Vicarious Liability (rev notes) Flashcards
Vicarious liability (def)
= a form of strict liability which involves holding a person accountable for the tortious acts of another due to the relationship between them (Angus in reading list)
Vicarious lb - st lb
Rix LJ in Viasystems v Thermal Transfers:** vicarious liability “involves no fault on the part of the employer”**
=> “It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit”
Vlb - 2 stage test
= Various Claimants v. Catholic Child Welfare Society :
- Is the relationship sufficiently akin to employment for it to be fair, just & reasonable to hold employer vicariously liable for T’s acts ?
- Was there a sufficiently close connection btw the act and the relationship for the act to be considered as done ‘within the course of employment’ ?
Vlb - relationship akin to employment (1)
Question = whether relº capable of giving rise to vic lb / justified in doing so -> no need for there to be an employee contract btw T and D, as long as similar relº
= Lord Phillips in Various Claimants v Catholic Child Welfare Society
+ see also SC in BXB and Cox v Ministry of justice
Vlb - relationship akin to employment (2) - Relevant factors
= SC in BXB : relevant features to determine whether relº ‘akin to employment’
- (i) whether the work carried out by T was being paid for
- (ii) how ‘integral’ T’s work was to the organisation
- (iii) the extent of D’s control over T’s work
- (iv) whether T’s work was being carried out for D’s benefit / furtherance of D’s aims
- (v) Situation regarding appointment & termination
- (vi) Whether there was a hierarchy of seniority into which T’s role fitted
Vlb - relationship akin to employment (3) - Lord Philip’s Five incidents
make it ‘fair, just and reasonable’ to impose vic lb on ‘employer’ = Christian Brothers at [35]:
i. Employer is more likely to have the means to compensate V + can be expected to insure against such liability
ii. Tort committed as a result of an activity undertaken by employee on behalf of employer
iii. Employee’s activity is likely to be part of some business activity of the employer
iv. Employer created risk of the tort being committed by the employee by employing him to carry out hat activity
v. Employee will, to a greater or lesser extent, have been under the control of the employer
Vlb - relationship akin to employment (4) - not voluntary
= Cox v Ministry of Justice : relationship does not have to be voluntary : relº btw prison employee and prisoners (performing some tasks for prison) was ‘akin to employment’)
Vlb - relationship akin to employment (4) - not voluntary - Independent contractors
= Barclays Bank Plc v Various Claimants : independent contractors carrying out business of their own will not satisfy the test
Vlb - dual vicarious liability ?
Yes, accepted in Viasystems v Thermal transfer, confirmed by SC in Various Claimants v Catholic Child Welfare Society
Vlb - verify outcome against ‘policy considerations’
= SC in BXB
Vlb - within course of employment (1)
Test : whether there is a sufficiently close connection btw the tortious act and employment for it to be fair, just and reasonable to impose vicarious liability on D, having regard to the circumstances of employment and inherent risks that it involves = Lister v Hesley Hall, approved in Christian Brothers, Barclays Bank
+ following Various Claimant v WM Morrison Supermarkets: was T engaged in furthering D’s business or on a ‘frolic of his own’? (Lord Reed at [47])
Vlb - within course of employment (2) - former salmond test
a wrongful act is deemed to be done by a “servant” in the course of his employment if “it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master”
=> changed bcs sexual abuse cases
Vlb - within course of employment (3) - broad & potentially problematic:
-
Mattis v Pollock : 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 -
Mohamud v Morrisons Supermarkets : 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
Vlb - within course of employment (3) - reining in the test
= Lord Reed in in Various Claimants v Morrisons Supermarkets:
- timing and causation are not decisive, they do not by themselves satisfy the close connection test
- neither is “the mere fact that [T]’s employment gave him the opportunity to commit the wrongful act”
- Motive is relevant
Vlb - within course of employment (4) - relevance of motive
= Lord Reed in in Various Claimants v Morrisons Supermarkets: motive is relevant
- Lord Toulson’s ‘motive is irrelevant’ “should not be taken in isolation” => tries to stretch Lord Toulson’s reasoning to avoid overruling Mohamud
- Approves Lord Nicholls in Dubai Aluminium: distinction between “cases where C the employee was engaged, however misguidedly, in furthering his employer’s business, and cases where the employee is engaged solely in pursuing his own interests: on a ‘frolic of his own”
