vicarious liability

The Right Relationship with D: 

Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319: Monks worked in residential sch → young boys sexually assaulted → they were not paid directly → was the institute vicariously liable

1. held: sch is liable for the teachers

2. principle:

   1. test for VL:

      1. relationship bw tortfeasor and employed which is capable of giving rise to VL (incl akin to contract relations)

      2. sufficiently close connection bw the tort and that relationship

   2. five factors which would make it fair, just and reasonable to impose vicarious liability:

      1. The defendant is more likely to have the resources to compensate the claimant than the primary tortfeasor;

      2. The tort was caused by activities done on the defendant’s behalf;

      3. The tortfeasor is likely a part of the defendant’s business activities;

      4. The defendant created the risk of the tort by employing the primary tortfeasor;

      5. The defendant is likely to have some control over the primary tortfeasor.

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*Trustees of the Barry Congregation of Jehovah's Witnesses v BXB

facts: C and her husband were members of JW → became friends with an elder (people of authority in JW) → another elder asked C and her hsuband to support D1 through a difficult tome → D1 was consistently inapproriate towards C but C remained friends due to his position → one day they were evangelising and then went to D1’s house → D1’s wife asked C to speak to D1 in a back room → D1 raped her→ C sufferred from psych injury

held: D2 (JW) Not vicariously liable —relation skin to employment tho

principle:

1. test for VL:

   1. establish a tort: D1 has committed a tort.

   2. relationship bw D1 & D2: D1 is D2’s employee or was in a relationship with D2 which is sufficiently similar to an employment relationship.

   3. timing/link: D1’s tort was committed in the course of his employment with D2 or was sufficiently closely connected to the task D1 was carrying out for D2.

2. D1-D2’s relationship akin to employment:

   1. Elders performed work integral to the organisation’s purposes, operated within a hierarchical structure, were appointed and removable through organisational processes, and carried out assigned religious functions. This relationship was sufficiently similar to employment.—parallel drawn with CCWS

   2. no payment/renumeration does not matter

Both stages must be addressed and satisfied.

X v The Lord Advocate: no VL for judges—sep of judiciary (not imp to know; scottish case)

Independent contractors

1. Barclays bank v various claimants

   1. facts: Barclays bank hired an independent doctor to carry out tests → he could refuse work if he wanted to → new employees were required to have the health check in order to begin work → checkups took place in the doctor’s home → he assaulted them → C sued bank for VL

   2. held: no vl

   3. principle: D will not be liable for the acts of an independent contractor acting in business on their own account → no need to consider the 5 critirea in CCWS

2. Market Investigations Ltd v Social Security Minister [1969] 2 QB 173

   1. facts: C had freedom to work for others → flexibility as to her hrs of work so long as her work was complete by the deadline → company had control over the way in which the work was done

   2. held: employment

   3. principle: the question to be asked is: ‘“Is the person who has engaged himself to perform these services performing them as a person in business on his own account?” 

      1. yes= service contract

      2. no = employee

         
         

can multiple people be liable?

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd:

1. facts: C hired D to install ducting in a factory → D1 engaged D2 as a subcontractor → D2 was employed as a supervisor, who employed a plumber and his friend, who put their foot through the air conditioning system and caused a flood.

2. held: dual VL possible

3. principle:

   1. fairness and practical responsibility pointed toward joint responsibility: each defendant bore a sufficient degree of control and engagement in the work to justify dual vicarious liability.

akin to employment?

1. The Trustees of the Portsmouth RC Diocesan Trust v JGE [2012] EWCA Civ 938: D argued that the priest was not in an employment relationship with the local church → the priests do not have a contract and are unpaid → once a bishop is sent to the parish, they have little control over the priest

   1. held: a priest was in a relationship akin to employment

   2. principle: The relationship between the defendant and the tortfeasor should be so close to a relationship of employer/employee that, for vicarious liability purposes, it can fairly be said to be akin to employment.

      1. priests carry out the church’s purpose = employed

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2. *Cox v Ministry of Justice

   1. facts: D1 was a prisoner → while lifting sacks of rice as a part of his chores in prison, he spilled some → his supervisor slipped and suffered injury → C sued D2 (prison authority) for VL

   2. held: Prison authority is vicariously liable

   3. principle:

      1. harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit.

      2. and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.

      3. also: Lord Reed tells us that we do look at the five factors from CCWS, but they are not all equally significant.

         
         

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3. Armes v Nottinghamshire County Council

   1. facts: C was a foster kid who suffered sexual and physical abuse as a kid → C was in foster parent’s care through the local authority’s actions → C sued local authority for being vicariously liable

   2. held: local authority is vicariously liable

   3. principle: vicarious liability is of relevance when

      1. principal tortfeasor cannot be found/not worth suing

      2. the person sought to be declared vicariously liable is able to compensate the victim

      3. contrary case: DJ v Barnsley Metropolitan Borough Council

         1. the foster parents CHOSE to foster this kid--does it change armes?
            1. held: no, this doesnt change the fact that the relationship is akin to employment bw the council and the kid

sufficiently closely connected

1. bxb: the correct test asks whether wrongful act was so closely connected with authorised acts that it can fairly and properly be regarded as committed in the course of quasi-employment.

   1. not sufficiently closely connected —not during any religious service/activity but at his home

      1. immediate context was personal friendship and emotional support, not a pastoral or organisational setting.

      2. distinguished from child sexual assault cases—in those cases tortfeasors had authority, proximity and opportunity during duties—here it was sudden and unconnected to any religious duty

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2. *Lister v Hesley Hall Ltd

   1. facts: C were children in boarding house attached to a sch → Warden employed by D ran the house and sexually abused C over a period of time

   2. held: vl present

   3. principle:  question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.

      1. here, they were because D gave the warden responsibility of full care and supervision

      2. employment created a relationship that placed the warden in authority over C and allowed the abuse to happen

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3. Mohamud v WM Morrison Supermarkets Plc

   1. facts: c parked his car in the morrisons parking → asked person behind counter to print smth → D1 said nO and was racist → C left but then D1 ran after him and carried out a racially motivated viokent attack → C sued d2 (employer—morrison)

   2. held: morrisons liable

      1. "unbroken sequence of events" and was "purporting to act about his employer's business" when he ordered the claimant to stay away from the premises.

      2. metaphorical uniform argument

   3. principle: the court should consider 2 matters—

      1. what functions or ‘field of activities’ have been entrusted upon the employee—what was the nature of his job?

      2. whether there was sufficient connection b/w the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable

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4. Rose v Plenty [1976] 1 WLR 141: It is not enough for an employer to exempt liability by saying “do not commit torts”.

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5. *WM Morrison Supermarkets plc v Various Claimants —applies mohumad v morrison

   1. facts: C’s personal data was leaked by an employee because they were just petty

   2. held: no vl—lacks sufficiently close connection

   3. principle:

      1. It is relevant to whether there is a close enough connection that there is an unbroken sequence of events leading from work activities to the tort—ie., unbroken connection between the tortfeasor’s capacity (as granted by their relationship with the employer) and the tort.

      2. tort was not a part of his field of activities

      3. A tortfeasor’s motive is relevant to vicarious liability, if it indicates the tortfeasor was acting in a purely personal capacity

      4. causal connection—insufficient

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Mattis v Pollock [2003] 1 WLR 2158:

1. facts: C attended a club owned by D → D had employed Doorman who was encouraged to use force if necessary → incident in club escalated and C’s friends were ejected → doorman left premises, with a knife and stabbed C in the back → C became paraplegic

2. held: D was vicariously liable

3. principle:

   1. D had employed doorman w instructions to use force when needed—it was within his role

   2. The fact an assault occurs outside working hours or the workplace does not automatically preclude liability if the wrongdoing flows from the employment context.

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MXX v A Secondary School [2023] EWCA Civ 99

non delegable duties

*Woodland v Swimming Teachers Association and Others

1. facts: C was 10 years old → swimming lessons were held at a public pool →delegation of instruction and lifeguarding to an independent contractor who supplied a swim teacher and lifeguard → C was found hanging vertically during a lesson → got hypoxic brain injury

2. held: non delegable duty owed

3. principle:

   1. Such a duty arises where the claimant is

      1. The claimant is in a relationship of dependence on the defendant;

      2. That relationship existed prior to the tort and was independent of the tort;

      3. As part of the relationship, the claimant was under the defendant’s custody or care, and the defendant assumed responsibility to protect the claimant from harm;

      4. The claimant had no control over how the defendant protected them;

      5. The defendant delegated the exercise of their responsibility to protect the claimant to a third-party;

      6. The third-party was negligent.

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*Armes v Nottinghamshire County Council: the claimant must first show that the defendant was personally under a relevant duty. They must then show that this duty was delegated