaulted a customer who threatened to call the police on him.

Question 25

Yewens v Noakes

Answer 25

Ratio: The more control a potential employer can exert, t the more likely the individual is to be an employee.

Facts: A tax case concerning the status of a clerk.

Question 26

Express and Echo Publications v Taunton

Answer 26

Ratio: If a worker is entitles to send a substitute this is not an employment relationship.

Question 27

Autoclenz Ltd v Belcher

Answer 27

Ratio: 1. The written terms of an agreement are the starting point. 2. A worker’s employment status will not be negated if his written contract includes a substitution clause but this does not reflect the reality of the arrangement.

Question 28

McFarlane v Glasgow CC

Answer 28

Ratio: If the substitution clause is fettered so that the employer chooses the substitute this will still be an employment relationship.

Question 29

JGE v Trustees of The Portsmouth Roman Catholic Diocesan Trust

Answer 29

Ratio: Established the akin to employment test - is the relationship so close in character to one of employer/employee that it is fair and just to hold the defendant responsible?

Question 30

Claimants v Institute of the Brothers of the Christian Schools

Answer 30

Ratio: Five things to consider when determining whether a relationship is akin to employment - 1. Employer is more likely to have means to compensate. 2. Tort will have been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf. 3. Tortfeasor’s activity is likely to be part of the business activity of the employer. 4. By allowing the tortfeasor to carry out the activity, the employer created the risk of the tort being committed. 5. Tortfeasor will, to some extent, have been under the control of the employer.

Question 31

Rowe v Herman

Answer 31

Ratio: Independent contractors are responsible for their own actions and should take appropriate precautions.