Vicarious liability Flashcards
VL
D is liable to the claimant for the tort act of someone else
commonly used in employee/employer relationship
Justifying VL: when should employer answer for tort of his employee
If A injury B then A should pay but C is the one that pays
Imperial chemical - VL seeks social convenience through rough justice
Lister - possible for employer to seek damage from employee but rarely happens
Justifications
- Employer acts through his/her employees
Reedie v London and North - employer achieves its objectives through its employees - so they should say for cost where they fail to live up to expectations - A rule of convenience - employee that has enough money to compensate and satisfy the judgement
Atiyah 1967 - ensures injured person does not go uncompensated
Public policy - Catholic Child welfare
Implied term of employment contract - Neyers - we should assume it is implied in their contracts that there is a mechanism of VL in play
VL for torts of employees
Catholic Child Welfare: to establish VL against employer S must show that:
- employee committed a tort
- relationship between D’s employer and tortfeasor that is cable of giving rise to VL
- close connection that link relationship between tortfeasor and employer and commission of tort
Did employee commit a tort?
Majrowski v Guys - encompasses all tortious act under common law or in statute
- no need to go through breach and causation
Was there a relationship between D and the tortfeasor that can give rise to VL?
courts identity variants:
- contract of service - will give rise to VL
- contract for service - generally you are not liable for the torts of independent contractor
- relationship akin to employment (person not subject to contract but still performs functions to that of an employee) - doesn’t satisfy the requirement (ex uber drivers)
Significance of control
Yewens v Noakes - employee is anyone who had control over his/her employee
Cassidy v Ministry - problematic - may jobs that don’t have that level of control
Facts - doctor argued he was not subject to control of his employer - his professional role meant that he wants in a master servant relationship
Kahn Freud: did not agree - said it was unrealistic and almost grotesque - some employer don’t control the performance of the work - airline pilots, captain of ship
Key determine factors- courts look at character of relationship and work out if there is an employer/employee relationship
Ferguson v Dawson - workers claim they were self employed - but employer could dismiss the workers and redeploy them to other task and provided them with tools
- this was employer/ employee relationship according
Market investigations - control can no longer be regarded as the sole determining factor - Ld Cooke
- Facts: were on part time contract the reason they were regarded as employee because they had limited discretion when carrying out task
Ready Mixed concrete - drivers had to buy their own vehicle and maintain them at their own cost but required to paint vehicle in company color and wear company uniforms
- Mckenner - drivers owned their own vehicles and took chance of profit and loss suggested that in fact they were independent contractors
Relationship akin to employment
will attract liability if it fair and just to do so
Catholic child welfare - 170 claimants sued teaching order for sexual abuse. teachers were not formal employees no formal contracts - they lived at the school and teaching order catered to their needs. they existed in a payment akin relationship
- SC said the absence of control link was immaterial the purpose of the order was to provide teaching and the teachers acted in furtherance of that mission - for that reason teaching order was VL for for torts committed by teacher brothers
Cox v Ministry - some relationships are closer that employer/employee - Ministry VL liable for torts committed by prisoners working in kitchen
- not employees but court found they had no choice but to work in kitchen for that VL arose
Armes - held local authority could be liable for abuse committed by foster parents - its a relationship based on care and trust, authority had statutory duty to appoint foster parents
- torts were for furtherance of that duty
Barclays Bank - bank referred new employees to doctor for examination - he assaulted the people referred to him
- Bank was VL for torts committed by doctor
- Doctor was independent contractor the process of referring new employees was part of the bank activities - for this reason bank was VL
What is there are two or more employers?
Mersey Docks and Harbour Board - harbour board hired a crane driver to accompany off docker - driver whilst working for the company was negligent and injured a worker
- Harbour board found to be liable for what happened
- employer remains responsibility of the first employer
Viasystems ltd - business integration test
- two employers could be VL where the worker is integrated into the operation of both employers - it will be fair and just to make both employers answer for the tort
- confirmed in catholic child welfare
Was there a close connection between D and the tort feasor and the commission of the tort
Salmond test - VL would arise where: An employee acts in the course of employment if his/her conduct was
- authorised by the employer
- considered to be an unauthorised means of performing the job for which he is employed
won’t work in sexual abuse cases
Lister v Hesley - acts deemed to be ‘closely connected to the job will fall within the course of his/her employment
- can be used in sexual abuse cases
Century insurance - worker drove petrol tanker, while delivering fuel he decided to to have a cigarette - lit with match and discarded it - it ignited the petrol
- court said it was an act of comfort and convenience that will fall within the scope of employment
Smith - employees sent to whales to do job they got ordinary salary plus travel expenses - they decided to drive there
- they worked through the night and didn’t have any sleep on the way back they crashed
- employer was VL the journey well within course of employment
Whatman - employee to horse and cart home for lunch, horse escaped and caused damages
- employer VL the employee acted within the general scope of his employers authority
Storey - employe drove to friends house after work trip had nothing to do with employee job
- employer not VL for damage occasioned by reckless driving
Stanton - employee cycled across premises to collect wages from office
- employer VL when employee crashed into someone while riding
- court said collecting wages was incidental act of employment
Prohibited or criminal conduct
Plumb v Cobden - prohibitions which limit sphere of employment and prohibition which only deal with conduct within the sphere of employment
Limpus v London - employer told bus driver not to race other buses. A driver disobeyed and crashed
- despite instruction employer was VL - employee action was found to be unauthorised mode of doing job it attracted VL
Rose - milkman allowed child to ride with him on deliveries. child was injured while sitting in the back and suffered injury
- Employer was VL because child was helping to further employers interest
Poland v Parr - employee punched who he believed stole from employer
Lister v Hesley - warden of boys care hone sexually abused boys in his care
- no way you could claim this was authorised by employer neither does it further employer mission
- close connection test - if intentional tort is closely connected to the work of tort feasor it would be fair and just to impose VL on employer
Dubai Aluminum
Catholic child welfare - VL imposed on teaching warden because it created or enhanced risk that the victims suffering injury
- idea of creating risk goes toward closed connection test
Mohamud - ‘field of activities’ - tortfeasor attacked a customer and racially abused them - C sued supermarket since they were VL for damage
- SC agreed and held supermarket was liable, serving customers was what the attendant was paid to do so any interaction with customer fell with employee field of activities
Bellman - managing director punched one of his employees at Christmas party after party, he punched him after he criticise his policy on work issue
- Court said it happened within the course of his employment - he was directing mind of company and punch was brought about when he was challenged on work issue
Brayshaw - doctor befriended patient at GP surgery where he worked, was religious and invite him to group
- C said attuning the group cause psychiatric harm and sued doctor
- court said doctor surgery was not VL the doctors acts had nothing to do with his work
Matticks - owner VL when bouncer stabbed patriot - doorman was encouraged to use violence to keep order - night club owner was VL
- even if conduct is prohibited it will attract VL
Irving - acts of passion will take person outside scope of employment
Joel v Morrison - if you go off on a frolic of your own your actions will not attract VL
Liability for the torts of independent contractors
employers cannot be VL for tort of independent contractor unless
- employer owes non-delegable duty to victim
Woodland v Essex - 10 y/o girl attended swimming lessons delivered by independent contractor hired by local authority to teach class - girl got into difficulties in the water was found later upside in the water girl suffered severe brain damage
- they claimed VL could not apply because teacher was independent
- SC disagreed and held they owed non-dleegable duty - they were VL for acts of the contractor
- employer authorised the independent contractor to commit a tort (Ellis v Sheffield)
Woodland v Essex: Ld Sumption non-delegable duty arise where
(a) claimants is especially vulnerable or dependent on protection of the defendant from the rick of injury
(b) there is pre-existing relationship between C and D which (a) placed C in actual custody; care of D and (b) from which it was possible to impute to D the assumption of a positive duty to protect C from harm
(c) had no control over how D chose to perform its relevant obligations
(d) D had delegated to a 3rd party some function which was an integral part of D positive duty to C
(e) 3rd party has been negligent in the performance of the very function assumed by D and delegated by D to him/her
