Vicarious Liability

Question 1

What are the three elements of vicarious liability?

Answer 1

1. Tort is committed by X.
2. X is in an employment relationship with Y (or some other vicarious relationship) and
3. X committed the tort in the course of employment by Y.

Question 2

How is the first element established?

Answer 2

Established through usual rules:
Negligence
Trespass
Nuisance

Question 3

How is the 2nd element established?

Answer 3

In order for a defendant to be held vicariously liable for another’s act, the defendant must be the employer (or in a position akin to employer) of that person.

Question 4

How does a court determine who is an employee in the context of vicarious liability?

Answer 4

Traditional method- control test

Question 5

What is the traditional method?

Answer 5

This is where the courts looked to the level of ‘control’ the employer exercised, not only over what the potential employee did but over how they did it as a way of determining employment status (Stephenson Jordan & Harrison Ltd v McDonall & Evans [1952])

Question 6

Organisation/ integration test

Answer 6

Stevenson, Jordan and Harrison Ltd. v Macdonald and Evans (1952)
Whittaker v Ministry of Pensions (1967)

Question 7

Economic Reality Test

Answer 7

Ready-mixed Concrete Ltd v Minister of Pensions and National Insurance (1968)

1. Type of remuneration
2. Control
3. Other contractual features

Question 8

Relevant factors

Answer 8

Warner Holidays Ltd. v SoS for Social Services

Question 9

Mutuality of obligations

Answer 9

O’Kelly v Trusthouse Forte

Carmichael v National Power Plc

Question 10

Labelling

Answer 10

Massey v Crown Life Insurance Co

Ferguson v John Dawson & Partners Ltd.

Question 11

Tax/ PAYE

Answer 11

Airfix Footwear v Cope

Question 12

Ability/ right to do other work

Answer 12

Argent v Minister of Social Security

Question 13

Profit and Loss

Answer 13

Young & Woods Ltd. v West

Question 14

Agency employees

Answer 14

Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd
Viasystems Ltd. v Thermal Transfer (Northern) Ltd.
Hawley v Luminar Lesisure Ltd.

Question 15

What if the tortfeasor IS NOT an employee?

Answer 15

Cox v Ministry of Justice (2016) Supreme Court:

1. Tort committed as a result of activity being undertaken on behalf of employer;
2. Employee’s activity is part of employer’s business activity
3. Employer created the risk of the tort committed by the employee.

Question 16

Cox v Ministry of Justice (2016) Supreme Court:

Answer 16

In this case the Ministry of Justice was held variously liable for the injuries of the catering manager (Cox) at HM Prison Swansea, who was negligently injured by a prisoner (Inder), who was carrying out paid work under supervision in the kitchen, when he dropped a large bag of rice on her upper back. The prisoner’s activity in unloading supplies was ‘akin to employment’ even though his relationship to the prison was not voluntary

Question 17

How is the 3rd element established?

Answer 17

An employer will be liable only for torts committed by an employee ‘in the course of their employment’.

Question 18

What are the approaches to decide whether the tort was committed in the course of employment?

Answer 18

1. Traditional approach

2.

Question 19

Describe the traditional approach.

Answer 19

Professor Salmond:
A tort is committed in the course of employment if:
1. it is expressly or impliedly authorised,
2. or is an unauthorised manner of doing something that is authorised,
3. or is necessarily incidental to something the employee is employed to do.

Question 20

Examples of traditional approach where vicarious liability is found.

Answer 20

1. Limpus v London General Omnibus Co.
2. Century Insurance Co Ltd. v NI Road Transport Board
3. Bayley v Manchester, Sheffield and Lincolnshire Railway

Question 21

Examples of traditional approach where vicarious liability is NOT found.

Answer 21

1. Joel v Morrison “frolic of his own.
2. Beard v London General Omnibus Co.
3. Keppel Bus Co. Ltd. v Sa’ad bin Ahman
4. Daniels v Whetstone Entertainments Ltd.
5. Makanjuola v Metropolitan Police Commissioner

Question 22

Traditional approach- deviations from route

Answer 22

1. Whatman v Pearson
2. Storey v Ashton
3. Smith v Stages

Question 23

Traditional approach- express prohibition

Answer 23

1. Twine v Bean’s Express Ltd.

2. Rose v Plenty

Question 24

Traditional approach- criminal acts of employees

Answer 24

1. Warren v Henly’s Ltd
2. Daniels v Whetstone Entertainments Ltd
3. Heasmans v Clarity Cleaning
4. Irving v Post Office

Question 25

Recent approach- criminal acts of employees

Answer 25

1. Lister v Helsey Hall Ltd ‘close connection test’
2. Mattis v Pollock (t/a Flamingo’s Nightclub)
3. JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust
4. Orr and Others v Institute of the Brothers of the Christian Schools

Question 26

Lister v Helsey Hall Ltd

Answer 26

Mr Grain was employed by Hesley Hall Ltd as the warden of a residential facility attached to a school, which specialised in teaching children with emotional and behavioural difficulties. Its purpose was to provide the children with a homely and caring setting—beyond and distinct from their school environment—in which to adjust to everyday living. The warden was responsible for the discipline and day-to-day running of the house. Over the course of four years he systematically sexually abused a number of boys, including the claimants.19 The claim that the defendants, the warden’s employers, were personally negligent in their care, selection and control of the warden was rejected at first instance and was not pursued further. The question for the House of Lords was whether they were vicariously liable for the warden’s acts of abuse.

A unanimous House of Lords held that the warden’s actions were ‘so closely connected’ with his employment that it would be fair and just to hold the employers vicariously liable. Though ‘sexual abuse is a particularly offensive and criminal act of personal gratification on the part of its perpetrator and therefore could be easily described as the paradigm of those acts which an employee could not conceivably be employed to do’ (at [53]), the sexual abuse in this case ‘was inextricably interwoven with the carrying out by the warden of his duties’ (Lord Steyn at [28]).

Question 27

Recent approach- acts of employees

Answer 27

1. Mohamud v WM Morrison

2. Fletcher v Chancery Lane Supplies

Question 28

Mohamud v WM Morrison

Answer 28

A petrol station attendant assaulted the claimant (who was of Somali origin) in a brutal and unprovoked attack while at work. Finding his employer vicariously liable for his attack, Lord Toulson was ‘not persuaded that there is anything wrong with the Lister approach as such. It has been affirmed many times and I do not see that the law would now be improved by a change of vocabulary’ (at [46]). The court therefore had to consider two matters. First, the nature of the employee’s job, that is the ‘functions or “field of activities” [that] have been entrusted by the employer to the employee’ (at [44]) and, secondly, ‘whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice’