Vicarious liability in the context of employment Flashcards
How can we define VL?
“Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment.”
Where can this definition be found?
Lord Steyn, Lister v Hesley Hall Ltd [2001]
What type of liability is VL?
Strict liability, it does not matter if the employer has been negligent, the fact their employee committed a tort can render them liable.
Why do we have vicarious liability?
“Liability in tort normally depends upon the breach of a duty owed by the defendant to the claimant. The only true exception to that principle under the common law is vicarious liability, where for reasons of policy the defendant is held liable for the breach of duty owed to the claimant by a third party.”
In what case was the above stated?
Lord Reed, Armes v Nottingham County Council [2017].
Outline the significance of policy in vicarious liability, should policy be considered alone?
“It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability. Where the criteria are satisfied the policy reasons for imposing the liability should apply… [T]he policy reasons are not the same as the criteria. One cannot, however, consider the one without the other and the two sometimes overlap.
The scope of vicarious liability is understood through which case?
Lord Reed, Cox v. Ministry of Justice [2016]
What does Lord Reed state in Cox v. Ministry of Justice [2016] regarding the scope of VL?
“The scope of vicarious liability depends upon the answers to two questions. First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant.”
To establish vicarious liability against an employer, the claimant must show three things, what is the first?
First prove that X has committed a tort.
Once this is shown, the Supreme Court in which leading case indicated two further elements?
Various Claimants v Catholic Child Welfare Society (CCWS)
What two further elements were indicated in this case?
- A relationship between X and Y capable of giving rise to vicarious liability;
and
- A close connection that links the relationship between X and Y and the act or omission of X.
(1) The employee committed a tort
(1) The employee committed a tort
Outline what is understood within the first element -
- This may be considered obvious but is worth noting.
- If the claimant is unable to prove that a tort has been committed against him or her, vicarious liability cannot arise.
- If, therefore, suing an employer for vicarious liability on behalf of its employees, the claimant must first prove that the employee’s conduct satisfies all the requirements of the tort in question.
(2) The relationship between the tortfeasor and the employer.
(2) The relationship between the tortfeasor and the employer.
The primary relationship giving rise to vicarious liability remains what?
Employer/ Employee
What have the courts drawn a large distinction between in regard to the relationship between the tortdeasor and the employer?
The courts draw a distinction between, on the one hand,
- A contract of service or employment, where the person employed is an “employee”,
and, on the other hand,
- A contract for services, where the person employed is an “independent contractor”.
Thus, what is the general rule?
General rule: employers are liable for torts committed by employees (in the course of their employment) but not independent contractors.
This is often articulated as the distinction between a contract of services (employee) and a contract for services (independent contractor).
There is now a third category, what is this category?
Category of ‘relationships akin to employment’ developed by the Supreme Court in recent decades.
The key distinction then is between who? Provide an example.
The key distinction, then, is between employees and independent contractors.
If I employ a cleaner for two hours twice a week to clean my house, for example, I have not employed him/her under a contract of service but rather I have entered a contract for services with an independent contractor and I would not be vicariously liable for their torts.
Is this distinction alwasy easy to draw? What are the difficulties in this distinction?
- Unfortunately, this distinction is not always so easy to draw.
- In recent times, the nature of employment has changed, with workers far more insecure than they have been in the past.
- Workers may be employed on a casual basis, or via an employment agency, or on a government scheme, and it is difficult to ascertain their exact status.
- This difficulty is compounded by the various arrangements undertaken by workers to limit their tax liability, frequently by labelling themselves as independent contractors for this purpose.
The courts, therefore, face a real challenge in distinguishing between contracts of employment and contracts for services and this is one of the reasons which led the courts to develop a third category of what?
“Quasi-employees” hired in circumstances akin to employment.
The category of ‘relationships akin to employment’ has been developed by the Supreme Court in recent decades.
However, what did Baroness Hale state in regard to the three potential relationships?
However,
“There is nothing, therefore, in [such cases] to suggest that the classic definition between employment and relationships akin to employment on the one hand, and the relationship with an independent contractor, on the other, has been eroded.”
In what case did Baroness Hale say this and what does it suggest?
Baroness Hale, Various Claimants v. Barclays Bank [2020],
A relationship akin to employment (This has been treated as a middle ground between the above and below, Baroness Hale said they should not be thought of in this manner, these are three separate and distinct categories).
(2.1) Identifying employees
(2.1) Identifying employees
In regard to VL, what is the first thing we must do?
First thing we have to do, distinguish between employees and the self-employed.
How does Lord Cooke in Market Investigations Ltd suggest we can distinguish employment from the self employed?
“A agrees that, in consideration of some form of renumeration, he will provide his own work and skill in the performance of some service for B.”
Lord Cooke, Market Investigations Ltd v Minister of Social Security [1968]
In regard to employment, what are we generally looking for?
We are usually looking for labour in exchange for remuneration on an ongoing basis, this will be employment.
What are the three ‘factors potentially identifying “employees”’?
- The terms/ wording of the contract
- Control
- The relationship as a whole
What have the courts stated in regard to the terms/ wording of the contract?
The courts have clearly stated that they will not be governed by the wording of the contract but will examine the substance of the contract.
Which authority supports this?
Ferguson v Dawson [1976]
What occured in Ferguson v Dawson [1976] and what was held?
- In Ferguson v Dawson, it had been agreed between the parties that workers employed on a building site would be “self-employed labour only sub-contractors”.
- By this means, the workers avoided the deduction of income tax and national insurance contributions from their weekly payments.
- The plaintiff, who worked on the defendants’ building site, argued when injured that he was an employee and therefore able to sue for breach of statutory duty.
- The court held that in reality the relationship was indeed one of employer and employee.
In Ferguson v Dawson [1976], the court held that in reality the relationship was indeed one of employer and employee, why?
- The defendants could dismiss the workmen,
- Move them between sites,
- Tell them what work to do,
- Provided them with tools.
These factors indicated that they were employees and not independent contractors.
Essentially, what principle do we derive from Ferguson v Dawson [1976]
Wording of the contract may be relevant but not decisive.
What have the courts stated in regard to control, is the element of control as significant today as it once was?
In the past, the control test was the primary indicator used by the courts.
An employer/ employee relationship was held to exist when an employer could tell an employee what work to undertake and how it should be done.
While this test is still used, it is clearly outdated in relation to modern work practices.
What did Justice Cooke say regarding control in Market Investigations Ltd v Minister of Social Security [1968]?
“The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor.”
Which case provides us with a more modern and clarified understanding regarding the distinction between employment and self employment?
Market Investigations Ltd v Minister of Social Security [1968].
What did Lord Reed state in Cox v Ministry of Justice regardign control?
“It is a factor which is unlikely to be of independent significance in most cases.”
In summary, what do we learn regardign control?
Control used to be indicative, but it does not reflect modern employment.
Unlikely to hold much significance on its own.
What does Lord Cooke state in Market Investigations Ltd v Minister of Social Security [1968] which provides a more modern approach to the identification of employees?
“No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases.
- The most that can be said is that control will no doubt always have to be considered although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services
- provides his own equipment,
- whether he hires his own helpers,
- what degree of financial risk he takes, and
- whether and how far he has an opportunity of profiting from sound management in the performance of his task.”
What insight does this case provide?
- This is the case which provides the most clarity on this distinction.
- This is not an exhaustive list of factors; it is really context specific.
- Control is relevant and may be looked for but is not the sole determining factor.
- This case sets out what to consider in this distinction.
This is the best authority. - When looking at relationships akin to employment, minus the renumeration, there are similar factors as in this case which are relevant.
The relationship as a whole.
The relationship as a whole.
Considering the relationship as a whole is the most modern appreach, does it still encompass the above?
Yes, essentially, in order to determine an employee, we should consider control, the terms of the contract and more holistically, the relationship as a whole.
The cases reveal a number of factors which the courts will consider in deciding whether an employer/employee relationship exists, what are the facts determined in the textbook?
▪The payment of wages and National Insurance contributions etc, on a regular basis;
▪An indefinite term of employment;
▪A fixed place and time of performance;
▪The provision of equipment or materials by the employer;
▪The degree of financial risk and investment taken by the worker;
▪Whether the worker can profit from his or her performance;
▪Whether the worker must hire his or her own assistants or replacements; and
▪Whether the work is integrated into the business or accessory to it (the business integration test).
If there is a payment of wages and National Insurance contributions etc, on a regular basis, what would this indicate.
A relationship of employment.
Employer to employee.
What would an indefinite term of employment indicate?
Self employment.
What would a fixed place and time of performance indicate?
A relationship of employment.
Employer to employee.
What would the provision of equipment or materials by the employer indicate.
A relationship of employment.
Employer to employee.
What would a large degree of financial risk and investment taken by the worker indicate?
Self employment.
What would a worker hiring his or her own assistants or replacements indicate?
Self employment.
If the work is integrated into the business, what would this indicate?
A relationship of employment.
Employer to employee.
If they are a mere accessory, self employment.
On this basis, in Market Investigations v Minister of Social Security, part-time interviewers working under short-term contracts for a market research company were held to be what?
Employees.
Why were they held to be employees, what did Cooke J how?
Their employers exercised extensive control over their work.
Cooke J held that the limited discretion given to employees to decide when they would work, and the ability to work for others during the relevant period, were not inconsistent with the existence of a series of contracts of employment.
Which case conflicts Market investigations in that the ‘workers’ were deemed to be self employed?
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance.
In this case, McKenna J held that arrangements to deliver ready-mixed concrete by “owner-drivers”, paid at fixed mileage rates, were not contracts of employment, what were the factors against a contract of employment?
Against a contract of employment was the fact that
- the drivers had to buy their own vehicles,
- which were maintained at their own expense,
- the drivers were described in the contracts as independent contractors.
What were the factors for a contract of employment?
Yet in favour of a contract of employment was
- the high level of control exercised by the company
- vehicles were bought on hire purchase from a company associated with the defendants and had to be painted in the company’s colours.
- the drivers were obliged to wear the company uniform and comply with the company’s rules, including a prohibition on using the vehicles for any other business.
Overall however, what was held?
Nevertheless, McKenna J felt that ownership of the vehicles, and the fact that the drivers took the chance of profit and bore the risk of loss, indicated that the drivers were in reality independent contractors.
What does Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance demonstrate?
This difficult case illustrates the problem often facing the court where there are indications both ways.
So, we have outlined elements utilised in order to distinguish an employee from someone who is self employed, what is the third potential relationship.
A relationship akin to employment.
In the leading Supreme Court decision of Various Claimants v Catholic Child Welfare Society,145 Lord Phillips confirmed that while the vast majority of cases would relate to employer/employee relationships under a contract of employment, English law now recognised that there were relationships “akin” to employment, what is understood by this relationship?
The key idea we are looking at is if a relationship aside from renumeration is none the less sufficiently akin to the relationship of employment to allow for VL.
The area regarding relationships akin to employment have evolved rapidly through a series of Supreme Court cases, what are these cases?
CCWS,
Cox,
Armes,
Barclays Bank.
How do we determine if a relationship is one in which we could deem a ‘relationship akin to employment’?
Whether a relationship is sufficiently akin to a relationship of employment will
depend upon a close analysis of the elements of the relationship and relevant policy considerations.
Which is the first case we consider in regard to a relationship akin to employment?
The Christian Brothers case.
What did the Christian Brothers case concern?
Case concerned abuse carried out by members of a religious order at a school.
School was vicariously liable.
What was the question of conern in this case?
Question arose whether the ‘brothers’ who carried out the abuse were sufficiently akin to employees of second
defendant (‘the Institute’) to justify rendering that
defendant vicariously liable for their conduct in addition to the school.
The brothers were not paid, they devoted any earnings to the religion and there was no contract, but was this deemed a relationship akin to employment?
Yes.
Why was this deemed a relationship akin to employment? What elements within the circumstances were considered to amount to a relationship akin to employment?
Lord Phillips considered the following ‘essential elements’:
i) presence of hierarchical structure and division of labour;
ii) direction to individual brothers;
iii) brothers’ activity was
directed to the furtherance of the Institute’s objectives;
iv) manner of conduct governed by Institute’s rules to indicate a close degree of connection.
In the context of vicarious liability the relationship between the teaching
brothers and the Institute had many of the elements, and all the essential elements,
of the relationship between employer and employees, what were these? (From the SC judgement?
i) The institute was subdivided into a hierarchical structure and
conducted its activities as if it were a corporate body.
ii) The teaching activity of the brothers was undertaken because the
Provincial directed the brothers to undertake it. True it is that the brothers
entered into contracts of employment with the Middlesbrough Defendants,
but they did so because the Provincial required them to do so.
iii) The teaching activity undertaken by the brothers was in furtherance
of the objective, or mission, of the Institute.
iv) The manner in which the brother teachers were obliged to conduct
themselves as teachers was dictated by the Institute’s rules.
The relationship between the teacher brothers and the Institute differed from that of the relationship between employer and employee in that…
i) vows.
The brothers were bound to the Institute not by contract, but by their
ii) Far from the Institute paying the brothers, the brothers entered into
deeds under which they were obliged to transfer all their earnings to the
Institute. The Institute catered for their needs from these funds.
Which is the another case we consider in regard to a relationship akin to employment?
Cox v Ministry of Justice [2016].
What occured in Cox v Ministry of Justice [2016]?
Claimant worked in a prison kitchen and was injured when a prisoner, working in the kitchen, negligently dropping
a sack of rice on her.
What was the question of conern in this case?
Key question was whether prisoner working in the kitchen (for prison authorities) entailed a relationship akin to
employment.
What elements within the circumstances were considered to amount to a relationship akin to employment?
Court emphasised the following essential elements:
i) prisoners working in the kitchen were integrated into the operation of the prison and played an integral role,
ii) were placed in a context where there was a risk that they commit negligent acts,
iii) received training in light of this,
iv) they worked under the direction of the prison staff.
While the prisoner was clearly not employed by the prison, he was serving a prison sentence, he was paid a nominal sum to work in the kitchen as part of the rehabilitation process and for what reason was held by lord Reed that clarified this relationship to be one akin to employment?
Lord Reed held that prisoners working in the kitchens, under the direction of prison staff, were integrated into the operation of the prison and carried out an integral part of its activities for its benefit: feeding prisoners.
They could thus be described as ‘akin to employment’.
Which is the another case we consider in regard to a relationship akin to employment?
Armes v
Nottingham
County Council
[2017].
What did this case concern?
Case concerned a child who was abused by foster
parents.
What was the key question in this case?
Key question was whether relationship between foster parent and local authority was sufficiently akin to employment.
The leading judgment by Lord Reed leaned more heavily into what in this case?
The 5 policy factors identified in CCWS.
What elements within the circumstances were considered to amount to a relationship akin to employment?
Lord Reed emphasised:
i) activity was carried out for the benefit of council,
ii) the council’s conduct created a risk of harm,
iii) the council exercised a sufficient measure of
control through powers of ‘approval, inspection,
supervision and removal’.
They had received training, were paid expenses and were subject to inspection and supervision without any parallel to ordinary family life.
As such, they provided care as an integral part of the local authority’s organisation of its childcare services and could not, in the view of the court, be seen as carrying out an independent business of their own.
Baroness Hale, in Barclays Bank, later suggested what about Armes v
Nottingham
County Council?
Baroness Hale, in Barclays Bank, suggested that this is an outlier, marking the outer limits of vicarious liability.
What must i remember about Armes?
Be careful in the application of Armes, this is a reflection that the court did not wish to deny the victims justice, too much lean on policy justifications as opposed to elements of the relationship.
If i am going to apply it, apply it with caution.
Which is the case we consider in regard to a relationship akin to employment which was unsucsessful?
Various Claimants
v Barclays Bank
plc [2020].
What was this case considered?
A restatement of the essential distinction between employment and
independent contractors.
What was the concern in this case?
Bank engaged a doctor to carry out pre-employment checks who abused patients.
Numerous individuals sued Barclays,
arguing they should be vicariously liable
What did Baroness hale state in Various Claimants v Barclays Bank plc [2020].
“There appears to have been a tendency to elide the policy reasons for the doctrine of the employer’s liability for the acts
of the employee […] with the principles which should guide the development of that liability…” Baroness Hale,
What did Baroness hale further state in Various Claimants v Barclays Bank plc [2020] regarding what should be considered in determining a relationship in vicarious liabilty?
“The question therefore is, as it always has been, whether the tortfeasor is carrying out business on his own account or whether he is in a relationship akin to employment with the
defendant. In doubtful cases, the five ‘incidents’ identified [in CCWS] may be helpful in identifying a relationship which is
sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability… Where it is clear
that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”
Was the doctor in this case an employee or self employed/ an independent contractor?
An independant contractor.
Was he an independent contractor? (Quote by Baroness Hale).
“Clearly [the doctor] was not at any time an employee of the bank. Nor viewed objectively, was he anything close to an employee. He did, of course, do work for the
bank. The bank made arrangements for the examinations and sent forms for him to fill
in. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the bank but were clearly independent
contractors’.
Why was he an independent contractor? (Quote by Baroness Hale)
‘[The doctor] was not paid a retainer which might have obliged him
to accept a certain number of referrals from the bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance… He was in business in his own
account as a medical practitioner with a portfolio of patients and clients. One of those
clients was the bank.”
Essentially, for what reasons was the doctor an independant contractor?
- He was able to chose any clients he accepted or denied.
- Essentially, he had freedom in the operation of his work and was not under a degree of control.
- He was paid per report, not by way of a normal, continous salary.
- He was free to refuse an offered examination should he wish to do so
- Personal insurance
- The bank was just one of his clients, he worked for others also.
Traditionally, it had been assumed that only a single defendant could be vicariously
liable for tortious conduct, what is the current position?
However, as part of the expansion of vicarious liability, courts adopted a more liberal approach.
It has been possible for dual VL to occur.
In which case were multiple employers found vicariously liabile?
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2006].
Whst occured in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd
and others [2006]?
Complex arrangement involving multiple contractors in order
to install air conditioning at the claimant’s factory.
Air conditioning failed, leading to flooding.
The court endorsed the idea that you can have dual VL, they are happy for multiple different entity’s to be liable for a single course of conduct.
But what caused difficulty was deciding what should the test be?
“[The] central question is: who was entitled, and perhaps in theory obliged, to give orders as to how the work should or should not be done?”
Lord May.
“I am a little sceptical that the doctrine of dual vicarious liability is to be wholly equated with the question of control…
[W]hat one is looking for is a situation where the employee in question, at any rate for the relevant purposes, is so much a
part of the work, business or organization of both employers that it is just to make both employers answer for his negligence.”
Lord Rix.
What is the leading authority on dual vicarious liability?
The Christian Brothers case.
Controversy arose regarding the appropriate test to
determine dual liability between the Institute and the school managers.
Was this case settled in favour of
Lord may – more traditional, control degree or
Lord Rix – his test was endorsed, business integration test.
- This case settled the approach in favour of Lord Rix.
- No justification for the control test, control is not decisive.
- Independent consideration of the relationship with each potential entity.
- This is more reflective of the business integration approach.
What did Lord Phillips state in this case regarding dual VL?
“I do not consider that there is any justification for applying [May LJ’s control test] when considering whether there is dual vicarious liability for the act of a tortfeasor it is necessary to give independent consideration to the
relationship of the tortfeasor with each defendant in order
to decide whether that defendant is vicariously liable. In considering that question in relation to each defendant the
[business integration] approach of Rix LJ is to be
preferred.”
Summary of relationship between tortfeasor and defendant -
- Fundamental distinction between employees (+ relationships akin to employment) where an ‘employer’ will be vicariously liable, and independent contracts where the ‘employer’ will not.
- The determination of whether an individual is an employee (or sufficiently akin to an
employee) examines the relationship as a whole. - Past judgments highlight the sort of factors which are relevant and the sort of relationships that have been found to constitute employment (or sufficiently akin to
employment). - In marginal cases, reasoning can be supported by the five ‘incidents’ or policy
considerations outlined by Lord Phillips in CCWS.
What is the third element to vicarious liability?
A connection that links the relationship between the tortfeasor and employer and the commission of the tort—Acting in the course of employment.
Essentially, the relationships between element one and element two.
When will the employer be liable for torts committed by the employee?
The employer will be liable for torts committed by the employee “when acting in the course of employment”.
What did Parke B state in Joel v Morison (1834) regarding the course of employment?
The master is only liable where the servant is acting in the course of his
employment. If he was going out of his way, against his master’s implied commands, when driving his master’s business, he will make his master liable; but
if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”
Historically, this has been interpreted in a fairly claimant friendly fashion, which authorities depict this?
Smith v Stages [1989] A.C. 928:
Two employees who normally worked in England were assigned emergency work in South Wales. Car crashed on return journey. Employer
found liable.
Century Insurance v NI Road Transport Board [1942] A.C. 509:
Lorry driver caused fire by flicking away cigarette while refueling petrol station. Employer found liable.
Can employers be liable even for torts they have prohibited?
Courts have been reluctant to allow employers the opportunity to avoid vicarious liability by, e.g., prohibition tortious conduct.
As a consequence, employers can be liable for acts which they may have prohibited.
An important series of cases have sought to define and refine the distinction between conduct carried out in the course of employment and conduct that is merely the tortfeasor’s ‘own frolic’, how are these tests regarded?
The ‘close connection’ test.
Thus, ‘acting in the course of employment’ has been subsequently replaced by what?
It has now been replaced by a test that imposes vicarious liability for actions closely connected to the job for which the tortfeasor is employed.
The “course” or “scope” of employment will depend on the facts of each particular case.
Which is the first authority we considered in regard to the close connection test?
Lister v Hesley Hall Ltd.
What did the house of lords review in Lister v Hesley Hall Ltd?
The House of Lords in Lister v Hesley Hall Ltd reviewed the application of the course of employment test in the context of serious criminal conduct amounting to an intentional tort.
What occured in Lister v Hesley Hall Ltd?
Here, the warden of a home for boys with emotional and behavioural difficulties had been found guilty of systematic sexual abuse of some of the boys under his care.
In regard to close connection, what did Lord Steyn outline to be the appropriate approach to determine this closeness?
The appropriate “approach is to concentrate on the
relative closeness of the connection between the nature of the employment and the particular tort.”
What was held in this case, was there a relative closeness of the connection between the nature of the employment and the particular tort?
Lord Steyn held the sexual abuse was inextricably interwoven with the
carrying out by the warden of his duties.”
Why was this the case?
Where the criminal act amounting to a tort was closely connected to the work the perpetrator was employed to do, it would be fair and just to find his
employer vicariously liable.
The warden in Lister had been employed to provide a home for the boys and supervise them day-to-day in circumstances where he and his disabled wife were often the only members of staff on the premises.
Such close contact was sufficient to satisfy the court that there was a close connection between what he had been employed to do and the acts of abuse committed.
What was the next case to lay down a routinely quoted definition of the close connection test?
Dubai Aluminium Co Ltd v Salaam [2003]
What was stated by lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2003]?
“[W]rongful conduct must be so closely connected with the acts the partner or employee was authorized to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.” Lord Nicholls
This formulation was supported in which subsequent decision?
A particularly generous application may be found in Mattis v Pollock.
What occured in Mattis v Pollock?
Here, the Court of Appeal held a nightclub owner vicariously liable when one of its guests had been rendered paraplegic when stabbed by the bouncer outside the club.
Although the act had been one of revenge for injuries and humiliation inflicted on the bouncer some time earlier in the club by the victim’s group of friends, the court held that since the employee had been encouraged by his employer to keep order by violent behaviour, the employer would be vicariously liable for an assault linked to the incident in the club.
Judge LJ in Mattis described the close connection test as what?
Judge LJ in Mattis described it as “a deceptively simple question”.
What slight ambiguity remained?
Put simply, just how closely connected does the tort have to be to the employee’s job for the employee to be “fairly” and “properly” said to be acting in the course of employment?
In what later case did the Supreme Court argue that what was needed was a simplified version of the close connection test?
Mohamud v WM Morrison Supermarkets Plc.
What occured in Mohamud v WM Morrison Supermarkets Plc?
In the case itself, Mohamud had been assaulted by a Morrison employee when he had made an innocent enquiry at its petrol kiosk concerning the availability of printing facilities. The employee had threatened and then assaulted Mr Mohamud, despite instructions from his supervisor to stop.
Two-step approach by Lord Toulson was applied and suggested in order to determine a ‘close connection’.
What was the simplification of the test?
(1) What functions or “field of activities” had been entrusted by the employer to the employee and
(2) Whether there was a sufficient connection between the job and the wrongful conduct such as to make it right for the employer to be held vicariously liable?
In Mohamud v WM Morrison Supermarkets Plc was a sufficient connection found which found the employer VL?
Yes,
Why?
- Lord Toulson found that the employee’s job was to attend to customers and respond to their enquiries.
- This was a foul mouthed and inexcusably bad way of doing this.
- While a gross abuse of his position, it was sufficiently connected with the business in which he was employed to serve customers.
- For the court, “the risk of an employee misusing his position is one of life’s unavoidable facts” and social justice required that the employer be held vicariously liable.
What was stated by Lord Toulson regarding the sufficient connection between the employment and the conduct?
“In the present case it was [the employee’s] job to attend to customers and to respond to their inquiries. His conduct in answering the claimant’s request in a foul-mouthed way and ordering him to leave was inexcusable but within the ‘field of activities’ assigned to him.”
Why is this case slightly controversial?
This new formulation gave rise to fears that claimants need only show a causal link between the tort and the employee’s job to establish vicarious liability.
This was based on the fact that the decision seemed to replace the “close” connection test with one based on showing merely a “sufficient” connection.
Lower courts started to think a causal connection was needed and this is enough.
In the exam, how should i go about this third element (according the Phil)?
Cite Dubai and treat Mohamud v WM Morrison Supermarkets as a simplification of the rule.
Which case a couple years later further helps us understand the third element of vicarious liability?
Various Claimants v Wm
Morrison Supermarkets plc.
What occured in arious
Claimants v Wm
Morrison Supermarkets plc?
- An internal IT auditor had held a grudge against his employers, Morrisons.
- In revenge, he had posted confidential payroll data for the company’s entire workforce on the internet using his home computer. - The employees, whose data had been disclosed, sued Morrisons, claiming they were vicariously liable for this misuse of private information.
- The employee was motivated by a desire to injure employer following disciplinary proceedings.
What was held by the supreme court in this case?
Supreme Court held that the employee’s wrongful disclosure of data was not so closely connected with the tasks he was authorised to do that it could be fairly and properly be regarded as made in the ordinary course of employment.
An employer should not normally be liable for an employee, as here, who was not furthering his employer’s business, but rather pursuing a personal vendetta.
What was stated by Lord Reed in this case?
”The disclosure of data […] did not form part of [the tortfeasor’s] functions or field of activities… [A] temporal or causal connection does not in itself satisfy the close connection test.”
What was further stated by Lord Reed in this case?
“[I]t is abundantly clear that [the tortfeasor] was not engaged in furthering his employer’s business… [H]e was pursuing a personal vendetta, seeking vengeance [against his employer].”
Three points arose in this case, what was the first?
- First, the Supreme Court reasserted the “close” connection test. The test in Mohamud was explained as a “simplification” of the close connection test stated in Dubai Aluminium, rather than one intended to make any change in the law.
Three points arose in this case, what was the second?
- Secondly, the formulation used by the Court is taken from Lord Nicholls in Dubai Aluminium (set out above) and not Mohamud. In so doing, the Supreme Court avoided the extraordinary finding of the Court of Appeal that an employee seeking revenge on his employers could render his employers vicariously liable for his wrongs and thereby cause his employers further harm
Three points arose in this case, what was the third?
- Thirdly, the Court advised that the close connection test should be applied with reference to the facts of each case with assistance provided by earlier court decisions. Courts should not therefore rely on policy considerations.
Lord Reed suggested, however, that the close connection test had been applied more generously in cases concerning the sexual abuse of children where the courts had emphasised the importance of specific criteria such as the employer conferring authority on the employee over the victims in circumstances that created or significantly increased the risk of abuse taking place.
Did this mean that a special “tailored” test would be applied in future in sexual abuse cases?
The Supreme Court in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB in 2023 denied this to be the case.
What occured in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB?
Mrs B, who was at that time a Jehovah’s Witness, had been raped by an elder (Sewell) of her congregation. The attack had taken place in the Sewell family home after a lunch between the Sewell and B families (the families being close friends).
What was held and suggested in this case?
It was accepted that it had not been in the course of any religious duties.
Here Sewell had been abusing his position as Mrs B’s friend, not his position as an elder.
Overturning the Court of Appeal that had applied a “tailored” approach, Lord Burrows advised that the Morrisons test should be applied in all cases.
Lord Burrows denied the need for a distinct test for sexual abuse but recognised that policy might be a useful final check on the justice of the outcome in difficult cases.
What did he conclude in this case?
“The idea that the law still needs tailoring to deal with sexual abuse cases is misleading. The necessary tailoring is already reflected in, and embraced by, the modern tests”
‘In the course of employment’ conclusion -
- Apply the close connection test
- Courts tend to refer back to Lord Nicholls in Dubai Aluminium; I quite like Lord Toulson’s test in Mohamud. If you use Mohamud remember ‘sufficient’ does not
signify a lower standard than ‘close’. - Past judgments are always a reliable guide for applying the test to ‘new’ situations.
What should i remember regarding prohibited conduct?
Finally, it should be noted that even if the conduct in question has been expressly prohibited by the employer, this does not mean that the employee has acted outside the scope of his or her employment.
Whilst this may seem unfair to employers, as stated earlier, it would be wrong if the employer could escape liability by simply prohibiting the commission of torts in the course of employment.
If the prohibited conduct can be found to benefit the employer in some way, then there is authority that the courts will be willing to find the employer vicariously liable.
Which authority demonstrates this?
Limpus v London General Omnibus Co.
What occured in Limpus v London General Omnibus Co?
- In Limpus v London General Omnibus Co, the company’s instructions not to race with, or obstruct, other buses had been disobeyed by one of its drivers who had obstructed a rival bus. - This led to a collision with the plaintiff’s bus, which overturned.
- The court found the company vicariously liable for the driver’s negligent actions, on the basis that the employee’s actions were simply an improper and unauthorised mode of doing an act which he was authorised to do, namely promoting the company’s bus service.
What should also always be recalled in consideration of close conection test?
The test of close connection should be applied with reference to previous case-law, recognising that it was a test of principle rather than pure policy.
The tort must be so closely connected with the tasks the employee was authorised to do that it could be fairly and properly be regarded as made in the ordinary course of employment.
DO NOT JUST RELY ON POLICY JUSTIFICATIONS.
The UK Supreme Court in BXB, in 2023, approved these limit, what was understood from this test?
Lord Burrows found that, in the vast majority of cases, these tests can be applied without considering the underlying policy justification for vicarious liability, although, in difficult cases, having applied the tests to reach a provisional outcome on vicarious liability, it may be a useful final check on the justice of the outcome to stand back and consider whether that outcome is consistent with the underlying policy.
Element three complete x
Element three complete x
Liability for independent contractors.
Liability for independent contractors.
What is the general rule?
General rule is that entities will not be liable for any tortious acts and
omissions of independent contractors.
What is the longstanding authority for the employer being liable when the authorised an independent contractor to commit a tort.
Ellis v Sheffield Gas
Consumers (1853).
There are two exceptions to this rule, what are they?
- If the entity has authorised the commission of a tort.
- If the entity contracted out the performance of a non-delegable duty.
What is the general principle here?
If you ask them to commit a tort, you may be liable.
What occured in Ellis v Sheffield Gas
Consumers (1853) and what was held?
Defendant hired a third party to dig a trench across a public highway (thus committing a public nuisance).
“I am clearly of the opinion that, if the contractor does the
thing which he is employed to do, the employer is responsible for that thing as if he did it himself… It would be monstrous if the party causing another to do a thing were exempted from liability for that act, merely because there was a contract between him and the person immediately causing the act to be done.” Lord Campbell.
Whilst an employer cannot be vicariously liable for the torts of independent contractors, an employer may nevertheless find itself liable where it owes a non-delegable duty to the victim, which authority supports this?
Woodland v
Swimming
Teachers
Association and
others [2013].
What is a non-delegable duty and in which case was its definition described?
“The expression ‘non-delegable duties of care’ is commonly used to refer to duties not merely to take care in performing a given function but to ensure that care is taken. The expression thus refers to a higher standard of care than the ordinary duty of care.
Duties involving the higher standard of care are described as non-delegable because
they cannot be discharged by the exercise of reasonable care in the selection of a third party to whom the function in question is delegated.”
Lord Reed, Armes v Nottingham County Council [2017] UKSC
Which authority provides the leading judgment on non-delegable duties and provides the general test?
Woodland v
Swimming
Teachers
Association and
others [2013]
What occured in Woodland v
Swimming
Teachers
Association and
others [2013]?
Claimant suffered brain injury at swimming session organized
by school through independent contractors.
Lord Sumption identified five factors which would give rise to a non-delegable duty
Lord Sumption identified five factors which would give rise to a non-delegable duty, what is the first?
Lord Sumption set out a set of five criteria which will help identify the existence of non-delegable duties in future:
▪The claimant is a patient or a child, or for some other reason especially vulnerable or dependent on the protection of the defendant against the risk of injury.
what is the third?
▪The claimant had no control over how the defendant chose to perform the relevant obligations (whether personally or through employees or third parties).
what is the second?
▪There is a pre-existing relationship between the claimant and the defendant, independent of the negligent act or omission itself, which
(i) placed the claimant in the actual custody, charge or care of the defendant, and
(ii) from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, not just a duty to refrain from conduct which would foreseeably damage the claimant. It was characteristic of such relationships that they involved an element of control.
what is the fourth?
▪The defendant had delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the claimant; and the third party was exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that went with it.
what is the fifth?
▪The third party had been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.
The Woodland case has the potential to increase the use of the non-delegable duty mechanism and respond to “out sourcing” of duties to independent contractors which might previously have been undertaken by the defendant’s employees (and, for whom as Lady Hale pointed out, the school would have been vicariously liable).
However, what will it not do?
It will not, however, extend to the defaults of independent contractors providing extra-curricular activities outside school hours, e.g. organising a school trip during the school vacation, or for individuals to whom the duty to care for the pupils has not been delegated e.g. a bus-driver taking the pupils and teachers on a trip to the zoo.
Can vicarious liability be justified?
Yes, Lord Phillips in the leading Supreme Court decision of Various Claimants v Catholic Child Welfare Society argued that five key policy arguments could be identified that would usually make it fair, just and reasonable to impose vicarious liability on the employer.
What are the five key policy arguments could be identified that would usually make it fair, just and reasonable to impose vicarious liability on the employer?
(i)the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability (the deeper pockets argument);
(ii)the tort will have been committed as a result of activity being taken by the employee on behalf of the employer (delegation of task argument);
(iii)the employee’s activity is likely to be part of the business activity of the employer (enterprise liability argument);
(iv)the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee (creation of risk argument); and
(v)the employee will, to a greater or lesser degree, have been under the control of the employer (control argument).
In Cox v Ministry of Justice, Lord Reed approved these five factors, but noted that they are not all equally significant, which are of less significance?
The first (deeper pockets) and fifth (control) were, in his view, unlikely to be of independent significance in most cases.
In contrast, whoch justifications were considered in Armes v Nottinghamshire CC?
In contrast, in Armes v Nottinghamshire CC227 his Lordship did find it helpful to look at all five factors and was notably influenced by the fact that the local authority was far more able than the foster parents to provide substantial sums of compensation and the local authority had exercised significant control over both what the foster parents did and how they did it.
The Supreme Court more recently in Barclays Bank v Various Claimants and WM Morrison Supermarkets Plc v Various Claimants reminded the courts of what?
The need for a principled approach, incrementally developing past case law and that vicarious liability should not be determined simply on the basis of broad tests of social justice.
The mere presence of all five of the above factors does not therefore guarantee that vicarious liability will be imposed by the court.
Lady Hale in Barclays Bank commented specifically on the dangers of favouring policy rather than principle in engaging in legal development.
