vicarious liability

Principle

If a claimant can show that a tort has been committed by an employee in the course of his employment, then the claimant can sue the employer. The employer is liable jointly with the employee.

Three essential elements of vicarious liabilty

1. The worker is an employee (not an independent contractor)

2. The employee committed a tort

3. The employee's tort was committed in the course of employment

An employee is employed under a

Contract of service

An employee provides services for

One person - their employer

An employee works

For the business interest of their employer.

Test for whether worker is an employee - Ready Mixed Concrete 'multiple test'

1. Provides work in the performance of a service of the employer for remuneration

2. Agrees, expressly or impliedly, that in the performance of that service they will be subject to another person's control

3. Other provisions of the contract are consistent with a contract of service.

The course of employment - Lister v Hesley Hall - employer will be liable for:

1. Wrongful acts it has authorised; and

2. Wrongful/unauthorised modes of carrying out authorised acts

Wrongful acts it has authorised - Poland v Parr

Off-duty employee who pushed thief away to protect employer's goods deemed to have been impliedly authorised by employer

Wrongful acts it has authorised - Warren v Henleys Ltd

Employee punching customer in face after personal insult not in the course of employment

Wrongful/unauthorised modes of carrying out authorised acts - Century Insurance v NI Road Transport Board

Oil-tanker driver smoking while unloading tank was doing an authorised act in unauthorised way

Wrongful/unauthorised modes of carrying out authorised acts - Harrison v Michelin Tyre Co

Employee larking about with wheelbarrow who then knocked someone over was doing an authorised act in unauthorised way.

Intentional torts committed purely for employee's benefit - employer will be liable if

1. Tort stemmed from an act authorised by employer (Lloyd v Grace);

2. Tort was closely connected with work employee was employed to do (Lister v Hesley Hall)

Intentional torts - Maga v Birmingham Archdiocese of the Roman Catholic Church

Interpreted Lister v Hesley Hall widely. Church was liable for priest's abuse, because although he had not met the boy in his role, he always wore his robes, and so was never really 'off-duty'

Torts expressly prohibited by employer - Rose v Plenty

Where the act is done to further the employer's business, it may be deemed as done in the course of employment

Torts expressly prohibited by employer - Twine v Bean's Express

Where act is prohibited, and not done to further employer's business, no vicarious liability

Frolic cases - Joel v Morrison

If an employee is acting outside his course of employment when he commits a tort, he is often said to be on 'a frolic of his own'

Frolic cases - Hilton v Thomas Burton - a question of degree. Consider:

1. Extent of deviation

2. Purpose of the deviation

Frolic cases - Hilton v Thomas Burton - facts:

Van driver set off in opposite direction as his route to visit a friend, so was on a frolic of his own.

Frolic cases - Harvey v R G O'Dell Ltd

Employee took 3 mile detour to get lunch - this was not a frolic

Remedies - Lister v Romford Ice & Cold Storage Co, Civil Liability (Contribution) Act 1978

Employers have right to claim a full indemnity from employee who committed tort. This right is in the CL(C)A 1978.

Remedies - why do employers not seek compensation from employees?

Because it would sour labour relations. General agreement that employers will not pursue claims against employees unless there was evidence of collusion or wilful misconduct.