Vicarious liability

When the defendant is liable for a tort committed by a 3rd party

Two stage test which must be satisfied

1. Relationship of employment or one “akin to”

2. Close connection test

Employee relationship

• An employer is only liable for torts of employees

• If a person is injured because of negligence of an independent contractor, they must sue the independent contractor

Employee or independent contractor?

• A worker is employed and has a contract of payment, an IC is a self employed worker

• An employee has a contract of service, an IC has a contract for service

Barclays Bank v Various Claimants

• VL doesn’t apply to independent contractors

• The test is whether the person is carrying on his own independent business

• Here, a Dr who conducted medical tests for prospective employees of Barclays was an IC

• He had a portfolio of clients, was paid a fee for each report and free to refuse Barclays requests

Tests for employee status

• Control test

• Integration test

Control test

• Part of an employment relationship is the ability to control how a job is done

• An employee is told how to do it, an IC is only told what to do

Mersey Docks and Harbour Board v Coggins and Griffiths

• Harbour Board hired their crane and driver out to stevedores for loading work

• The driver remained an employee of the board as they had the power to tell the driver how the work should be done, paid his wages and had the power to sack him

Integration test

• A worker is an employee if they’re fully integrated into the business

• If a person’s work is only an accessory to the business then they are not an employee

Economic reality (multiple) test

3 factors must exist for a worker to be classed as an employee:

1. The employee agrees to provide work or skill in return for a wage

2. The employee accepts that the work will be subject to the control of the employer

3. All considerations in the contract are consistent with there being a contract of employment

Ready Mixed Concrete v Minister of Pensions

• The workers were already lorry drivers who wore a uniform, had lorries painted in company colours and couldn’t work for anyone else

• Court decided that the drivers were independent contractors as they owned their lorries and were responsible for repairs and running costs

Viaystems Ltd v Thermal Transfer

It is possible for more than one employer to be vicariously liable. Here, the employee was working under supervision and control of 2 different employers from 2 different companies

“Akin to employment” test for non-traditional employment relationships

• A person can be vicariously liable for the acts of someone who is not technically their employee, provided that their relationship is akin to employment

• The workers accountability to D, integration into its structure and performance of duties aimed at pursuing its aims will be considered to determine akin to employment relationship

Catholic Child Welfare Society v Various Claimants

• A group of men had been abused by teachers at school for boys in care

• Teachers were members of a religious organisation who sent its members to the school wanting to teach children Christian values

• Members had contracts of employment with the school

• Court held that their relationship was akin to employment (the hierarchical structure of the institute, how members were bound by rules, ect)

• There was also a sufficiently close connection between institute’s relationship with members and the abuse carried out on their mission of education

• It was fair to impose vicarious liability

Cox v Ministry of Justice

• A prisoner helping in the canteen negligently injured the canteen manager

• Prison service was vicariously liable, the relationship between the prison service and prisoner was similar to an employer and employee

Barry Congregation of Jehovah’s Witnesses v BXB

• A church elder raped a congregation member

• He abused his friendship with the victim rather than church responsibility so J’s Witnesses organisation weren’t vicariously liable

Close connection test

The wrongful act must be closely connected with acts the tortfeasor was authorised to do so it can be fairly and properly regarded as done by them while acting in the course of employment / quasi-employment

Employee acting negligently

If an employee does their job badly, the employer can be vicariously liable for their actions which can cause damage to another

(Century Insurance v Northern Ireland Transport Board)

Century Insurance v Northern Ireland Transport Board

Driver was delivering petrol and discarded a match after lighting a cigarette. Employer was vicariously liable for the explosion resulted as the driver was doing a task he was employed to do (negligently)

Acting negligently

• If an employee is doing their job but acts against orders in how they do it, the employer can still be vicariously liable

• Limpus v London General Omnibus

Limpus v London General Omnibus

• Employer told drivers not to race each other when collecting passengers

• One driver caused an accident while racing

• Employer was vicariously liable because at the time the driver was acting for his employer’s business, him doing it in a forbidden way was irrelevant

Rose v Plenty

• A milkman used a child helper, despite instructions from his employer ti not let children ride on the milk float

• Employer was vicariously liable when child was injured

• Because the employer was benefitting from the boy’s work

Employ acting on a “frolic” of their own

An employer will not be vicariously liable for an employee causing damage or injury of another while doing something which has nothing to do with their employment or at a time/place out of work

Hilton v Thomas Burton

• Workers took an unauthorised break to a cafe in their work van

• On their return, a driver’s negligent driving killed a man in the van

• Employer wasn’t liable as workers were on a “frolic of their own”

Beard v London General Omnibus

A bus conductor turned a bus around and injured someone. Employer wasn’t liable as the conductor hadn’t been employed to drive

Fletcher v Chancery Supplies

• A shop assistant crossing the road walked into a cyclist

• He was still wearing his work uniform

• His shift had finished 45 mins ago

• No close connection between employment and negligence for it to be fair to hold D liable for this

Smith v Stages

Travelling to and from work is usually outside the course of employment but when an employee is travelling between workplaces then the employer may be vicariously liable

Criminal actions of an employee

• Offences such as a battery are considered torts of trespass to the person so an employer can be liable for the crimes of an employee

• Provided that there is a close connection between the crime and what the employee was allowed to do

Lister v Hesley Hall

A warden in a care home sexually abused boys and was convicted. Employer was vicariously liable as there was a close connection with the crime and acts the employee was told to do

Mattis v Pollock

• A bouncer inflicted serious injuries on a customer and was jailed

• The nightclub was vicariously liable as the employees acts were closely connected with his employment

Mohamud v Morrison Supermarkets

• C went to Morrisons asking to print images off a USB stick

• The worker responded with verbal abuse, followed C to his car and assaulted him

• The employee was acting within the course of employment and it was right to impose VL to achieve social justice