V.L

Question 1

What is vicarious liability?

Answer 1

Vicarious liability is when the law holds one person (usually an employer) liable for the torts committed by another (usually an employee), regardless of fault or prevention ability.

Question 2

What are the two main requirements to establish vicarious liability?

Answer 2

Capable Relationship: The relationship between the defendant and the primary tortfeasor must be capable of attracting vicarious liability (e.g., employment or akin to employment).
Close Connection: There must be a sufficiently close connection between that relationship and the tort committed.

Question 3

What types of relationships can attract vicarious liability? (+ case reference)

Answer 3

Employment Relationships: Traditional employer-employee relationships.

Relationships Akin to Employment: Includes relationships with control and integration similar to employment, such as foster care arrangements and voluntary organizations.
Case Reference: Catholic Child Welfare Society v Various Claimants [2012]: Expanded vicarious liability to non-employment relationships where the organization has control over the activities of individuals.

Question 4

What factors indicate a relationship akin to employment? (ARMES + COX)

Answer 4

Moral Duty of Obedience: The primary tortfeasor owes the defendant a duty of obedience (e.g., foster parents under local authority supervision).

Control: The defendant has significant control over the tortfeasor’s activities - Armes v Nottinghamshire Country Council [2017]: Local authority liable for foster parents’ abuse due to control over fostering.

Integral to Business: The tortfeasor’s activities are an integral part of the defendant’s business and benefit the defendant - Cox v MoJ [2016]: Ministry of Justice liable for prisoner’s negligence in prison kitchen, showing control and integration into the enterprise.

Question 5

What is the ‘Recognisably Independent Business’ exception in vicarious liability? (+case)

Answer 5

A relationship does not attract vicarious liability if the tortfeasor’s conduct is entirely attributable to their own independent business or that of a third party.

Case Reference: Cox v Ministry of Justice [2016]

Question 6

What two elements determine a ‘close connection’ for vicarious liability?

Answer 6

Cox v MoJ [2016]: Relationship increased the risk of tort occurring.
Mohamud v Morrisons Ltd [2016]: Tort occurred within the field of activities.

Question 7

How is the ‘field of activities’ defined in vicarious liability? (+3cases)

Answer 7

Includes general, abstract tasks part of the individual’s job description or designed to benefit the employer.

Factors:
Job Description: Tasks are part of the job or benefit the employer - Mohamud v Morrisons Ltd (2016) - Employee’s assault during work hours.

Authority: Tortfeasor’s actions involve abuse of power or authority granted by the relationship - Maga v Birmingham Roman Catholic Archdiocese Trustees [2010]: Abuse of power by a priest

Sequence of Events: An unbroken sequence of events from assigned duties to the tort - Bellman v Northampton Recruitment [2018]: Managing director’s assault at a work-related event

Question 8

What limits the scope of vicarious liability for employers? (+2cases)

Answer 8

Actions motivated purely by personal concerns are less likely to attract vicarious liability - Vaickuviene v J Sainsbury plc [2012]: Murder motivated by personal animosity not connected to employment.

Torts outside work hours and away from work premises generally do not establish a close connection - WM Morrison Supermarkets v Various Claimants [2020]: Deliberate data leak by an employee as a personal vendetta.

Question 9

Summarize the significance of the case Mohamud v Morrisons Ltd [2016] in vicarious liability.

Answer 9

The UK Supreme Court held Morrisons liable for an assault by an employee.
Established that the assault was within the scope of employment as it occurred during working hours in response to a customer inquiry.
Emphasized the connection between employment duties and the wrongful act.

Question 10

What is the principle established in Lister v Hesley Hall Ltd [2002] regarding vicarious liability?

Answer 10

The House of Lords held that the employer was vicariously liable for the sexual abuse committed by an employee (warden of a boarding house).
Established the “close connection” test: the tort must be closely connected to the employee’s duties, making it fair and just to hold the employer liable.

Question 11

How does the case Bazley v Curry [1999] influence vicarious liability principles?

Answer 11

The Supreme Court of Canada held that a non-profit organization was vicariously liable for the sexual abuse committed by an employee.
Emphasized the need to consider whether the employer’s enterprise created or materially increased the risk of the tort occurring.

Question 12

Explain the significance of Dubai Aluminium Co Ltd v Salaam [2003] in vicarious liability.

Answer 12

The House of Lords held that partners in a law firm were vicariously liable for the fraudulent acts of another partner.
Confirmed that vicarious liability can apply to partnerships and emphasized the importance of the “close connection” test in determining liability.

Question 13

What role does the concept of ‘enterprise risk’ play in vicarious liability?

Answer 13

Enterprise Risk: Employers can be held liable if their business activities create or significantly increase the risk of torts being committed by employees.
Case Reference: Bazley v Curry [1999]: The non-profit organization’s activities increased the risk of abuse, justifying vicarious liability.

Question 14

What is the significance of the case Various Claimants v Institute of the Brothers of the Christian Schools [2012]?

Answer 14

The UK Supreme Court held that the Institute was vicariously liable for sexual abuse by its members, even though they were not traditional employees.
Expanded vicarious liability to include non-employment relationships where the organization has control over individuals performing activities on its behalf.

Question 15

How does E v English Province of Our Lady of Charity [2012] expand the scope of vicarious liability?

Answer 15

The Court of Appeal held that the Catholic Church was vicariously liable for sexual abuse committed by a priest.
Emphasized that vicarious liability can apply to relationships akin to employment, focusing on control and integration into the organizational structure.

Question 16

Describe the ‘frolic of their own’ defense in vicarious liability.

Answer 16

Employers are not vicariously liable if the employee was acting outside the scope of their employment on a personal venture.
Case Reference: Joel v Morrison (1834): Established that employers are not liable for acts committed by employees on a ‘frolic of their own’.

Question 17

What is the role of non-delegable duties in relation to vicarious liability?

Answer 17

Non-delegable duties impose liability on employers for certain activities even if carried out by independent contractors.
Ensures accountability when activities pose significant risks to others.
Case Reference: Woodland v Swimming Teachers Association [2013]: Established criteria for non-delegable duties, holding a school liable for the negligence of independent contractors during a swimming lesson.

Question 18

How does the Barclays Bank plc v Various Claimants [2020] case influence the understanding of vicarious liability?

Answer 18

The UK Supreme Court ruled that Barclays Bank was not vicariously liable for the sexual assaults committed by a doctor during pre-employment medical examinations.
Reinforced the distinction between independent contractors and employees, emphasizing that control and integration into the business are key factors.

Question 19

What is the ‘fair, just and reasonable’ test in vicarious liability?

Answer 19

This test determines whether it is fair, just, and reasonable to impose vicarious liability on the employer for the acts of the employee.
Considers factors like the nature of the relationship and the connection between the tort and the employment.
Case Reference: Mohamud v WM Morrison Supermarkets plc [2016]: Applied this test to determine the employer’s liability for the employee’s assault on a customer.

Question 20

What is the structure for answering a problem question on vicarious liability?

Answer 20

1. Identify the Tort Committed by the Primary Tortfeasor

Determine the specific tort committed (e.g., battery, negligence).
Establish the primary tortfeasor’s (employee) personal liability for the tort.
Case Example: Dillon hitting Bert (Battery).
2. Establish the Capable Relationship

Employment Relationship:
Confirm if there is an employer-employee relationship.
Case References: Catholic Child Welfare Society v Various Claimants [2012], Armes v Nottinghamshire County Council [2017], Cox v Ministry of Justice [2016].
Akin to Employment:
Determine if the relationship is akin to employment, considering control, integration, and benefit to the organization.
Factors: Payment for services, control, provision of equipment, financial risk, etc.
Case Reference: Market Investigations Ltd v Minister of Social Security [1968].
3. Assess the ‘Close Connection’

Field of Activities:
Evaluate if the tort occurred within the scope of the employee’s duties or activities assigned by the employer.
Case References: Lister v Hesley Hall Ltd [2002], Mohamud v WM Morrison Supermarkets plc [2016], Bellman v Northampton Recruitment Ltd [2018].
Risk Creation:
Determine if the employment relationship created or increased the risk of the tort.
Case Reference: Cox v Ministry of Justice [2016].
4. Apply the Law to the Facts

Analyze the facts using the established principles and case law.
Example Applications:
Dillon hitting Bert: Examine if Dillon’s battery was closely connected to his duties as a chef.
Dougal punching Clem: Assess Dougal’s actions within the context of his employment.
Biggles’ assault on Bella: Determine if the agency relationship and the assault were connected.
5. Consider Potential Defenses

‘Frolic of Their Own’: Assess if the employee was acting independently and outside the scope of employment.
Contributory Negligence: Determine if the claimant’s actions contributed to the harm.
6. Conclude with Likely Outcomes

Summarize the likelihood of vicarious liability based on your analysis.
Suggest appropriate remedies (damages, injunctions).

Question 21

Explain the concept of dual vicarious liability.

Answer 21

Dual vicarious liability can occur when two different defendants have control over the tortfeasor’s activities. Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006]: Accepted the possibility of dual liability based on control and business integration.
Christian Brothers: Endorsed the approach to determining dual liability.

Question 22

What is the significance of the Various Claimants v Wm Morrison Supermarkets plc [2020] case?

Answer 22

Clarified that a close connection, not just a causal relationship, is necessary for vicarious liability.
Employers are not liable for conduct motivated purely by a desire to harm the employer.
Case Outcome: Morrisons not liable for an employee’s data leak motivated by a personal vendetta.

Question 23

What is the ‘close connection’ test in vicarious liability?

Answer 23

Test: The wrongful act must be closely connected to the employment duties to make it fair to impose liability on the employer.
Case References:
Lister v Hesley Hall Ltd [2001]: Close connection between employment and tort.
Dubai Aluminium Co Ltd v Salaam [2003]: Wrongful conduct closely connected to authorized acts.
Mohamud v Wm Morrison Supermarkets Plc [2016]: Sufficient connection between employment position and wrongful conduct.

Question 24

What are the exceptions to the general rule that entities are not liable for independent contractors?

Answer 24

If the entity has authorized the commission of a tort.
Case Reference: Ellis v Sheffield Gas Consumers (1853).
If the entity contracted out the performance of a non-delegable duty.
Case Reference: Woodland v Swimming Teachers Association [2013].
Non-delegable duty factors:
The claimant is especially vulnerable.
Antecedent relationship placing C in charge of D.
C has no control over how D discharges duty.
D delegates an integral function of the duty to a third party.
The third party was negligent in that function.

Question 25

What are the two key questions to determine the scope of vicarious liability?

Answer 25

What sort of relationship must exist between the individual and the defendant?
How must the individual’s conduct relate to that relationship to impose liability on the defendant?
Quote: “The scope of vicarious liability depends upon the answers to two questions…” - Lord Reed.

Question 26

What is the policy rationale behind vicarious liability?

Answer 26

To ensure liability is borne by a defendant with the means to compensate victims.
Reasons:
Employers often have deeper pockets.
Torts are consequences of conduct on behalf of the employer.
Torts are part of the employer’s business activities.
The employer creates the risk of the tort.
The employee is under the employer’s control.
Quote: “Liability for the tortious wrong is borne by a defendant with the means to compensate a victim.” - Lord Phillips.

Question 27

“The Basis of Vicarious Liability” by Harold J. Laski What is the fundamental principle behind vicarious liability according to Laski?

Answer 27

Principle: Vicarious liability is based on public policy and the need to ensure that liability falls on those best able to compensate victims.
Key Point: Employers are held liable not only for acts they have authorized but also for unauthorized acts by employees if such acts are closely related to their employment duties.
Quote: “The law makes him [the master] an inspector of police, a domestic magistrate, by rendering him liable for their imprudence.” (Laski, 1916-1917)

Question 28

“The Basis of Vicarious Liability” by Harold J. Laski How does Laski explain the rationale behind employers’ liability for employees’ unauthorized acts?

Answer 28

Rationale: The doctrine of vicarious liability holds employers responsible for their employees’ actions to promote careful selection and supervision of employees, thus minimizing social harm.
Example: Even if an employee disobeys direct orders, the employer may still be liable if the act falls within the scope of employment.
Quote: “If we allow the master to be careless of his servant’s torts we lose hold upon the most valuable check in the conduct of social life.” (Laski, 1916-1917)