Vicarious liability (cases) Flashcards
Mersey Docks & Harbour Board v. Coggins & Griffith (1947) (HL)
permanent employer generally lb, much more likely to be lb than temporary employer who ‘borrowed’ the employee => bcs permanent employer considered prima facie lb and has v heavy burden of proof to discharge if wants to show that someone else is
Rose v. Plenty (1976) (HC)
An employer can be vicariously liable for acts of an employee that it prohibited if it was done for the employer’s purpose
= case where milkman gave lift to local boy (who helped him w/ delivery), boy injured by his careless driving, employer expressly prohibited giving lifts
Smith v Stages (1989) (HL)
Travelling between workplaces can be within the course of employment if the employee is required and paid to do so
Lister v Hesley Hall (2002) (HL)
Laid down close connection test: for a tort to be within the scope of employment, there must be a sufficiently close connection between the tort and employment such that it is fair and just to impose vicarious liability on the employer
Facts : D employed T as warden to run a boarding house, T sexually abused claimants
Mattis v. Pollock (2003) (CA)
T = doorman employed by D nightclub, got into a fight w/ ppl to whom he refused entry and later stabbed one of them – D found vicariously liable despite the fact that T attacked the claimants partly for personal revenge
- confirmed need for close connection btw T’s act and what he is expected to do during employment
- Where an employee is expected to use violence whilst carrying out his duties, the likelihood of establishing that an act of violence fell within the scope of his employment is greater
Viasystems Ltd v Thermal Transfers Ltd (2005) (CA) (summary)
Main point = dual vicarious liability is permissible
C engaged contractor D1 to install air conditioning, D1 subcontracted pt to D2, who made employees provided by D3 do the work - work was done negligently, resulting in flood damage
=> D2 and D3 were jointly vicariously liable:
- vic lb doesn’t require personal fault
- ‘transference of employment’ misleading : focus on relevant act and whose resp it was to prevent it
Viasystems Ltd v Thermal Transfers Ltd (2005) (CA) - tests for vic lb - May LJ
“who was entitled and in theory obliged to give orders as to how the work should or should not be done?”
Viasystems Ltd v Thermal Transfers Ltd (2005) (CA) - tests for vic lb - Rix LJ
“what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much part of the work, business or organization of both employers that it is just to make both employers answer for his negligence”
Various Claimants v Catholic Child Welfare society (2012) (SC) (also ref to as ‘Christian Brothers’)
Main point = **replaced test of ‘control’ w/ 2 stage test : ‘relationship sufficiently akin to employment’ & close connection btw tortious act and relº **
Situation = sexual harrassment case
=> issue whether catholic institute (didn’t own School but members acted as headmaster and teachers, although no contract of emp) could be vic lb for their acts
Cox v Ministry of Justice (2016)
relº akin to employment even though relationship btw prison and prisoner not voluntary
=> Correct approach = “carefully to apply the features of the traditional relationship giving rise to vicarious liability, and to ask whether the features of the present case fell within them so that it was fair and just to impose liability on the defendant”
=> situation : C = catering manager for prison, wk w/ prisoners on ‘prison service pay’, one of them was negligent and injured her
Mohammud v Morrison Supermarkets (2016) (SC)
stretched the boundaries of the ‘close connection’ test
T employed by D in D’s petrol station – D shouted racist insults + threatened and assaulted C (who had come in to ask if he could print some documents) to make him leave
=> D found vic lb despite T’s behaviour being a ‘gross abuse of position’ + racially motivated, act was still ‘in connection’ w/ job D entrusted to him suggestion that T’s motive = irrelevant
Mohammud v Morrison Supermarkets (2016) - Lord Dyson on imprecision of the close connection test
“the test is imprecise, but that is inevitable given the infinite range of circumstances where the issue of vicarious liability arises. The court […] has to make an evaluative judgment in each case, having regard to all the circumstances and to the assistance provided by previous court decisions on the facts of other cases”
=> “To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera. Many aspects of the law of torts are inherently imprecise.”
Various Claimants v Barclays Bank Plc (2020)
Main point : bringing vic lb back in its box a bit (1st of 2 decisions reining in vic lb)
=> where the tortfeasor is in business on his own account, he is an independent contractor, the 5 incident test in Christian Brothers does not apply and there is no relationship akin to employment
Situation : Barclays hired doctor (from independent practice) to conduct health examinations for new employees, doctor sexually abused some of them
=> SC held that B could not be vic lb for acts of independence contractor (no relationship akin to employment)
Various claimants v Morrison Supermarkets (2020)
2nd of 2 decisions reining in vic lb : employee’s motive is relevant, timing and causation + fact that employment ‘provided opportunity’ for tort not sufficient for vic lb
=> Approving Lord Toulson in Dubai Aluminium : distinction btw cases where T misguidedly engaged in furthering D’s business and where T is acting for his own purposes on ‘a frolic of his own’
Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB
C = member of Jehovah’s Witness congregation, raped by an elder of the congregation (with whom she and her family were close friends) – rapist convicted but C alsp brought vic lb claim against D = trustees of Jehovah’s Witness congregation
SC held that D was not vicariously liable: the relationship was akin to employment but wrongful conduct not closely connected enough to be considered as having been done in the course of his quasi-employment
=> again, SC keeping vic lb in check : stressed importance of ‘verifying outcome’ arrived at by application of 2 stage test against policy reasons for imposing vic lb
