Vicarious Liability and Non-Delegable Duties Flashcards
When does vicarious liability apply? – Cox v Ministry of Justice
Prisoner’s work for prison was held “akin to employment.” Test (Lord Reed):
1) Activity benefits D’s business
2) Activity is integral (not peripheral)
3) D created the risk
4) D exercises control
Independent Contractors – Barclays Bank v Various Claimants
No VL for abuse by an independent contractor (Doctor Bates). Bank only arranged exams – no employment-like relationship.
Key test – Lister v Hesley Hall Ltd
Established the “close connection” test between employment and tortious act – foundational to VL for intentional torts.
Violent conduct & VL – Mohamud v WM Morrison Supermarkets
Employee assaulted customer. VL found as conduct was “closely connected” to job.
Test (Lord Toulson):
1) What field of activities was employee assigned?
2) Was tort closely connected to that field?
Criticised for loosening VL too far.
Limiting Mohamud – WM Morrison Supermarkets plc v Various Claimants
Employee leaked data out of revenge. No VL – motive mattered.
Court held: Mere opportunity via employment isn’t enough.
Clarification of Close Connection – Trustees of Barry Congregation v BXB
C raped by church elder at his home.
Step 1: Akin to employment – ✅
Step 2: Close connection – ❌
Act wasn’t part of his role; setting (home) and purpose (personal) mattered.
Comparative View – P. Giliker (2024)
UK uses “akin to employment” & close connection
Australia doesn’t recognise “akin to employment”
UK now more restrictive post-Mohamud; Australia takes a more principled, policy-based view
What is a non-delegable duty?
A personal duty owed by D that can’t be discharged by outsourcing. Often applies where C is vulnerable and under D’s control.
Woodland v Swimming Teachers Association – Facts
Pupil suffered brain damage during outsourced swimming lesson. School still owed a non-delegable duty.
Woodland – The 5-Part Test (Lord Sumption) for NDD:
1) C is vulnerable/dependent
2) Pre-existing relationship involving D’s control
3) C lacks control over how function is performed
4) D has a positive duty to protect C
5) Third party was negligent
Application of Woodland
School was responsible, even though contractor ran the lesson. Non-delegable duty arose because of vulnerability and pre-existing duty.
Armes v Nottinghamshire CC – Facts
C abused in foster care. Local authority placed her there but didn’t control day-to-day life.
Armes – No Non-Delegable Duty
Foster carers were independent, not agents of the authority.
No duty arose as authority didn’t delegate its own statutory function.
Though non-delegable duty failed, vicarious liability was still found based on the “akin to employment” framework.
Key Distinction: Woodland v Armes
Woodland: duty owed within controlled institutional setting (school)
Armes: carers acted independently, authority had no day-to-day control
