Vicarious Liability

Question 1

Three steps to establish vicarious liability

Answer 1

• a tort was committed
• by an employee
• in the course of employment

Question 2

Test of an employee

Answer 2

Ready Mixed Concrete

• Remuneration
• Control
• Other Contractual Provisions

Question 3

Remuneration

Answer 3

• Who pays them and how?

- Are they paid a regular salary or a lump sum?

Question 4

Control

Answer 4

• What can they be required to do?
• The higher level of control, the more likely the person is an employee (Yewens v Noakes)
• tax case about the status of a clerk

Question 5

Other Contractual Provisions

Answer 5

Are the provisions of the contract consistent with a contract of service?
- if the employee bears the risks, profits and losses of the job then he is unlikely to be an employee
(Ready Mixed Concrete)

Question 6

Ready Mixed Concrete case

Answer 6

The defendant drove the company’s cement mixer, which he was responsible for hiring, insuring and running, and was paid per mile, so he was held not to be an employee.

Question 7

Further Factors to consider when examining contractual provisions.

Answer 7

Warner Holidays v Secretary fo State for Social Services
(had to pay national insurance for it's contracted holiday camp entertainers)
- Provision of tools and equipment
- Tax
- Hours of Work
- Exclusivity
- Labelling
- Mutuality of Obligations
- Integration

Question 8

Does the employer provide them with tools and equipment

Answer 8

Ready Mixed Concrete

Question 9

Did the employer pay his tax through PAYE?

Answer 9

Airfix Footwear v Cope

- woman worked from home making shoes

Question 10

The Defendant did not deduct for National Insurance and tax so deemed an employee

Answer 10

Ferguson v Dawson

Question 11

Can the employer prevent him from taking other jobs?

Answer 11

Argent v Minister of Social Security

- teacher did not teach the syllabus and was free from the school

Question 12

Is he called an employee?

Although this is not conclusive

Answer 12

Massey v Crown Life Insurance

- changed his name status from an employee to a contractor

Question 13

Can the employer require the employee to work, and vice versa?

Answer 13

O’Kelly v Trusthouse Forte

- Waiters at a london hotel were not obliged to turn up when asked and the hotel were not obliged to give them work

Question 14

Is the employee integrated into the business of the defendant?

Answer 14

Stevenson v Macdonald & Evans

Question 15

When lending employees, the presumption is that the original employer remains liable.

Answer 15

Mersey Docks v Coggins and Griffiths

- hired out crane driver negligently injured somone

Question 16

When lending employees, where both employers have equal control over the employee then they may have dual liability.

Answer 16

Vivasystems v Thermal Transfer

- sub-contracted employee negligently fitted an air conditioner causing property damage

Question 17

The contracted doorman of a nightclub was an employee as the nightclub had detailed control over him and he had to wear a uniform

Answer 17

Hawley v Luminar Leisure

Question 18

The court will assume that the employee is lend under the employment of the initial employee unless otherwise proven

Answer 18

Biffa Waste v Machinenfabrik

Question 19

Vicarious liability may exist even where there is no contract of employment as long as the relationship between the tortfeasor and the defendant is ‘sufficiently akin to that of an employer and emplyee’

Answer 19

Christian Brothers

Question 20

Teachers belonging to an unincorporated religious association working at a school were ‘akin to an employment relationship’

Answer 20

Christian Brothers.

Question 21

Vicarious liability can exist where the tortfeasor carries on activities assigned to him by the defendant as ‘an integral part of the defendant’s operation and for its benefit’

Answer 21

Cox v Ministry of Justice

- caterer was injured by a prisoner serving in the canteen

Question 22

Foster parents has a relationship with the Local Authority that was akin to employment.

Answer 22

NA (Armes) v Nottinghamshire CC

Question 23

NA (Armes) v Nottinghamshire CC: 5 points for a relationship akin to employement

Answer 23

• The body has the means to compensate
• The tort was committed as a result of activity undertaken on behalf of the body
• The activity is an integral part of the bodies’ activities.
• The body created the risk by placing the claimant in the activity
• A high degree of control is not necessary for vicarious liability to be imposed.

Question 24

The bank was liable for sexual assaults committed by the doctor during those examinations

Answer 24

Various Claimants v Barclays Bank

Question 25

Priest of the Catholic Church were found to be akin to employees

Answer 25

JGE v English Province of our Lady Chapel

Question 26

An employee will be in the course of employment if there is a ‘closeness of connection’ between the employee’s act and their employment

Answer 26

Lister v Hesley Hall

Question 27

Bus drivers racing each other were held to be in the course of employment

Answer 27

Limpus v London Omnibus

Question 28

Railway porter pulling a man of the train was held to be in the course of employment

Answer 28

Bayley v Manchester Railway

Question 29

Demanding and making an arrest as an off duty police officer was held to be in the course of employment

Answer 29

Bernard v Att Gen of Jamaica

Question 30

Fight on the rugby field after the match had finished was held to be in the course of employment

Answer 30

Gravil v Redruth Rugby Club

Question 31

Petrol Tanker driver smoking and causing a fire was held to be in the course of employment

Answer 31

Century Insurance v NI Road Transport

Question 32

‘interacting with customers’ was held to be in the course of employment

Answer 32

Mohamud v Morrison Supermarkets

- racist abuse against a customer

Question 33

If the employee’s act is a ‘frolic of his own’ it will generally not be in the ‘course of employment’

Answer 33

Joel v Morison

- driver of the horse and cart had taken a large detour to visit his friend

Question 34

Conducting and driving a bus unasked was held not to be in the course of employment

Answer 34

Beard v London Omnibus

Question 35

A bouncer following a victim home and attacking him was held not to be in the course of employment

Answer 35

Daniels v Whetstone

-

Question 36

A policeman helping an immigrant woman if she had sex with him was held not to be in the course of employment

Answer 36

Makanjuola v Metropolitan Police Commissioner

Question 37

Harassment between two police officers who had broken off a relationship outside work was held not to be in the course of employment

Answer 37

Allen v CC Hampshire

Question 38

Express Prohibition

Answer 38

Employers are generally not liable where an employee has acted contrary to an express prohibition

Question 39

A sign in a lorry’s cab forbade a lorry driver from picking up hitchhikers, so the company was not liable for the hitchhiker’s injuries when the employee negligently crashed his lorry after picking up a hitchhiker.

Answer 39

Twine v Bean Express

Question 40

A 13 yo boy injured when helping a milkman on his rounds was able to recover because it was held that the milkman was still acting within the course fo his employment despite a prohibition by his employer on using children to assist with his round

Answer 40

Rose v Plenty

- an unauthorised way of doing something authorised

Question 41

Derivations from an authorised route are not in the course of employment

Answer 41

Smith v Stages

Question 42

Criminal acts are generally thought not to be in the course of employment

Answer 42

Warren v Henleys

- petrol station worker assaulted a worker

Question 43

People may still be in the course of employment if there is a close connection between the crime and what they are employed to do

Answer 43

Lister v Hesley Hall

Question 44

Warden committed sexual assaults at a children’s home during employment when he was hired to protected the children

Answer 44

Lister v Hesley Hall

Question 45

A bouncer at a dodgy club, who stabbed the claimant was held to be in the course of employment as he was encouraged to use violence as part of his job

Answer 45

Mattis v Pollock

Question 46

A priest who sexually assaulted a boy was held to have been acting in the course of employment, as there was a sufficient connection with his job

Answer 46

MAGA v Trustees of Birmingham Archdiocese

Question 47

A customer suffered racist abuse from a supermarket employee. It was held that the employee should be seen as ‘wearing the badge’ of his employer.

Answer 47

Mohamud v Morrison supermarkets.

Question 48

Outline of a Vicarious Liability Problem

Answer 48

A tort has been committed
There is an employment relationship
Was the Tort Committed in the course of employment