Tort Law: Vicarious Liability

Vicarious Liability

Another, usually an employer is liable to the C despite the tortfeasor being a third party (Usually an employee)

The Claimant

The person who suffers the tort

The Defendant

Is the person potentially liable for the tort which was conducted

The Tortfeasor

The person committing the tort

Historic Test for Vicarious Liability; The Salmond Test

• Tortfeasor commits unintentional Tort

• Tortfeasor is an employee

• Tort happens in course of employment

Employee-The Control Test

(Short V JW Henderson) Set out by Lord Thankerton

• Power of Selection -Choose the Employee

• Control -Tell them how to do their Job

• Dismiss/Suspension- Right to Fire/Suspend

• Pay Wages

Employee- The Integration Test

(Stevenson, Jordan, Harrison Ltd V McDonalds and Evan)
-Is the job role essential to the business or could they be easily replaced?

Employee- The Economic Reality Test

(Ready Mixed Concrete Ltd V Minister of Pensions and National Insurance)
-Do they do job for some form of pay?
-Agree to do it way employer tells them
-Elements of the contract consistent with one of service

Employee-Further Factors Considered

-Ownership of Tools
-Tax Arrangements
-Job descriptions
-Level of Independence

The Course of Employment

Something that is done as part of the Job
(Rose V Plenty)

Frolic of ones own

If it is not on the course of employment, does not benefit business
(Hilton V Thomas Burton Rhodes)

Recent Approaches: Lister Test

(Lister V Halsey Hall)

• Was the relationship between the employer and employee ‘akin to employment’ (Cox V Ministry Justice)

• Was the commission of the alleged tort ‘closely connected’ to the employment

Akin to Employment-Lord Phillips Guidance

(Catholic Welfare Society V Various Claimants)
-Employer more likely to compensate (financial)
-Act was on behalf of the employer
-Part of employers business operations
-Instructing tortfeasor created risk
-Employer had control over the tortfeasor

The Lister Test-Were the actions closely connected to the employment?

(Dubai Aluminium Company Ltd V Salaam)
-Were the actions within the field of employment-directly linked to job (Muhammed V Morrisons Supermarket)
-As a matter of social justice is it right for the employer to be liable

Barry Congregation of Jehovah's Witness V BXB

Just because an employer has more finance does not mean it will be right to find them liable

Lister Test: Employers with better financial means have to compensate

What: A problem with the lister Test is that employers with better financial means have to compensate.

Because: This is a problem because it increases the expense of insurance premiums which is likely to be distributed across customers but this is inflationary.

How: This was seen through Lord Phillips Guidelines that states that the employer has better capital and financial means to compensate (Catholic Welfare Society V Various Claimants)

Counter Argument: The wider liability of companies the more likely to get specific insurance which spreads the cost more widely.

In Barry V BXB it is established that better financial means in and of itself is not enough to compensate

Lister Test: Covers Intentional Torts and committed by those akin to employment

What: An advantage of the Lister Test is that it covers tort which is intentional and closely connected to the employment

Because: This is advantageous because by widening the pool of those that can claim means that those who have suffered intentional tort can claim which allows them to be restored to the prior position

How?: This was established in Lister V Halsey Hall Was the relationship between the employer and employee ‘akin to employment’ (Cox V Ministry Justice) Was the commission of the alleged tort ‘closely connected’ to the employment

Counter?: The Courts seen to be retreating from this position (Morrisons V Various Claimants), Widening the pool of claimants means it increases the price of insurance premiums

Salmond Test: Achieving Policy Aims

What: An advantage of The Salmond Test is that it only covers unintentional torts

Because: This is an advantage because it means a higher emphasis is placed on employers to train their staff well to avoid expensive insurance premiums and also encourages effective monitoring of staff to avoid accidents to ensure that the company is not liable- again leading to expensive insurance premiums

How: This was seen in The Salmond Test as the Tortfeasor commits unintentional tort and is an employee during the course of employment.

Counter: A disadvantage of only covering The Salmond Test means that those who suffer Intentional Torts are unable to claim under the Salmond Test therefore being unable to maintain the aim of tort law to restore the claimant to the previous position.

Salmond Test: Failing To Compensating The Claimant

What: Fails to achieve this aim as it does not cover unintentional torts or those undertaken by non-employees- unfair on claimants

Because: Fails to compensate claimants when business materials are used (sometimes on behalf of the business)

How: This is due to frolic of ones own (Hilton V Thomas Burton Rhodes) doing something not directed or beneficial to the business may prevent vicarious liability arising

Counter: Does enable some recovery when in the course of business which has been generously interpreted (Rose V Plenty)

How is Vicarious Liability fair?

Employers gain profits and so accept so should accept the risk

What is the case which shows employers gain profits and so accept so should accept the risk?

R V Plenty

Why is it seen that vicarious liability is fair?

Where an employer undertakes activities that expose others to risk due to there or their employees practices and obtain the benefit from that risk is it right that they are exposed to the liability that arises

In cases such as Rose V Plenty how is it arguably unfair?

That the employer is liable for the tort, even where they have benefited as they specifically instructed their employees not to continue with such business practices

How is Vicarious Liability seen as being unfair on employers?

In certain cases, it places them under an unrealistic expectation

What is the case which shows that it places them under an unrealistic expectation?

Muhammed V Morrisons

In both cases criminal activity and negligence was deemed to be the fault of the employer for either not screening or training their staff sufficiently what is this to place on employers?

This is an unrealistic expectation to place on employers who should not be expected to train their staff not to perform their job roles in such obviously unwanted manners

However, by holding companies liable for these torts what is it more likely that the claimant will be put back into?

Their original position (a key element of tort law). This also ensures a better loss distribution as large supermarkets or insurers are able to recover their losses from a wider pool of customers (Even if this is inflationary)

How does developments in vicarious liability protect the vulnerable?

The development of Lister V Halsey Hall has meant that those who are abused can claim for damages

What is the case which shows developments in vicarious liability protects the vulnerable?

Lister V Halsey Hall

What does it mean if those who are abused can claim for damages?

This means that those who have suffered damage, typically those who are more vulnerable, have access to remedy that they would otherwise not have access to: especially as the tortfeasor has often been imprisoned and does not have the funds to restore them to their original position

How is this unfair on the defendant company?

As the company did not encourage the tort nor wanted the tort to occur- however, they are liable for actions they had very little control over

How does the developments in vicarious liability protect the employers interest?

The employers interests are protected by the closely connected test from Lister and the exclusion of independent contractors

What is the case which shows the closely connected test from Lister and the exclusion of independent contractors?

Morrisons V Various Claimants

Barclays Bank V Various Claimants

Where a tortfeasors torts are not closely connected to their employment (Morrisons V Various Claimants) or the tortfeasor was self-employed (Barclays) what is the employer not liable for?

The damage caused this protects the employer as they cannot be said to be at fault for these actions

This is unfair to the claimant who would not have suffered the damage they had suffered if the employer had not what?

Facilitated access to the records requested the health checks. It could be argues that the employer chose to expose these claimants to the risk by not adequately screening those they choose to contract with