Vicarious Liability Flashcards
Rationale for vicarious liability
Public policy
a) Control
b) Benefit/burden to employer of risky activity
c) Loss distribution
d) Fair and effective compensation due to enterprise risk
e) Deterrence of further harm
Overview of requirements
a) D1 commits tort
b) D1 is D2’s employee or relationship is akin to employment
c) D1’s tort committed in course of his employment
Leading case for vicarious liability
Various Claimants v Catholic Child Welfare Society (CCWS case)
Employee versus independent contractor
Control, use of own equipment, hire own people, financial risk, management, opportunity for profit (CCWS)
Control inadequate, not only test (Market Investigations v Social Security Minister)
Employee: did not use own equipment, no own helpers, no management, did not price jobs (Lee Ting Sang v Chung Chi-Keung)
Independent contractor: provide replacements if unavailable, multiple employers (Hall v Lorimer)
(Note: did not use own equipment, worked at premises, no exposure to profit –> need to balance)
Dual vicarious liability
“Shared control” situation (Viasystems v Thermal Transfer)
Possible situations:
a) Employee used for limited time in general employer’s own sphere of operations (Mersey Docks) - dual
b) Employee is contracted out labour - unknown
c) Seconded to temporary employee for substantial period of time - no dual, sole resp by the temporary employer
Relationship akin to employment
Introduced in CCWS
Rationale: hard to persuade organisations with no corporate status
Applied in Cox v Min of Justice (prison catering manager)
Armes v Nottingham CC (abusive foster parents)
Critique: motivation of expansion as changing nature of modern workplaces (Morgan)
Nothing new about working prisoners, religious orders etc
Course of employment tests
Previously: unauthorised mode test
Now: close connection test
Unauthorised mode test
Rose v Plenty (milkman hiring a boy)
Close connection test
Bazley v Curry (Canada)
Factors: opportunity that the enterprise offered to carry out the breach, extent to which tort furthered aims fo enterprise, intimacy as inherent part of job, level of vulnerability/power
Lister v Hesley Hall (warden of boarding school)
Expansion of close connection test
a) Abuse
b) Violence
c) Harassment
d) Data breach
e) Financial loss
Close connection for abuse
Maga v Trustees of Birmingham Archdiocese of Roman Catholic Church (young boy - work in the outside community)
Close connection for violence
Mattis v Pollock (returned to nightclub with knife)
- No apparent distinction between unauthorised mode of carrying out job and personal acts of vengeance
- Doorman job inherently confrontational, violent
Mohamud v VM Morrison Supermarkets (racist attack at counter, physical assault in front of petrol station)
- Unbroken sequence of events “within the field of activities” assigned to employee e.g. telling claimant not to return to premises
Close connection for violence (against co-workers)
Weddall v Barchester Healthcare Limited/Wallbank v Wallbank Fox Designs
a) Healthcare home manager assaulted due to personal grudge
b) Incompetent employee assaults another employee that assists him
Graham v Commercial Bodyworks Ltd (prank gone wrong)
Bellman v Northampton Recruitment Ltd (Christmas party)
Close connection for harassment
Majrowski v Guy’s and St Thomas’ NHS Trust
Close connection for data breach
VM Morrison Supermarkets plc v Various Claimants (downloaded data and leaked to Internet to harm employer)
