Vicarious liability

What is vicarious liability?

• Not an individual tort

• Where another party is held liable for the torts of the tortfeasor, usually where an employer is held liable for the tortious acts of an employee

What are the 3 points that must be satisfied?

1. The tortfeasor must have committed the tort

2. The tortfeasor must be an employee (not an independent contractor

3. The tort must take place during the course of employment 

Why does vicarious liability exist?

• Employers are responsible for hiring, training, supervising & firing staff

• Employers have a great degree of control over the employee’s actions

• Employers are in a better financial position to take the loss

• Employers take benefit from the work done

How is employability tested?

• Used to be the control test 

• Is now the economic reality test 

What the conditions of the economic reality test?

• Agrees to provide work/skill in return for a regular wage

• Expressly/impliedly accepts the work will be subject to the control of the employer 

• Contract of employment 

• Tax, pension & NI contributions

• Flexibility in working hours 

• Ownership of tools/equipment 

Ready mixed concrete v Minister of Pensions & NI

• Driver drove vehicle in company’s logo but their hours were very flexible

• Deemed to be self-employed so had to pay for NI contributions

Carmichael v National Power

Tour guides were employed on a casual basis but weren’t considered employees as there was no contract of employment

JGE v Trustees of the Portsmouth RC Diocesan Trust

• C alleged she was sexually abused as young girl by one of the priests

• Church argued he wasn’t an employee but relationship was sufficiently akin to one of employment

• Church was VL

Cox v Ministry of Justice

• C was injured by a prisoner who was helping in the kitchen

• Relationship between prisoner & prison service was sufficiently akin to employment so prison was VL

Barclays Bank v Various Claimants 

• BB paid a doctor to do medical inspections however over 100 of those accused him of sexual assault

• BB weren’t VL as the doctor wasn’t an employee as he wasn’t paid a regular work & could refuse the work

Armes v Nottingham County Council

Council was VL for the abuse of foster carers as they had a sigificant degree of control over them

What is considered under the course of employment?

• Authorised acts 

• Acts done in an unauthorised manner

• Negligently carried out work

Poland v Parr

• Tortfeasor hit boy who was stealing sugar

• Employer was VL for actions of employee who was authorised to protect the property 

Limpus v London General Omnibus Company

• Driver was authorised to drive the bus but not in the manner they did (racing)

• Employer was VL

Rose v Plenty

• Milkman was carrying out his work in an unauthroised manner by using a child helper 

• Employer was VL when the boy was injured 

Century Insurance v NI Road Transport Board

• Petrol tanker driver was making a delivery when he lit a match & discarded it, causing a fire 

• Employer was VL as employee was carrying out authorised work negligently 

What is considered not within the course of employment?

• Expressly prohibited acts

• Employee on a ‘frolic of his own’

• Activities carried out outside the scope of employment 

Beard v London Omnibus Co

• Bus conductor drove the bus despite express orders that prohibited him from doing so

• Employee was held liable

Hilton v Thomas Burton

• Workmen took an unauthorised break where they crashed their van & killed someone

• Employer wasn’t VL as employees were on a ‘frolic of one’s own’

Smith v Stages

• Employee was driving back to work where he crashed & caused an accident 

• Employer was VL as employee was in the course of employment as he was being paid for his travelling time 

Twine v Beans Express

• Hitchhiker was injured through negligence of a driver who’d been prohibited from giving lifts

• Employers weren’t VL unlike Rose v Plenty as they weren’t benefiting from the lift

What are the 3 conditions of VL in criminal acts?

• Lister v Hedley Hall

• Must be an inherent risk

• Not guarded against risk

• Close connection between the crime & what the employee is employed to do

Lister v Hedley Hall

• 3 Cs were sexually abused by the school warden

• Employer (school) was VL as crime was carried out in school premises so ‘close connection’

Mohamud v Morrisons

• Employee assaulted a customer at the petrol station

• Employer VL as was a ‘close connection’ between what he did & his employment 

N v CC of Merseyside Police

• After he’d gone off duty, D in uniform offered to take a woman to the station where he raped her

• Employer wasn’t VL as there was no ‘close connection’

Morissons v Various Cs

• D leaked the payroll data to various newspapers & websites 

  • Employer wasn’t VL`````¬¬¬`

Barry v BXB

• Member of the church was doing door to door visits & later sexually assaulted another church member 

• Court said he could be considered an employee but at the time he wasn’t working for the church so employer wasn’t VL