Vicarious Liability Flashcards
EMPLOYERS’ PRIMARY LIABILITY
McDermid v Nash Dredging [1987]
Vicarious liability is justified on policy arguments and object is to ensure that liability is borne by a D with the means to compensate V (so far as it is fair, just and reasonable to do so)
Facts: C (inexperienced 18yo) employed by D as deckhand and sent to work on a tug and suffered serious injury caused by negligence of master of the ship (T).
Held: D held not to be VL because T is not D’s EE, but nevertheless D was liable because he owed a non-delegable duty to C (before, ER owed NDD to provide competent staff, proper plant and equipment, safe place and safe system of work to EEs, but this case extended this to operation (as distinct from provision) of a safe system of work).
Judgments:
Lord Hailsham:
- In this case the duty was ND in the sense that it could be delegated but D would still be liable if it is not performed (NB Denning in Cassidy – was that case one of an NDD?)
- In this case D had delegated their NDD to the master of the ship and it had been inadequately performed.
NB their lordships thought the extension from provision to operation was self-evident but this isn’t so as provision was under the control of ER while operation depends on isolated acts of negligence by an IC over which ER has no control. Thus the effect is as if VL had been imposed on D (per McKendrick)
VICARIOUS LIABILITY
- General principles
- requirements
- nature
- justification
I. General Principles
- A secondary liability imposed on one person for the tort of another (this party is usually better able to satisfy the judgment than tortfeasor)
- Most significant instance: tortfeasor is an employee of vicariously liable party (or relationships ‘akin to employment’, but not for independent contractors)
- In an employment case court asks whether there is a sufficiently close connection between tort and relationship
- Non-delegable duty: tasks creating risks can be delegated, but duties in relation to these cannot (different from VL because here it someone else’s breach for your duty – it is primary liability)
II. Requirements
1. Sufficient relationship
2. Sufficient connection with tort
III. Nature of Vicarious Liability
Two alternate views:
1. Tort is of the vicariously liable party
2. Tort is of the tortfeasor but liability is of the VLP (greater support of recent cases – Woodland)
IV. Justifications for VL
- Justice argument: the person who benefits from the activity that created the risk, or who contributed to creating the risk, should take the risk
- Economic argument: Costs of an enterprise ought to be internalized to stimulate most efficient level of risk-taking
- Incentive argument: employer has opportunity to select employees/supervise so should provide incentive (doesn’t explain liability where accident is unavoidable)
- Deep pockets argument: need to compensate victims
Stevens, Torts and Rights (2007)
- policy
- what is attributed?
- conclusion
I. Policy
- All arguments suffer from same flaw: fail to explain the “vicarious” part of VL and are arguments for strict liability in general and none justifies confining liability to torts committed by EEs rather than all losses caused by EEs
- Often said that justifications are accumulated, but if none of them explain “vicarious”, then together they can’t either
II. What is Attributed?
- Master’s tort theory is usually dismissed as misleading. But it is possible to defend it –
o We are responsible for actions that we don’t intend (carelessly knocking over a vase).
o If attribution of A’s actions to B is fictitious, then so are authorization, ratification, procurement and conspiracy
o Attribution is common outside the law: in sports games one person’s goal is attributed to the nation’s
- However: attribution can lead to result that EE who carelessly injures himself can sue ER, or an agent who defames himself can sue D who gave authority to publish
o Thus attribution fails – D simply takes responsibility
- BUT attribution explains much of modern law of VL:
o Presents an explanation as to why VL is vicarious
o Same rules employed for contributory fault as for ER’s liability
o Corporation’s “acts” are really the acts of the human agents; corporate liability thus necessitates attribution
o Attribution may result in D committing a tort where EE doesn’t (eg. husband EE injures wife – partners not allowed to sue)
o Where duty is personal to EE, attribution doesn’t lead to ER tort
o Non-compensatory remedies illustrate attribution of act
o If ER who is VL seeks to bring contribution claim, he is treated as the wrongdoer not an innocent party held liable for another’s
- However: attribution is less forceful in cases of NDD
III. Conclusion
- VL largely based on policy led to distortion of the law resulting in uncertainty and confusion.
Kidner, Vicarious Liability: For Whom Should the Employer be Liable?
- Intro
- Can employee mean different things for different purposes?
- function of VL?
- employee for the purpose of vl
. Introduction
- Change in nature of employment led to rise in legalism in employment law that produced technicalities concentrating on contract, so that our understanding of “employment” is skewed towards this and is unsuitable for VL
- Possible solution: Increase range of activities for which ER can be liable for IC (this may be useful but will be limited to cases where there is something special about the IC’s activity, while what is needed is a principle that covers novel relationships between ER and EE)
- Thus definition of EE for the purpose of VL should be flexible enough to reflect the doctrine’s objectives
II. Can “Employee” Mean Different Things for Purposes?
- A word should reflect the purpose for which it is to be used: question of who should be subject to income tax bears little relation to who should be VL for those working for them
- BUT there is benefit in using a known and recognized fundamental legal concept (Atiyah): different definitions for different purposes can “infect” each other inappropriately
- Also could become circular
III. Function of VL
- Distribution of loss doesn’t help except suggesting that a wider test should be used
- Benefit/burden argument: helps decide which risks should be attributable to the ER
- Look at tort from POV of ER and ask whether he could have done anything to prevent it
IV. “Employee” for the Purpose of VL
- Should not be restricted by recent approaches in employment law
Employees and borrowed employees
- requirement s
- employer/independent contractor
- dual employment
- other situations giving rise to vl
I. Requirements
- Sufficient relationship
a. An employer is liable for an employee’s tort
b. Traditionally a contract of employment was necessary but not relationships that ‘fall short of employment’ may apply
II. Employer v Independent Contractor
- A contract of service makes T D’s employee
- A contract for services makes T is an independent contractor
- “Control test” rejected – now multiple factors relevant:
o Scope of duty (EE employed for particular period of time; IC hired to perform a job and can take whatever time he likes)
o Payment (EEs paid wages/salary while IC paid fees for job)
o Personal nature of duty (IC can subcontract but EE must do self)
o Source of income (ER is EE’s sole source; IC often has multiple)
o Control
o Equipment (EEs use ER’s equipment but IC brings his own)
III. Dual Employment
- If T is an employee of D1 who sends him to work for D2:
o Initial presumption: T is D1’s employee (Mersey)
o But D2’s if T so much under his control that he had power and responsibility to stop T (Hawley v Luminar)
o But if both D1 and D2 in control and responsibility to prevent tort, then both are ER (Viasystems)
IV. Other Situations Giving Rise to VL
- Police: Chief police officer of an area in which T works is VL
- Agency: D appoints T as agent and T commits a tort while acting within the scope of his authority – D is VL
- Car owners: D requests T to perform a task driving D’s car and T commits a tort (eg. injuring someone) – D is VL (by analogy to agency)
- Partnership: S10 Partnership Act 1890: partners will be VL for actions of one partner “in the ordinary course of the business of the firm”
- Joint venture: D will be VL for T’s tort committed in the course of furthering a joint venture between D and T
JGE v Portsmouth Roman Catholic Diocesan Trust
Facts: C alleged sexual abuse by T, a priest, when living in a children’s home operated by an order of nuns (D). D denied liability on ground that T wasn’t an employee.
Held: Although T wasn’t strictly speaking an employee the relationship was close enough in character to be “akin to that of an employee”
Judgment:
Ward LJ on the policy considerations underpinning VL
- Clash of two principles: there ought to be an effective remedy for V for another’s wrongful act; D should not be held liable unless at fault. Triumph of former over latter can be explained on policy grounds:
o Control – however, per Atiyah it shouldn’t be treated as sufficient for always imposing liability or a necessary reason for imposing it
o Compensation (deep pockets) – ensures that V has solvent D but doesn’t explain why ER not liable for IC
o Deterrence – larger economic units are in best position to reduce accidents through efficient organization and discipline of staff. However, this implies that ER can avoid VL by showing no fault (eg. in Germany) but this isn’t true (eg sexual abuse cases)
o Loss-spreading – burden will be spread among ER’s clients and insurers (but ER of domestic servants?)
o Enterprise liability – liability for torts “characteristic of its activities” (but charitable organizations?)
- No single rationale provides complete justification – VL is justified by a combination of policy considerations
Ward LJ on whether there is a relationship akin to employment
- Control test: factual and not legal right to control is critical – depends on EE’s integration into ER’s organization and EE’s accountability to ER
- Organization test: how far the activity is a central part of ER’s business from POV of its objectives
- Integration test: how far activity is integrated into organizational structure of the enterprise
- Entrepreneur test: whether T is more like an IC or EE
→ Mersey Docks v Coggins
When employee of D1 is hired out to D2 and commits a tort, there is an initial presumption that D1 is still the employer unless there is “clear evidence” that employment “had been transferred”. Correct test is who has control over the method of performance of task occasioning the tort.
Facts: Harbour Authority employed a crane operator and let him with a crane to stevedores. Terms of the let provided that he would be a servant of the stevedores. He commits a tort.
Held: Harbour Authority was vicariously liable.
Lord Porter:
- Many factors had to be kept in mind (who pays, who can dismiss, how long alternative service lasts etc.)
- Most satisfactory test is whoever is entitled to tell EE how to do the work upon which he is engaged is VL (not just control the task to be performed, but also method of performance)
- In most cases direction is not given, but important question is who is entitled to direct
- Crane operator cannot be held to change employers each time he discharges a fresh ship; this would create too much uncertainty as to who would be responsible for his health, employment and accident insurance
NB question here is not whether T was an EE but who’s EE. Thus it is possible for a D to be ER for one purpose but not other purposes (affirm’s McKendrick’s solution of ER for purpose of VL only)
Cassidy v Minister of Health [1951] 2 QB 343
A hospital authority is liable for negligence of doctors and surgeons employed by the authority arising in the course of the performance of their professional duties. Lord Denning says that control is not the basis of liability, but because the Ministry had the power of dismissal.
Facts: C went to hospital for routine hand operation but left with stiff fingers caused by doctor’s negligence. Sued Ministry of Health in capacity as employer.
Held: Ministry was VL as the doctor was a servant of the hospital
Lord Denning
- Ministry owes a duty to give proper treatment and though it may delegate performance of that duty to those who are not its servants it remains liable if that duty is inadequately performed
- There should be no difference in law between an authority that employs doctors and any other who employs others to do duties for them
- Reason why employers are liable is not because they can control the way the work is done (often insufficient knowledge) but because they employ the staff and chose them for the task and have the power of dismissal
(?) NB on Denning’s analysis it seems that Ministry breached its own duty to give proper treatment, but then likens cases of hospital authorities to cases of other employers
NB Browne-Wilkinson in Wilsher v Essex Area Health Authority – “a health authority which so conducts its hospital that it fails to provide doctors of sufficient skill and experience… may be directly liable in negligence to the patient”
Ready Mixed Concrete v Minister of Pension
Facts: C engaged owner-drivers to deliver concrete under written contracts describing them as “independent contractors”, to enter into hire-purchase agreements with C to purchase a lorry and pay for its maintenance but the mixing equipment on the lorry was C’s property. C asked whether one of these owner-drivers was an employee.
Held: No – he was a small businessman.
MacKenna J
- A contract of service exists if:
o Servant agrees to provide work and skill in a service for the master in return for renumeration
o Servant agrees that he would in performance be subjected to employer to a degree as to make him master
o Other provisions of contract are consistent with it being a contract of service
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510
Test for determining who is VL is entitlement of control, though not failure to control. Established that there could be dual employment in a single act. Control is not the sole test – integration into the business of an ER also applies.
Facts: C contracted with D1 to install air conditioning and D1 subcontracted with D2 for ducting work. D2 hired a fitter and his apprentice (T) from D3 to work under supervision of D2’s employee. T crawled through duct causing damage.
Held: D2 (who was to do the ducting work) and D3 (who supplied the fitter) were both VL as they both had capacity to control.
Lord May:
- Inquiry should ask whose task to prevent the negligent act
- Central question: who was entitled/obliged to give orders as to how the work should be done
- Laughter (no dual liability for a single act) rejected because policy then was to limit multiple party liability but CNA 1945 and Contribution Act 1978 show that this is no longer true
- Control is not the only factor: must also ask whether EE was so much part of both ERs that they should both be held liable (as VL makes liable an ER without fault he has to be treated as picking up the burden of a relationship made for benefit)
Biffa Waste Services Ltd v Maschinenfabrik Abrik Ernst Hese GmbH [2008] EWCA Civ 1257, [2009] QB 725, [41]-[61]
Honeywell should be restricted to exceptional cases where the hazard would remain even with proper safety precautions.
Facts: D contracted to build a plant for C and D’s IC caused a fire that damaged the plant. D appealed against finding that he was liable for IC’s failure because he had sufficient control over the method of performing the task.
Held: Appeal allowed – no liability because of the IC rule. Supervision was not control and on this point the trial judge erred.
Judgments: The extra-hazardous task exception should be restricted to exceptional situations where the hazard would remain whatever safety steps were taken.
Hawley v Luminar
Affirmed the “control” test for finding VL but also explored a transfer of responsibility test asking whether tortfeasor was sufficiently “embedded in” the business of any one D.
Facts: Nightclub door steward hired to keep order at Luminar (D1)’s nightclub punched C causing brain damage. D1 didn’t hire the steward directly but contracted with ASE (D2; in liquidation) to provide appropriate staff.
Held: D1 was regarded as sole employer.
Lord Hallett:
- D1 could easily have picked qualified door staff himself; he contracted with D2 to get around employment laws
- Though D2 had undertaken to provide competent door staff, its manager and staff couldn’t have accepted responsibility for controlling this sort of behavior (detailed supervision was from D1)
- Tortfeasor was present at the club, dressed in D1’s uniform and taking instructions from D1 for 2 years – to a passerby, he would have been an EE of D1
- Thus tortfeasor was “embedded in” the business of D1
NB Lord Phillips in Various Claimants said that this case could have been approached as a case of dual employment.
Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1
Vicarious liability is justified on policy arguments and object is to ensure that liability is borne by a D with the means to compensate V (so far as it is fair, just and reasonable to do so)
Facts: Tortfeasors (sexual abuse in the course of teaching) were members of diocesan bodies (D1) and institute (D2) where tort took place (not employers).
Held: D1 and D2 jointly liable – relationship “akin to employment” suffices for the first limb of the test
Judgments:
Lord Phillips on the policy justification of VL:
- Objective of VL is to ensure, so far as it is fair, just and reasonable, that liability is borne by a D with the means to compensate V
- These Ds can usually be expected to insure against risks for these liabilities
- Policy reasons and criteria must be examined to decide whether there is VL
On criteria for VL:
- Employer will be VL when employee commits tort in the course of employment
o Employer more likely to have means to compensate
o Can be expected to have insurance
o Tort committed by employee on behalf of employer
o Employee’s activity likely part of employer’s business
o Employer created the risk of the tort by employing the employee to carry out the task
o Employee will to a degree be under employer’s control
On the synthesis of the two-limb test:
- Consider relationship of D1 and D2 to see whether it can give rise to VL
- Connection that links the relationship in step 1 and D1’s act or omission (hence synthesis)
On why the Institution is liable:
- Had all the essential elements of ER and EE relationship
o D2 conducted activity as if it were a corporate body
o Provincial directed T to undertake teaching activity
o T contracted with D1 but because D2 required it
o T’s teaching was to further D2’s objective/mission (not to train teachers but to provide religious teaching to the boys)
- However differed to ER and EE relationship because
o T bound to D2 by vows not contract
o D2 didn’t pay T; T had to transfer all earnings to D2
- Differences are immaterial
- Thus the relationship between T and D2 was sufficiently akin to that between ER and EE to satisfy Stage 1 of test
A simpler analysis to satisfy Stage 1:
- The Brothers (including T) were an unincorporated association so the fault of one led to liability to all (like in partnerships), just like as if T negligently injured a pedestrian the whole institute would be liable
On Second Limb (“close connection”)
- Criterion for “close connection” in abuse cases is that D is VL when he uses his relationship with T to further D’s own interests, and in doing so created/significantly enhanced risk that V would suffer the relevant abuse
- Present case satisfies it because relationship was much closer than just employment: D’s object was the object of every Brother
- This object provided the close connection because abuse was diametrically opposite and therefore close to it
- Also the boys were vulnerable (they were “prisoners” of the school and wouldn’t be believed if they revealed abuse)
NB “Simpler analysis” surely goes too far as partnerships VL was enshrined in statute and would not otherwise have been obvious; also not sure that this extends to members of an UA
NOTE Lord Hope, ‘Tailoring the law on vicarious liability’ (2013) 129 LQR 514
- Intro
- NZ case of McE
- Various Cs v Catholic Welfare Society
- Danger of Over-Extension of VL
I. Introduction
- Recognized in multiple jurisdictions that ER will be VL for EE’s sexual abuse in the course of employment, but is it right to extend this liability to religious orders who borrow employees over whose day-to-day work the religious order has no control?
II. New Zealand Case of McE
- Lord Ordinary relied on Lister v Hesley Hall to hold religious order VL as there was a close connection between nature of employment and tort but reversed by Inner House:
o Lord Ordinary failed to consider need to establish D had a degree of authority, control or responsibility over T (manager of school had this relationship as religious order only put forward candidates for employment by manager)
- Ct should have considered Viasystems (dual ER possible) but ct probably would have dismissed it as irrelevant because it concerned only ER-EE relationships and ct didn’t like to develop the law (also control issue)
III. Various Claimants v Catholic Welfare Society
- Facts almost identical to case of McE
- However Viasystems was considered and applied: accepted that dual liability is not confined to “borrowed employee”
IV. Danger of Over-Extension of VL
- Lord Hobhouse warned in Lister that legal rules must have greater clarity and definition than simply explaining their reason for existence and social need for them (otherwise will lead to uncertainty and confusion)
Cox v Ministry of Justice [2016] UKSC 10, [2016] 2 WLR 806
Whether the relationship between D and T must be voluntary to constitute “akin to employment” – on appeal to SC.
Facts: Prisoner at a prison carrying out paid work negligently injured the catering manager.
Held: Prison held VL for relationship “akin to employment” but appeal to SC pending on ground that relationship between prisoner and prison is involuntary.
NB here prison couldn’t have selected the worker – perhaps a Dorset Yacht style argument can stand?
McKendrick, “Vicarious Liability and Independent Contractors: A Re-examination”
- Context
- Expansion of primary Liability
- Solution
I. Context
- Rise in flexible, “atypical” workforce (casual/part-time/self-employed/homeworkers for avoiding employment legislation and tax) means problem for VL
- Question: can law of VL be adapted to cover these workers?
II. Expansion of Primary Liability
- Occurred in haphazard and fragmented manner
o Extended scope of “exceptional” cases where ER is liable for tort of independent contractor (eg. negligence in choosing IC, authorized IC to commit tort; also non-delegable duty when employing IC to do “extra hazardous” work or work over highways) but no unifying principle so gives ct flexibility to “invent” non-delegable duties similar to VL (eg. McDermid)
o Cts reluctant to recognize new affirmative primary duties (eg. duty to control and supervise third parties of Dorset Yacht type)
- No attempt to identify coherent unifying principle
o Test seems to be “assumption of responsibility” but Rogers demonstrates that this can be used in a “flimsy and superficial manner”: D ran a minicab service where they hired out radios to drivers (own car, collected own fares) and rang them when they received calls. When one car injured V D were held to have assumed a duty to clients and NDD to take reasonable steps to provide a safe vehicle.
o Glanville Williams: NDD is a “logical fraud” where “cases are decided on no rational grounds, but depend merely on whether the judge is attracted by the language of NDD”
III. Solution
- Expand Primary Liability to cover VL: unlikely because expansion is based on premise that ER owes duty to V
- Expand VL so that T can be an EE for the purpose of VL but not for the purpose of taxation and employment legislation
o Will allow lawyers to abandon fruitless search for unifying principle for employment relationship and instead focus on case-specific solutions
Honeywell v Larkin
ERs can be VL for damage done by ICs where they carry out “extra-hazardous” activities.
Facts: T set fire to curtains in a cinema by negligently igniting magnesium powder for photographing the cinema’s interior, a common practice. T was IC of D, who were to conduct acoustic work.
Held: D liable for T’s tort because of an NDD
Judgments:
Slesser LJ:
- D in procuring the work to be performed by ICs assumed a NDD to the cinema company to “use reasonable precautions to see that no damage resulted” from the dangerous actions
- Thus D is liable for T’s act
Langton J:
- There are two exceptions for rule that ERs are not liable for IC’s tort:
o Special duty is imposed on ER by statute
o Chemicals or substances that are dangerous in themselves are to be used
Salsbury v Woodland [1970] 1 QB 324
Felling a large tree is not an extra-hazardous activity so as to make an employer liable.
Facts: D instructed ICs to remove a tree in his garden and C was injured when the tree brought down a wire. D (householder) appealed against finding of liability employing IC argument.
Held: Removing the tree was not an extra-hazardous activity so as to make D liable.
Judgments:
- Extra-hazardous activities that may make a householder liable are “activities which are dangerous even if carried out with caution by those skilled in the activity”
- There are certain categories of cases where an occupier will owe a primary duty to others to warrant the safety of his property and to have any work done on it done in a competent manner (even if he selected a competent IC)
Woodland v Essex County Council [2013] UKSC 66, [2014] AC 537
School owes NDD to ensure reasonable care be taken of children by both the school and third parties it employs.
Facts: C suffered brain damage during swimming lesson by teachers (T) employed by school (D) as independent contractors. Unable to rely on VL argued that D owed C a NDD to ensure reasonable care to be taken by school and third parties that it employs.
Held: YES – School owed C a NDC.
Judgments:
Lord Sumption on circumstances giving rise to NDD
- Ct should be sensitive about imposing unreasonable financial burdens on those providing critical public services
- However this case does give rise to a NDD:
o Law protects people vulnerable to those with high level of control over their lives (eg students to schools)
o Parents required by law to entrust child to school in reliance of school’s ability to look after them
o This is not open-ended liability – it is subject to limitations:
♣ Liable for IC’s negligence only for performance of functions that school assumes a duty to perform itself (not for extracurriculars or bus drivers, theatres, zoos etc. to whose care the school delegated the duty)
o Duty on schools > duty on parents (who wouldn’t be liable for swimming teacher’s negligence) because they are contractual in nature and teachers are paid fees, while the law is reluctant to measure a parent/child relationship in legal terms
Lady Hale
- Law should be developed by analogy (Caparo) but shouldn’t confuse the “man on the underground” (White) so should not differentiate if V is injured by an EE or IC
NB how is this a case of NDD when clearly school CAN delegate the duty to bus drivers, theatres etc? This is a case of VL.
Course of employment
- requirement
- close connection test
I. Requirement
- Sufficient connection with tort
a. Traditionally used “in the course of employment” (Salmond Test) but now this is sufficient but not necessary; now “close connection” test is used
b. This is the “tort-centred” analysis – employment for one purpose may not be employment for purpose of the tort
II. “Close Connection” test
- Test formulated in Lister but judges gave different interps:
o Steyn – tort “inextricably interwoven” with duties
o Hobhouse – D breached own duty to guard children from harm (this is on strict interpretation not VL)
o Millett – D liable for risks “reasonably incident” to employment - However Lister failed to consider which tort
o Hobhouse: D’s negligence
o Millett: W’s intentional tort of assault
♣ Important because of limitation period; now usually recognized as intentional tort - Lister criticized:
o Constitutionality of sweeping aside a test
o Necessity (could have used NDD)
o Certainty (test is vague) - Growing recognition of sexual abuse of children posed new challenge. Lord Phillips in Various Claimants responded:
o D is VL when he uses his relationship with T to further D’s own interests, and in doing so created/significantly enhanced risk that V would suffer the relevant abuse (thus “close connection” has a strong causal link)
Rose v Plenty [1976] 1 WLR 141
An ER may still be VL for a tort committed by an EE against specific instructions.
Facts: T, milkman employed by D company, took a child on his milk float to help with his rounds and paid him a small wage on multiple occasions. The company prohibited allowing children onto vehicles and had a large sign to this effect.
Held: D company was liable because EE was merely acting in an unauthorized way and was still going about his duties of delivering milk.
Judgments:
Lord Denning
- In this case the prohibition affects only the conduct within the sphere of the employment and didn’t take the conduct outside the sphere altogether
Lawton J (dissenting) - This case couldn’t be distinguished from Twine and Conway where ERs were not liable for EEs taking on passengers against specific instructions and injuring them
Lister v Hesley Hall Ltd [2002] 1 AC 215
Revised “course of employment” to “close connection” test but judges gave different interpretations: Steyn – “inextricably interwoven” with duties; Millett – risks “reasonably incident” to employment.
Facts: Cs were residents in a boarding house D (school). Warden, employed by D, abused children. Claim of D’s primary liability for failure to select wardens was rejected at first instance, as was VL as it didn’t come into Salmond test of “course of employment”. First instance said D could be VL for warden’s failure to report harms suffered but this is superficial and clear attempt at evading Salmond test. Rejected by CoA (held no VL).
Held: HL found VL by reformulating Salmond test into “close connection”
Judgments:
Lord Steyn:
- Where an EE acts for the benefit of ER or so intends, it is easy to accept that he is in “course of employment”
- However this is an overly restrictive view and we should embrace the view that VL is not necessarily defeated if the EE acted for his own benefit; rather, a focus on the connection between the nature of the employment and the EE’s tort becomes necessary
- Clearly warden’s acts of abuse were “inextricably interwoven” with his duties
Lord Hobhouse:
- Look at T’s duty to V and T’s duty to D
Lord Millett
- Liability for risks reasonably incident to employment
NB Lord Hobhouse’s interpretation is not VL but primary liability
Maga v Birmingham Roman Catholic Church
Case was similar to Lister but with a more tenuous claim as C didn’t belong to the church (D) where T worked. Nevertheless D held VL because they provided the opportunity for T to commit the tort and the tort was furthered by the church’s enterprise.
Facts: C sexually abused by a priest. He wasn’t a member of the priest’s church but had been befriended by the priest who employed him to do odd jobs.
Held: Abuse had occurred in the course of the priest’s employment and there was a sufficiently close connection between it and the church.
Judgments:
Lord Neuberger:
- The priest was in a position analogous to that of a parent and was never off duty as he was always dressed in clerical dress
- He had special responsibility for youth work at the church and thus was able to draw C into his “sexually abusive orbit by ostensibly respectable means connected with his employment”
- Abuse was a known risk of the priest’s employment
NB where does this leave the observation in Lister that merely providing the opportunity to cause damage does not lead to VL?
NOTE Hoyano (Tort Law Review)
- Close connection test in Lister
- Test in Jacobi as applied in Mega
- Conclusion
I. Close Connection Test in Lister
- Judges formulated the test differently
o Steyn and Hutton: sufficiently close to be “fair and just” to hold ER liable (implying policy consideration)
o Clyde: the wrongful act can broadly speaking be a way of carrying out the task authorized by ER (connection must be greater than providing an opportunity to carry out act)
o Hobhouse: Rejected Baxley and look instead at EE’s duty to ER and to V
o Millett: enterprise risk theory
II. Test in Jacobi as Applied in Maga
- Test: there must be a “material increase in the risk of harm occurring in the sense that employment significantly contributed to the occurence of the harm” (enterprise risk)
o Opportunity afforded by ER to abuse power
o Extent to which abuse furthered ER’s aims
o Extent abuse related to intimacy inherent in ER’s function
o Extent of power conferred on EE in relation to C
o Vulnerability of potential V’s to wrongful exercise of EE’s power
- This test is satisfied according to Lord Neuberger
III. Conclusion
- Enterprise risk test signals both when and why VL should be imposed for intentional torts and is preferable to “sufficient connection”
o Risk of wrongful exploitation of power typical of ER’s enterprise
o ER placed T in position of power through his job
o Opportunity for exploitation of power created by job itself
o Commission of tort was within scope of the risk
- Clarity of this reasoning should resolve ambiguities in Lister and be followed
Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11, [2016] 2 WLR 821
VL does not solely depend on relationship of employment and the fact that employment provided an opportunity to commit the tort. The connection between the tort and nature of duties is necessary.
Facts: Petrol station attendant (T) assaulted a customer (C).
Held: CoA held that T’s employers were not VL; appeal to SC pending
Judgments:
Treacy LJ:
- Authority after Lister shows that a close examination of close connection between tort and EE’s duty is necessary
- ER provided opportunity, setting, time and place for tort is not necessarily sufficient
- Existing authority refers to granting of authority, furtherance of an ER’s aims, and additional risk of the kind of harm occurring
NB how to reconcile this with Maga where seemingly the church only provided the opportunity for T to commit the tort?
Weddal v Barchester (Wallbank v Royal Bank)
VL may apply to EE’s improper reaction to receiving instructions but on the condition that nature of work makes it likely.
Facts: EE’s spontaneous act of violence injured another EE (C). In Weddal C called T from home to cover a shift and T had a bad day so assaulted C. In Wallbank C (manager) pointed out that T was performing his job inefficiently and C threw him across the table.
Held: Wallbank was VL (for his own injury) but not Weddall
Judgments:
Pill LJ on distinguishing factor from Lister:
- “Close connection” argued to be present because even an improper response to instruction received is closely connected with the employment
Pill LJ on Weddall
- Here T received a routine and proper request and his outrageous response brings him on an “independent venture” distinct from employment and the instruction was merely a “pretext” for the act of violence unconnected to the employment
Pill LJ on Wallbank
- There can be no distinction between violence towards a fellow EE and violence on a third party
- Argued that it couldn’t be said that confrontation was “inherent in the ER’s enterprise” (Bazley) or “inherent in the nature of the business (Millett in Lister)
- However, the “circumstances in which an ER may be VL for his EE’s intentional misconduct are not closed”
o Violence was closely related to employment in time and space
o VL for improper response to instruction is going too far but not when it is a small factory where instant instruction and quick response are required (frustration is predictable)
