Vicarious Liability Flashcards
What is vicarious liability?
Vicarious liability is the liability of one party for a tort committed by another party.
Is there a need to prove fault on the part of the defendant?
No need to prove fault on the part of the defendant.
The defendant who is vicariously liable incurs what is called ‘strict liability’ – liability without fault - what is strict liability?
Where a party is liable despite the absence of any fault.
Who does vicarious liability concern?
When a victim as a direct claim with the employee (defendant), they also have a claim against the employer vicariously.
5 rationales behind vicarious liability?
- deep pockets - employer is in a better financial position (insurance) than the employee to compensate a victim
- control/supervision - employer exercises both control and supervision over its employees.
- choice of employees - employer may be careless in selecting negligent employees and should suffer the consequences of that.
- benefit/burden - employer obtains the benefit of an employee, so it is only fair that it suffers any corresponding problem / burden caused by the employee
- raising standards - encourages employers to provide better training, supervision and control of employees
What three elements must be shown to satisfy vicarious elements?
- A tort has been committed by Party A
AND - Party A is an employee of Party B, or failing that, Party A is in a relationship akin to employment with Party B
AND - The tort was committed in the course of Party A’s employment / quasi- employment
Under 2. (A employee of B, or relationship ‘akin’ to employment) what are the two parts?
a) One of employment; or
b) Of the same nature as an employment relationship (‘akin’ to an employment relationship).
Historically, when is a tort in the course of employment? (3) Has this changed?
Until 2016: If the wrongful act was:
a) Expressly or impliedly authorised by the employer;
b) Incidental to the carrying out of the employee’s proper duties; or
c) An unauthorised way of doing something authorised by the employer.
CHANGED after 2016:
- will be held vicariously liable for the acts of their employee if there is a ‘closeness of connection’ between the employee’s wrongful act and his employment. The courts focus on the time the wrongful act was committed and all other relevant circumstances.
What is the current approach? What’s the ‘test’ and the case?
Close connection test: Lister v Hesley Hall Ltd [2002]:
- D company (ran local authority children’s home) held vicariously liable for sexual abuse committed by one of its employees.
- correct approach ‘is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort.’
4 cases where ‘close connection’ test applied (aside from Lister)?
Mattis v Pollock (t/a Flamingo’s Nightclub) [2004]: bouncer chased out of D nightclub (was employer) - went home got knife, stabbed C walking past on way back (involved in earlier incident). Nightclub held liable - broadly, at moment of stabbing nightclub’s responsibility not distinguished. (note: court influenced by fact Flamingo advocated violence…)
Mohamud v WM Morrison Supermarkets plc [2016]: assault by employee (Mr Khan) on customer (C). two fold test applied: see another slide. Was found that Mr Khan’s rude response to customer was closely connected with his duties - close connection.
Fletcher v Chancery Lane Supplies [2016]: C policeman cycling - collided with employee of D (pedestrian not looking properly crossing) - was wearing work clothes - found no close connection - impossible to know if related to work. Not vicariously liable.
Bellman v Northampton Recruitment Ltd [2018]: close connection test: MD of NR paid for axis after christmas part to go for further drinks. Drinks paid by NR. MD punched C after being questioned about salaries - brain damage.
Looked at two fold questions from Mohamud:
1. functions entrusted: MD of NR. Remit/authority wide.
2. close connection: yes - time and place of tort, acting in work - exercising authority.
Vicariously liable/
Pre 2002 case law: where it was concluded the act was in the course of employment? (4)
Century Insurance v Northern Ireland Road Transport Board [1942]: lorry driver caused an explosion by carelessly smoking a cigarette whilst filling his lorry with petrol.
Harvey v RG O’Dell [1958]: workman driving negligently injured a colleague who was his passenger. At the time, they were travelling five miles during working hours to get lunch.
Rose v Plenty [1976]: 13-year-old boy was injured whilst assisting a milkman on his rounds. The milkman had been expressly prohibited from enlisting help by his employer. Prohibited act done ‘for employer’s business’
Smith v Stages [1989]: two employees were injured in a car crash. Had been paid travel expenses, were paid for travelling time and were within working hours.
- Note: well established that employees are generally outside the scope of their employment whilst travelling to and from work unless on their employer’s business.
Pre 2002 case law: where it was NOT concluded the act was in the course of employment? (4)
Beard v London General Omnibus Co [1900]: which a bus conductor, with delusions of grandeur, attempted to drive a bus and in doing so managed to run over the claimant. The bus conductor was not authorised to drive the bus.
Daniels v Whetstone Entertainments Ltd [1962]: which an employee (a bouncer) assaulted the claimant twice – once, during the course of a fracas inside his employer’s premises, and a second time, outside the night club. Employer held liable for the first assault inside the club. Evaded liability for the second - seen as act of personal revenge - outside the course of employment.
Storey v Ashton (1869): driver returning from delivering wine as instructed by his employer was persuaded by his colleague to set off on a deviation from the route back to his employer’s premises. Much depends upon the extent of the deviation, whether travelling was in working time and the actual purpose of the journey. In Storey the deviation was not within the course of employment as it was a new and independent journey, entirely for their own purpose (to visit relatives).
Twine v Bean’s Express Ltd [1946]: despite express instructions not to do so, the lorry driver (an employee) picked up a hitch hiker, who was subsequently injured as a result of the driver’s negligent driving - distinguished from Rose as not done for purpose of business.
In Mohamud v WM Morrison Supermarkets plc [2016]: the ‘closeness of connection’ test was found to be twofold: what is the nature of this?
(a) What functions or ‘fields of activities’ have been entrusted by the employer to the employee (what was the nature of his job)?
(b) Was there sufficient connection between the position in which he was employed and his wrongful conduct to make it just for the employer to be held liable?
In vicarious liability situations there are often joint tortfeasors, ie two parties, such as employer and employee, who are jointly liable, but the ONLY party sued is the one in the best financial position (i.e. employer): does the employee not have to pay anything?
Not correct - an employer may be entitled to seek an indemnity from his employee should he be forced to pay damages in respect of the employee’s tort. This is under s 1(1) Civil Liability (Contribution) Act 1978.
