Vicarious Liability

Vicarious liability

Vicarious liability is where a third person has legal responsibility for the unlawful actions of another, e.g in the workplace. The elements are:

• A tort has been committed by another

• The relationship between the two persons makes it proper for the law to make one party pay for the fault of the other (employee relationship)

• There must be a connection between this relationship and the tort (in the course of employment)

Tort

The claimant must first prove the elements of whichever tort is alleged Negligence is the most common tort giving rise to vicarious liability. Offencemployee relationshipes against the person are also torts of trespass to the person

Employee relationship

There must be a relationship between the Defendant and the tortfeasor.

• an employer is only liable for torts committed by employees

• If the tort is from a independent contractor, they must sue the contractor

Barclays bank v Various Claimants

The supreme court confirmed that VL does not apply to acts of independent contractors. A doctor conducted medical assessments for prospective employees of Barclays Bank was an independent contractor, and therefore Barclays was not liable for his actions

Control test

This test was based on the idea that a characteristic of an employment relationship is the ability to control the way a job was done. An employee is told what to do and how to do it.

Mersey Docks & Harbour board v Coggins and Griffiths

The harbour board hired their crane and driver out to stevedores for loading work. The driver remained the employee of the board as they had the power to tell the driver the way in which his work should be done, and paid his wages.

Integration test

This test focused on the extent to which the work was integrated into a business.

Stevenson, Jordan and Harrison v MacDonald and Evan

If a person’s work is only an accessory to the business that person is not an employee.

Economic reality test

The courts decided that neither the control or integration tests are entirely satisfactory, therefore more factors are considered:

• Who bears the chance of profit

• Is the worker paid a salary or per job

• Does the worker pay income tax and NI

• does the contract describe the worker as an employee or not

• Independence in doing the job

• The ownership of any tools

Ready Mixed Concrete v Minister of pensions

The workers were lorry drivers. they wore a uniform, and had to follow instructions but were considered contractors as they owned their lorries and were responsible for upkeep. Court said 3 factors must exist:

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 other considerations in the contract are consistent with an employment contract

Viaystems Ltd v Thermal Transfer

It is possible for more than one employer to be vicariously liable, where the negligent employee was working under supervision and control of employees of two different companies

Non-Traditional employment relationship

Courts recently have held that a person can be held vicariously liable for the acts of someone who is not technically their employee, provided the relationship between them is sufficiently akin or analogous to employment.

Catholic Child Welfare society v Various Claimants (Facts)

A group of men had been abused by their teachers at a school for boys in care. The teachers were members of a religious organisation that sent members out to schools to teach children Christian values. the members had contracts of employment with the school. the court had to decide whether the institute should share responsibility.

Catholic Child Welfare society v Various Claimants - (Law)

• Whilst not arising under a formal contract of employment, the institutes relationship with its members was sufficiently akin to one of employment

• There was a sufficiently close connection between institutes relationship with its members, and the sexual abuse its members carried out.

Cox v Ministry of Justice

A prisoner helping in the canteen negligently injured the catering manager. The prison service was liable because the relationship between the prison service and prisoner was similar to that of employer and employee, as the prison benefited from the prisoners activities.

In the course of employment

There must be a sufficiently close connection between the employment relationship and the wrongdoing of the tortfeasor so that it is fair and just to hold the employer liable

Century Insurance v Northern Ireland Transport Board

A driver was delivering petrol to a petrol station and discarded a match when he lit a cigarette. the employer was liable for the resulting explosion .If an employee does his or her job badly, the employer can be vicariously liable for their actions which cause damage to another.

Acting against order (Course of employment)

If an employee is doing his or her job but acts against order in the way they do it, the employer can be vicariously liable. However if it is outside his employment an employer is not vicariously liable. Some actions are held to be in the course of employment as they further the employers business.

Limpus v London General Omnibus

The employer instructed its bus drivers not to race other drivers. One driver caused an accident when racing. The employer was vicariously liable because at the time the driver was acting for his employers business

Beard v London General Omnibus

A conductor turned a bus around and injured a member of the public. The employer wasn’t liable as the conductor was not employed to drive

Rose v Plenty

A milkman used a child helper despite instructions to not allow children to ride the milk float. The employer was liable when the child was injured as they were benefiting from the work

Twine v Beans Express

C’s husband was killed through the negligence of a delivery driver who had been forbidden to give lifts. The employers were not liable as the employer was doing an unauthorised act and the employers gained no benefit

Employee acting on a “frolic” of their own

if an employee causes injury or damage to another while doing something which has nothing to do with their employment, or at a time or place outside of work, the employer won’t be liable

Hilton v Thomas Burton

Workers took an unauthorised break and went to a cafe in the works van. On the way back, the driver’s negligent driving killed one of the men travelling in the van. The employer was not liable since the workers were “on a frolic of their own”.

Fletcher v Chancery Supplies

A shop assistant was crossing the road opposite his shop when he negligently walked into the path of a cyclist. He was still wearing a work polo 45 minutes after is shift. there was no sufficiently close connection between the employment and the negligence for it to be fair, just and reasonable.

Smith v Stages

The employee was driving back to his place of work after working elsewhere and caused an accident. The employer was liable here because the Court decided that he was acting in the course of employment as he was being paid during travelling time

Criminal actions of an employee

In recent cases the courts have been willing to find employers liable for the crimes of an employee if there is a close connection between the crime and what the employee was employed to do

Lister v Hesley Hall

A warden in a care home sexually abused boys and was convicted. The employer was liable as the acts of the employee were so closely connected with his employment that it was fair and just.

Mattis v Pollock

A bouncer inflicted serious injuries on a customer and was jailed for criminal offences. The nightclub were vicariously liable for the bouncer’s actions as he was encouraged to use force.

Mohamud v Morrison Supermarkets

C went to a morrisons petrol station to ask if he could print off some images from a USB stick. The worker responded with verbal abuse followed C to his car and assaulted him. The Supreme court considered that the employee was acting in the course of employment, as it was closely connected to what he was required to do (deal with customers)