Vicarious Liability

Question 1

What is Vicarious Liability?

Answer 1

Vicarious liability is not a tort in its own right. It is a form of secondary liability under which one party can be held liable for the acts of another.

Where a vicarious relationship exists, D is responsible for the torts committed by the other person and is strictly liable to compensate the claimant.

Question 2

3 elements of Vicarious Liability

Answer 2

1. Relationship giving rise to VL
2. In the course of the relationship
3. A tort has been committed.

Question 3

General justifications for the doctrine of VL (3)

Answer 3

1. Qui facet per alium facit perse

• He who does anything by another does it by himself”
• Since an employer acts through their employees to achieve company objectives; and is therefore ‘liable’ for the ‘production’ of the employee, it follows that they should also be ‘liable; for ‘destruction’ of said employee.

​​2. A more solvent defendant

• Employers have more money and are better able to make a compensation payment, therefore if they are held responsible the claimant is more likely to achieve a remedy. - Professor Glanville Williams (1957)

3. Insurance

• In Various Claimants v Catholic Child Welfare Society, Lord Phillipd emphasied that employers are usually insured against risk (whereas employees are usually not). The Employers’ Liability (compulsory Insurance) Act 1969 obliges employers to have insurance for their employees.

Question 4

Give 3 examples of relatioships which give rise to VL

Answer 4

• Employer and employee
• Principal and agent
• members of a partnership

Question 5

Where a tort has been commited in the course of vicarious relationship who can the cliamant sue?

Answer 5

The claimant can choose who to sue: the primary tortfeasor or the tortfeasor’s employer.

Question 6

The control test

Answer 6

This is (was) the traditional test for the existence of an employment (or other vicarious) relationship.

If the employer has control over the employee then a vicarious relationship exists.

However the control test is problematic, especially in teh contetx of professional job. For example in Cassidy [1951] it was held that although the Hospital authority that employs doctors cannot be said to have ‘control’ over their actions as they are independent professionals, there still exists a relationship giving rise to Vicarious Liability.

Question 7

Cassidy v Minister of Health [1951] CA

Answer 7

Hospital Authority were vicariously liable for the negligence of the Doctors they employed despite the absence of a meaningful ‘relationship of control’ between the Authority and the professional Doctors.

Question 8

Ready Mixed Concrete Ltd v Minister of Pensions [1968] QBD

Answer 8

Held: A person who owns the asset and bears the risks is unlikely to be considered a ‘servant’ (employee) - therefore the truck driver was not in a vicarious relationship with the company and was instead an independent contractor. No VL.

Question 9

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] CA

Answer 9

Held: Two separate employers were both vicariously liable for the negligence of a single employee.

Reasoning:

(1) Correctly formulated, the question to determine vicarious liability was who was entitled to exercise control over the relevant act or operation of the fitter’s mate.The inquiry should concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it: who was entitled and obliged to give orders as to how the work should or should not be done. Entire and absolute control was not a necessary precondition of vicarious liability,
(2) On the facts of the instant case both D2’s fitter and D3’s fitter had been entitled, and if they had had the opportunity obliged, to prevent the mate’s negligence.
(3) It had been assumed since the early 19th century to be the law that where an employee who was lent by one employer to work for another was negligent, liability had to rest on one employer or the other, but not both. But the foundation on which that rested was a slender one and the contrary had never been properly argued. There was no authority binding the court to hold that dual vicarious liability was legally impossible.

(4) Dual vicarious liability was legally possible and both D2 and D3 were vicariously liable for the mate’s negligence.

(5) If the relevant relationships led to the conclusion of dual control over the employee, it was likely that the measure of control was equal. That was so in the instant case and, applying the Civil Liability (Contribution) Act 1978 , the just and equitable division of responsibility between D2 and D3 was equal. D2 and D3 should contribute 50 per cent of their several liabilities to C.

Question 10

Various Claimants (Christian brothers) v Catholic Child Welfare Society [2012] UKSC 56

Answer 10

Held: Vicarious liability attached to the Institute of the Brothers of the Christian Schools, a religious order, in respect of sexual abuse perpetrated or allegedly perpetrated by brother teachers at a residential school for boys, even though the Institute had not managed the school.

Reasoning:

Two stage test:

(1) Was there a relationship capable of giving rise to VL?

• Did not have to be relationship of employment, need only be ‘akin’ to a relationship of employment.
• Lord Phillips felt that “the relationship between the brothers and the Institute [was] closer than that of an employer and its employees” and possedd all the seential features of an employment relationship, notwitshtadning the absence of a formal contract.

(2) Was there a sufficient connection between the abuse and the relationship between the brothers and the Institute?

• Stage 2 of the test is usually satisfied when a wrongdoer does something he has been required or requested to do pursuant to his relationship with the defendant in a manner that is negligent. But sexual abuse can never be a negligent way of performing such a requirement.
• The necessary close connection between the relationship between the defendant and the wrongdoer is established where a defendant, whose relationship with the abuser put it in the position to use the abuser to carry on its business, did so in a way which created or significantly enhanced the risk of abuse.
• Moving beyond the concept of “ordinary course of employment” to establish the necessary close connection, Lord Phillip’s suggestion at para 92 that “abusing the boys in their care was diametrically opposed to [the Institute’s stated] objectives but, paradoxically, that very fact was one of the factors that provided the necessary close connection between the abuse and the relationship between the brothers and the Institute that gives rise to vicarious liability”. This seems consistent with Lord Hobhouse in Lister, who relied on the idea of the voluntary assumption of the relationship and the duties that arise from that to establish vicarious liability.

Question 11

Lord Phillips’ 5 policy reasons for imposing VL

Obiter dicta in Catholic Child Welfare Society [2012]

Answer 11

1. Solvency: the employer is more likely to have the means to compensate the victim;
2. Resonsibility: the tort will have been committed as a result of activity by the employee on behalf of the employer;
3. Business: the employee’s activity is likely to be part of the employer’s business activity;
4. Creation of risk: the employer has created the risk of the tort; and
5. Relationship of Control: the employee will, to a greater or lesser degree, have been under the control of the employer.

Question 12

Cox v Ministry of Justice [2016] UKSC 10

Answer 12

Held: Prison service was vicariously liable for injuries to a caterer working at the prsion caused by a prisoner serving in the prison canteen.

VL 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”. The defendant “must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort”.

Analysis:

• Lord Reed determined that “business activity” did not require the defendant to be a business or enterprise in an ordinary sense, nor that the activities required of the tortfeasor by the defendant be commercially motivated.
• Also contradicted Lord Phillips by suggesting that the solvency of the defendant is not a justification for imposing VL: “the mere possession of wealth is not in itself any ground for imposing liability.” [20]. This however, seems to ignore para 34 of Catholic Child Welfare where Lord Phillips states: “The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim”.

Question 13

Employers Liability (Defective Equipment) Act 1969, s 1

Answer 13

Employers are liable in negligence for injury to their employees caused by defective equipment provided by a TP.

(1) Where after the commencement of this Act—

(a) an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer’s business; and

(b) the defect is attributable wholly or partly to the fault of a third party (whether identified or not),

the injury shall be deemed to be also attributable to negligence on the part of the employer (whether or not he is liable in respect of the injury apart from this subsection), but without prejudice to the law relating to contributory negligence and to any remedy by way of contribution or in contract or otherwise which is available to the employer in respect of the injury.

Question 14

Armes v Nottinghamshire County Council [2017] UKSC 60

Answer 14

Held: LA were vicariously libale for abuse of a child by foster parents who were deemed to be in a ‘relationship akin to employment’ with the LA.

Reasoning

• LA had means to compensate
• Tort was committed due to activity undertaken on behalf of the LA
• Fostering is an integral part of the LA’s activities
• LA had created the risk by placing child into foster care
• High degree of control is not necessary for VL.

Question 15

When will liability for the torts of independent contractors arise? (2)

Answer 15

1. The entity owes a non-delegable duty to the victim (Woodland [2013])
2. The entity authorised the independent contractor to commit a tort.

Question 16

Woodland v Essex County Council [2013] UKSC 66

Answer 16

Held: The local education authority had owed a non-delegable duty of care to ensure that reasonable care was taken to secure the safety of a pupil who was attending a swimming lesson conducted through an independent contractor. If it is found that the third parties (the swimming instructors) were negligent then the respondent (school) will be in breach of duty.

• The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence

Lord Sumption held that non-delgable duties arise when:

a) C is especially vulnerable or dependent on the protection of D from the risk of injury

b) there is a pre-existing relatinoship beween C and D which both: (i) placed C in actual custody, charge or care of D, and (ii) from which it was possible to impute to D the assumption of a positive duty to protect C from harm

c) C had no control over how D chose to persom its relevant obligations

d) D had delegated to a third party some function which was an integral part of D’s positive duty to C

e) TP (primary tortfeasor) had been negligent in the performance of the very function assumed by D and delegated by D to him or her.

Question 17

What is the traditional approach to establishing whther a tort is ‘commited in the course of employment’ and hence one for which the (quasi) employer can be vicariously liable?

Answer 17

Salmond test:

An employee acts in the course of his/her employment if hsi/her conduct was:

1. authorised by the employer: or
2. considered to be an authorised means of performing the job for which he/she is employed.

The salmond test works well in negligence case, but difficulties arise where teh tort involved is an intentional tort e.g. trespass or crime)

Question 18

What is the modern approach to establishing whther a tort is ‘commited in the course of employment’ and hence one for which the (quasi) employer can be vicariously liable?

Answer 18

Whether the tortious act is sufficiently “closely connected” to the tortfeasor’s job/quasi-employment.

• Lister [2002]

Question 19

Rose v Plenty [1976] CA

Answer 19

Held: An employer, which had expressly prohibited it’s milkman from hiring children to help with the milkround, was vicariously liable for damage caused to a child the milkman had employed, as a consequence of the milkman’s negligence.

In other words: An employee who contrary to an express prohibition imposed by his employer engages another to assist him in the performance of his duties may despite the prohibition render his employer vicariously liable for injuries caused to that other by the employee’s negligence.

Reasoning

• Milkman had furthered his employer’s business interests by making the round more efficient.
• Lord Denning (majority): Notices such as orders to refrain form an activity do not exempt the employer from vicarious liability if the activity was carried out for the master’s purposes rather than for the servant’s. Denning says that if an act is done for “the employer’s business”, regardless of prohibitions, then it is “usually done in the course of business”. Here, the conduct was within the course of employment (the purpose was delivery of milk) and so X was vicariously liable.
• Lawton LJ (dissenting): D was NOT acting in X’s interests: It was D who was paid to do the work and it was not in X’s interest that he should subcontract the work to the boy. Thus he was outside the scope of his employment. Also it was not in X’s interest that D should act against X’s express wishes and cause P injury.

Question 20

Lister v Hesley Hall Ltd [2002] HL

Answer 20

Held: School board was vicariously liable for sexual abuse perpetrated by members of staff.

Reasoning

• The Court rejected the restrictive view that vicarious liability could only arise when the employee is acting for his employer’s benefit. The proper test was one of close connection.

Analysis

• Lord Phillips in Catholic Child Welfare [2012]: It is not easy to deduce from Lister the precise criteria that will give rise to vicarious liability for sexual abuse. The test of “close connection” approved by all tells one nothing about the nature of the connection. Lord Clyde and Lord Hobhouse found it significant that the tortfeasor’s employment involved exercising care for the victim. Only Lord Millett expressly endorsed the importance that the Canadian decisions attached to the creation of risk. This has, however, been identified as of significance in most of the cases that have followed.

Question 21

Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11

Answer 21

Held: the employer of a petrol kiosk attendant who had subjected a customer to an unprovoked assault was liable for his actions.

• ‘Close connection’ test from Lister [2002] affirmed as the proper and appropriate test

Reasoning

• Applying that test here, it was Mr Khan’s job to attend to customers and respond to their inquiries. His conduct in responding to the Claimant’s request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events. The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed the Claimant onto the forecourt. There are two reasons to draw this conclusion. First, it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter - he was following up on what he said to the Claimant. Secondly, when Mr Khan followed the Claimant to his car and told him not to come back to the petrol station, that was not something personal between them, but an order to keep away from his employer’s premises. In giving the order he was purporting to act about his employer’s business [47]. Mr Khan’s motive in the attack is irrelevant.
• It does not matter whether he was motivated by personal racism rather than a desire to benefit his employer’s business [48].

Question 22

WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12

Answer 22

Held: Supermarket was not vicariously liable for data breaches caused by a rogue employee with a gurdge against them

Reasoning

Just because an indvidual’s employment provides the potential opportunity to carry out a wrongful act, this does not automatically impose VL for such an act.

• Lord Reed held that key question was whether there was a sufficiently close connection between the tort and ‘act he was authorsied to do’ that the tort was fairly and properly be regarded as done by him while acting in the ordinary course of his employment.
• 1. First, the disclosure of data on to the Internet did not form part of Mr Skelton’s functions or “field of activities” in the sense in which the words were used by Lord Toulson in Mohamud at [44]: “it was not an act which he was authorised to do.” [31]

2. Second, it was not sufficient for the imposition of vicarious liability that the employment gave the employee the “mere opportunity” to commit a wrongful act, or that the employee was “doing acts of the same kind as those which it was within his authority to do.” [35]
3. Third, whilst there was a “close temporal link” and an “unbroken chain of causation” between the provision of data to Mr Skelton in the course of his employment and its subsequent disclosure, “a temporal or casual connection does not in itself satisfy the close connection test.” [31]
4. Fourth, motive was not irrelevant: on the contrary, “whether he was acting on his employer’s business or for purely personal reasons was highly material.”[31] Mr Skelton was “not acting on his employer’s business, but in pursuit of his own private ends” [44] and “seeking vengeance for the disciplinary proceedings some months earlier” [47]

Analysis

• In Mohamud and Catholic Child Welfare the commision of tort had been directly connected with the job the employee was meatn to be doing. In Mohamud, his job was to respond and interact to customer querries, and it was within that capacity that Mr Khan had assaulted a customer. Similar in Catholic Child Welfare it was the job of teh ‘brothers’ to teach and look after the children, and it was withint their capcity as teacher that they had abused the children. However in this instance, although Mr Skelton’s had given him the opportunity to conduct a data breach, his job was not that to protect data, but was as a member of the internal audit team.
  *

Question 23

Barclays Bank Plc v Various Claimants [2018] CA

Answer 23

Held: Barclays required job applicants to attend a medical examination. It was not vicariously liable for sexual assaulys commutted by a doctor (engaged as a contractor) during those examination. The doctor was not anything close to an employee.

Question 24

Biffa Waste Services Ltd v Maschinenfabrik Abrik Ernst Hese GmbH [2008] CA

Answer 24

Held: Biffa could not beheld vicariously liable for teh acts of independent contractors.

Reasoning

• Supervision is not equivalent to control - the contractors were supervised but not controlled.
• Exceptional facts were required for a contractor to be vicariously liable for the negligence of his subcontractor; that only where the agreement between them was to be taken as conferring on the contractor the power to control the manner of execution of the work could vicarious liability be transferred from subcontractor to contractor