Vicarious liability

What is Vicarious Liability?

Imposing a duty on someone other than the tortfeasor

What is meant by a tortfeasor and what is the term given to them which refers to their no/ little amount of money they can give to compensate the claimant?

The person who committed the tort e.g. Negligence

“A man of Straw”

What are 3 elements of Vicarious Liabaility?

1. Was a tort committed?

2. Was the tortfeasor an employee? (Or in a relationship which is akin to employment)

3. Was the Employee acting in the Course of employment when the tort was committed? (Or was there a close connection between the act he committed and the acts he was employed to do)

When establishing the first element of a tort, and it is negligence, how would you address this?

Establish the duty of care, The breach of duty and the damage in brief detail (Do NOT go into case law as Vicarious Liability is a separate topic)

Where are the 2 types of areas where Vicarious liability can arise from?

• Employers/ Employees

• Relationships sufficiently akin to employment Employer/employee

Why are companies unable to be vicariously liable over Independent contractors?

They are self employed and therefore not classed as employees

Which case set out the difference between Independent Contractors and Employees?

Barclays V Various Claimants

• A Qualified doctor conducted a medical examination on many employees for Barclays bank

• He received a fee per examination

• The doctor received more than 100 sexual assault allegations from the employees against him during the examinations

• Barclay’s was found not liable as it was decided that the qualified doctor was an independent contractor and therefore not an employee of Barclay’s bank (No relationship of employment)

What are the 4 tests for testing whether an individual is an employee or an Independent contractor?

• Control Test

• Integration Test

• Economic Reality

• Multiple Test

What does the control test assess?

How much control does the employer exercise over the individual?

What does the integration test assess?

Is the individual’s work fully integrated into the business that they should be considered an employee?

What does the economic reality test assess?

• Name 4 financial factors

A balance of financial factors to assess whether the individual is an employee or an independent contractor. Factors include:

• How is the tortfeasor paid?

• Who pays Tax and National insurance?

• Who decided working hours and sick/ holiday pay?

• Who provided equipment and materials?

What does the multiple test assess?

A person should be considered an employee if:

1. The person agrees to provide work and skill in return of payment from the employer

2. The person agrees to be subject to the employer’s control

3. That the other terms of the service contract are consistent (employment contract)

Which key case helped to establish the multiple test?

Ready Mixed Concrete V Minister of Pensions

• The case was to resolve the issue of if the drivers of Ready Mixed concrete were employees or ICs

• Factors such as the vehicle being painted in company colours, Driving the vehicle under the compliance of the company’s rules suggested they were employees

• Factors such as the driver purchasing the vehicle, driving the vehicle and fuel and other requirements being the drivers’ responsibility suggested he was an IC

• Decided the drivers were NOT employees

An organisation may be Vicariously Liable for the acts of workers who are not their employees (Employment like relationship). Give 5 examples of this type of relationship?

• Casual Workers

• Agency Staff

• Worker’s cooperatives

• Outworkers

• Trainees

Which is the leading case which describes how employment can be Akin to employment? (employment like relationship)

Cox V Ministry of Justice

• An assault by a prisoner on a catering manager employed at the prison occurred

• The government department responsible was sued

• Decided that the organisation does not have to be carrying out commercial activity or making a profit for the individual to be an employee

• It was enough that the organisation carried out activities in their own interest and therefore the department was liable for the prisoner’s actions

What are the 2 questions the court will ask to assess whether an individual has an employment like relationship while using the legal principle of Cox V Ministry of Justice?

1. Is the individual an integral part of the organisation?

2. Did D create the risk by assigning that role to that individual?

How does the case of Christian Bros show a relationship “akin to employment”?

Christian Bros

• Hundreds of claimants alleged sexual abuse at a school

• The Abusers were members of a religious teaching order.

• The teaching order was not the formal employer, but it assigned Brothers to work there.

• The court held there was a relationship akin to employment" and there was a close connection between their role and the abuse.

• Religious teaching order was vicariously liable, even though it wasn’t a direct employer.

If the individual was proved to be an employee, what are the 2 types of outcomes an employee can have towards the tort which is assessed by the Salmond Test?

• In the Course of Employment

  OR

• A Frolic of His own

Which case did “a frolic of his own” come from?

Joel V Morrison

“A Servant must be engaged in the master’s business, not a frolic of his own”

What are the 2 ways an employee can commit a tort in the course of employment?

• A Wrongful Act expressly authorised by the employer

• Authorised Act carried out in an unauthorised/wrongful manner (Expressly forbidden by employer)

If an employee is found to be “in a frolic of his own”, will the employer be liable?

No, the employer will NOT be Vicariously liable for the employee

What is a case example where a wrongful act is expressly authorised by the employer?

Poland V Parr

• Employee assaulted a boy who tried to steal from his employer’s wagon because the employer expressed to protect it all costs

• Was found to be in the course of employment

What is a case example which shows disobedient employees, who carried out an authorised act in an unauthorised manner?

Which case can be used to contrast this?

• Limpus V London General Omnibus Co

  • Bus driver instructed not to race buses, but did anyway

  • Was found the be in the course of employment

Can be contrasted with…

• Beard V London General Omnibus Co

  • Bus conductor drove the bus and injured the claimant

  • Found to be in a frolic of his own

What is a case example which shows negligent employees, who carried out an authorised act in an unauthorised manner?

Century Insurance Co V Northern Ireland Transport Board

• Tanker driver employed to deliver petrol

• He lit a cigarette and caused an explosion

• Found to be in the course of employment

Which 2 cases can be contrasted to show the “course of employment” V “Frolic of his own” in terms of Instructions expressed from employers to not do an act?

• Rose V Plenty

  • Milkman used a 13 year old boy to help deliver milk despite instructions not to

  • Boy was injured

  • Found to be in course of employment

Can be contrasted with…

• Twine V Beans Express

  • Hitchhiker killed through negligence of a driver who had been forbidden to give lifts

  • Found to be in a frolic of his own

Which case was there a frolic of their own, where the employees were working on a site and decided to take an unauthorised break and drove to a café and had an accident on the way?

Hilton V Thomas Burton

Which case sets out the principle that more than one employer can be vicariously liable for the actions of an employee (Dual liability)

Viasystems

• Negligent act of D caused flooding which made 2 companies liable for his act

Traditionally, if an employee commits a crime/ intentional tort while at work, will that be seen as “in course of employment” or a “frolic of his own”?

It will most likely be seen as a frolic of their own

Which case made employers more likely to be Vicariously liable for crimes committed by their employees? and which was the legal principle made from it

Lister V Helsey Hall

• Warden of a school with emotional difficulties found to be sexually assaulting some of the children

• Employer held Vicariously liable for the warden’s crime due to there being a sufficiently close connection between the acts of employee and the employment

What is the name give to the principle of a “sufficiently close connection between the job and the Act”?

The Close Connection Test

What was a case example which followed the close connection test from Lister V Helsey Hall?

Mattis V Pollock

• D Employed as an unlicensed doorman, who was refused entry from one of the CLMT’s friends house

• The CLMT’s friend got violent and struck the doorman multiple times

• The doorman went to the apartment, got a knife and committed GBH on the claimant

• Held the GBH to be sufficiently close to the job employed to do

Which case did the Close Connection test be reformed by the Supreme Court?

Mohamud V Morrison Supermarkets

• Employee at a petrol station assaulted a customer, causing serious injuries

• SC considered that the employee’s job and job were sufficiently similar to the assault as he was in working hours and in the work place and therefore was found to be in the Course of Employment

How did the Supreme Court reform the close connections test?(What are the 2 questions)

1. What is the nature of the job entrusted to the tortfeasor?

2. Is there a sufficient connection between the tortfeasor’s employment and his/her wrongful conduct to make it right for D to be liable?

What happened in the case of N V Chief Constable of West Merseyside?

N V Chief Constable of West Merseyside?

• High Court held that the Chief Constable was not vicariously liable for a sexual assault carried out by a policeman

• Found to be in a "on a frolic of his own".

• The police owe no specific duty of care to potential victims and the actions of the policeman were not closely connected to his employment

What happened in the case of Morrisons V Various Claimants?

Morrisons V Various Claimants

• SC held that morrisons were not vicariously liable for data breaches that had been committed by a rogue employee

• The employee’s motive is relevant to deciding whether his wrongdoing was for the employer’s business

• A wrongdoing motivated by a desire to harm an employer is not within the course of employment- Found to be “in a frolic of his own”