Vicarious liability

Jehovah’s witness v BXB 

In 1984, Mr and Mrs BXB and their children went to a Jehovah's witnesses church. As part of the religion, you are encouraged to spend more time with other witnesses. Mark Sewell was an elder and became best friends with Mrs BXB. After some years he begins having issues with alcohol. He then started to flirt with Mrs BXB. Mrs BXB tried to break things off from Mark but Mark’s Dad a higher-ranking elder encouraged her to remain supporting his son. In April they were out evangelising when The Sewell couple fought and he told Mr BXB he wanted a divorce, but BXB reminded him adultery had to have occurred for a divorce under Jehovah’s witness law. When they get back to the house together Mark raped Mrs BXB when she was trying to calm him down. He was convicted of rape and then Mrs BXB claimed against the church as she had suffered PTSD. The supreme court used this to tidy up vicarious liability. Element 1 – Tortfeasor must be employed or akin to employed by the employer. Element 2 – The tortious actions must either fall within the course of employment, or they must be sufficiently closely connected to the employment. Element 1 satisfied her but not element 2. 

Mersey Docks v Coggins and Griffiths

A crane driver was loaned from the docks to the CG ltd. While working there he dropped something on someone else while using the crane. Using the control test the harbour board was his employer as they had power to fire, pay, and train him.

Harrison Ltd v McDonald

It provides that the person is an employee if their work is fully integrated into the business.

Ready Mix concrete case

Where it isn’t clear if they were an employee or not the courts will weigh up both sides. Case was whether employees had to pay pensions for the employees or not. The factors considered were: 

 

• Vehicles were purchased from the company under hire purchase  

• Vehicles had to have company colours 

• Driver had to maintain vehicles  

• Working hours were flexible 

• Driver had to wear company uniforms 

• Pay was according to the amount of cement hauled  

The test was:  

 

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

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

3. All other considerations in the contract are consistent with there being a contract of employment rather than any other relationship. 

Features of employment/ akin to employment

Employee	Independent contractor
Has consistent hours	Inconsistent hours
Set system of pay	Paid for certain tasks
Permanent	Temporary
Uniform	No uniform
Doesn’t pay a fee to the owner	Does pay a fee
Control over employees – Not allowed to move to work for the competition	No control over the employees
Doesn’t	Pays their own tax
Can’t	Can employ other
Holiday requested	Chooses own holiday
Dress code	No dress code
Doesn’t require own liability insurance	Does require own insurance

Catholic Child Welfare society & others v Various claimants (2012) 

Monks that came in at irregular times to teach religion sexually abused students at the school.  The relationship between employee and employer was akin to employment and abuse was connected to that relationship. This set out a five-point test for akin to employment. 

 

1. The empoyer is more likely to have the means to compensate the victim than the employee and can be expected to have liability insurance  

2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer 

3. The employee’s activity is likely to be part of the business activity of the employer 

4. The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee 

5. The employee will, to a greater or lesser degree, have been under the control of the employer  

Cox v Ministry of Justice (2016) 

Prison employee was assaulted by a prisoner working with them in the kitchen. It was ruled not be necessary for employer to be carrying out a commercial activity. It is enough to be carrying on activities in furtherance of its own interests to be liable. 

Armes v Nottingham county council (2017) 

A child was abused by his foster parents. The foster carers being integral to employer’s business activity made them liable for vicarious liability for failing to protect the boy from the tort. The most important aspect to establishing akin to employment status was how integral the carers were. 

Barclays banks v Various claimants (2020) 

Doctor had been contracted in to carry out medicals on prospective employees, while doing so he sexually assaulted a number of patients. The bank was not liable as the doctor was an independent contractor. If the courts can look directly at the relationship between tortfeasor and employer and see, they are a contractor they should not use the five points. 

Mohamud v Morrisons supermarkets

C was racially abused by Morrisons employees and then assaulted by them. The SC saw as being ‘in the course of employment’ as it was part of their job to correspond with customers and it was while they were on the clock making Morrisons vicariously liable.

Poland v Parr

This is a very rare case where the tort was authorised by the employer. An example of this would be a waste disposal company telling the employee to dump toxic waste in a river. In these cases the employer will always be VL.

Rose v Plenty

The employer instructed the milkmen not to bring child helpers on their rounds. Children would come to the dairy daily asking to have a ride on the floats. One milkman let a child on who then helped with his round before being injured by the milkmans negligent driving. The dairy was still liable as the child was injured by the milkman while helping so it was in the course of employment

Twine v Beans Express

A delivery driver picked up a hitchhiker despite orders never to do this and signs on the van supporting this order. The man was then killed in the back by negligent driving. The employer was not gaining anything from this so it was not in the course of employment. Employer not VL.

Beard v London General Omnibus Co

A bus conductor drove a bus without authority and without it being part of his job and then injured someone in the course of this action. The employer was not liable as it was a ‘jolly of his own’.

Lister v Helsey Hall

A boarding school warden was arrested for sexually assaulting pupils under the guise of discipline. The HoL ruled that if a ‘close connection’ between the job and crime was present the employer would be VL. Here he did the assaults in his job, on school premises, under the guise of his authorised work so there was a close connection.

N v Chief Constable of Merseyside

TF was an off duty police officer who was called over by a first aider to take a drunk girl to the police station. Instead he took her to his house and raped her. As he was off duty just in his uniform it was not close enough and his employer wasn’t VL. It was a frolic of his own.

Hilton v Thomas Burton

Two men had taken an unauthrised break to go to a cafe but had an accident on the way back killing one of the men. His widow sued but not VL as it was a ‘frolic of his own’ he was not working.

Civil Liability Act 1978

If found liable the employer can take the compensation payments out of the tortfeasors monthly paycheck. However, this rarely occurs as people are mostly fired or quit if vicarious liability succeeds. 

Smith v Stages

The tortfeasor caused an accident while driving between places of work. As he was on the clock and doing a drive he was supposed to do D was liable for his actions.

Morrisons v Various Claimants

The tortfeasor was disciplined and in retaliation sent out sheets of payroll data online and on the news. T was prosecuted. The supermarket was sued but the claim failed as D could not be liable for the malicious acts made against the company outside their authorised employment.

Viasystems v Thermal Transfer

This is the case authority for multiple employers being liable for vicarious liability at the same time. T was supplied to 3rd D by the second D engaged by 1st D. All three were vicariously liable.