Vicarious liability

Vicarious Liability

Definition (AO1)

Vicarious Liability (VL) means liability for the acts of someone else. (Vicarious means - acting or suffering for another, substitute)

If there is no Tort then there is no VL

VL does not extinguish the liability of the employee who committed the tort, he remains jointly liable with his employer, for his actions.

Vicarious Liability

Exam Structure (AO2)

Where VL is relevant in a scenario:
1. Must 1st assess liability for the underlying tort, then decide if VL applies by considering -

• Was the person who committed the tort an employee?

  AND

• Was the tort committed in the course of that employement?

Was the person who committed the tort an employee

Rule (AO1)

Important to distinguish betweeen an employee and an Independent Contractor (IC) as an employer is not usually liable for ICs i.e. plumbers or electricians brought in for repairs or IT workers brought in to repair computers in a manufacturing business.

Employee

Definition (AO1)

An employee works under a contract of service (and employment contract)

Independent Contractor

Definition (AO1)

An independent contractor works under a contract for services.

Tests used to distinguish an employee from Independent contractor

Tests (AO1)

1. The control Test - Less relevant today

2. Integration Test (Proximity) - Most beneficial

3. The Economic Reality Test

-Mention all 3 tests and discuss development of them.

-Make it clear that no one factor settles the matter.

-Refer to the broader approach seen in (Cox)

-Site indicators in scenario that suggest that worker (W) is an employee or IC.

The Control Test

Definition (AO1)

“An IC is only told what to do, whilst an employee is told what to do and how to do it”

• Original approach from courts dating back to Victorian era

• Key phrase of test being “Master/Servant”

• Works for many catagories of worker, however its major fault is that it does not deal adequately with professional or highly skilled workers. A doctor employed by the NHS Trust is clearly an employee, but, given that they were employed for their expertise, they would not be told how to do their jobs

• So less relevant today as things are more complicated

The Control Test

Case (AO3)

(Mersey Docks v Coggins)

A cane driver and his crane had been hired by his employer (the harbour Board) to help shipworkers (Coggins) loading & unloading ships. The contract said Coggins was to be regarded as the temporary employer.

Held:

• Terms of the contract are not decisive (merely evidence)

• Presumtion is that it is the permanent employer who is responsible

• Who is entitled to direct and control of the relevant work?

• Who pays W? Who has power to dismiss him

• The inquiry should concentrate on the relevant negligent act, and then ask whose responsibility it was to prevent it.

Integration Test

Definition (AO1)

A worker will be an employee if - His work is fully integrated into the business

The more closely a worker is involved with the core business of the employer, the more likely he is to be an employee.

So a doctor employed by the NHS Trust is clearly central to the purpose of the NHS and is therefore an employee.

Integration Test - Limits

Definition (AO1)

It is not alwayscertain who is integral to the employer’s business and who is not,or even what the employer’s business is:

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

Integration Test - Exam hints

(AO2)

• Does W do team building excercises

• A they part of the structure of the business

• Do people report to them

Economic Reality Test

Definition (AO1)

This test considers various factors which may indicate employment or self-employment.

3 Conditions have to be met before and employment relationship is identified:

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

2. Mutuality of obligation - The employer agrees to provide own work or skill and the employer is required to provide and pay for that work. (Does W decicde when and how much work to do?) - Is there an obligation for W to turn up and obligation for employer to provide work?

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

This is because the courts recognise that a single test of employment status is not satisfactory and may produce confusing results.

Economic Reality Test - Factors

(AO2)

• The employee agrees to provide work or skill in return for a wage - Consider is it a one off payment or regular wages

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

• Whether the worker pays income tax and national insurance contributions as an employee or as a self-employed person

• Who has provided the tools or equipment used

• Whether the worker has the ability to delegate his work to another without permission. - Do they have independence in their work in deciding when and how to do it.

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

Economic Reality Test

Case (AO3)

(Ready Mixed Concrete [South East] Ltd v Minister of Pensions and National Insurance)

Factors used to determine employment or IC status of workers:

• Drivers drove vehicles in company colours and showing a logo

• Drivers bought the vehicles on hire-purchase from the company

• They mainained the vehicles themselves

• They had flexible working hours which were subject to an annual minimum rate according to the amount of concrete hauled.

Concluded that the drivers were not employees.

Relationship ‘Akin’ to employment

Definition (AO1)

Q has expanded to ask whether the worker is in a relationship akin to employment.

“Looks like employment”

• Gives more leniancy

Relationship ‘Akin’ to employment - Criteria (5)

Factors (AO2)

1. The employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability

2. The activity will have been committed as a result of activity being teaken by W on behalf of the employer

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

4. The employer by employing W to carry out the activity will have created the risk of the act being committed by W

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

Relationship ‘Akin’ to employment

Examples (AO2)

• A religious order and its members

  (Catholic Child Welfare Society v Christian Brothers)

• A prisoner workin in the prison kitchen and the prison service

  (Cox v Ministry of Justice)

• Foster Parents and a local authority

  (Armes v Nottinghamshire County Council)

Relationship ‘Akin’ to employment

Case (AO3)

(Cox v Ministry of Justice)

Mrs Cox (C) was the catering manager at a prison. She supervised the four members of staff and 20 prisoners who worked there. One prisoner was carrying 2 sacks but lost his balance and dropped a sack onto Cox’s back.

Prison was seen as employer of prisoner as the prisoners could be paid, and if they didn’t work then the prison would have incurred additional costs in employing staff and engaging contractors. This meant that the relation between the prisoner and prison was akin to the relationship of employment.

The prison also created the risk.

Dual Vicarious Liability

Rule (AO1) and Case (AO3)

More than one employer may be vicariously liable.

(Viasystems Ltd v Themal Transfer Ltd)

Tort committed in the course of employment

Rules (AO1)

An employer is not liable for all torts committed by an employee, only those which take place during the course of employment

Must consider:

1. Was the act expressly authorised by the employer (Rare)

2. Was the authorised act carried out in a wrongful way, even if that manner was specifically prohibited

3. Was it an unathorised act.

(Mention which situation is relevant in the exam Q)

Act expressly authorised by the employer

Rule (AO1)

An employee is acting within the course of his employment if he is carrying out an act authorised by his employer and if that act amounts to a tort then the employer is vicariously liable for it.

Authorised act carried out in a wrongful way, even if that manner was specifically prohibited

Definition (AO1)

An employer may be VL if the employee carried out an authorised act even if it was in a manner that was specifically prohibited.

Side note - The employer will generally only be VL if the phrobited manner ‘benefited’ the employer.

Authorised act carried out in a wrongful way, even if that manner was specifically prohibited

Case (AO3)

(Limpus v London General Omnibus Co) - Benefit employer

A bus driver was authorised to drive buses but was forbidden to race other buses, but he did so anyway.

Emplyer was found liable for resulting damage since it was a wrongful way (racing) of doing something authorised (driving)

(Twine v Beans Express) - No benefit

Driver picked up a hitchhiker in direct contravention of his employer’s instructions due to the employee’s tort.

Held that there was no VL as no benefit to employer.

Authorised act carried out in a wrongful way, even if that manner was specifically prohibited - Road traffic accidents

Rule (AO1)

Journeys to and from work are generally outside the course of employment, but road journeys made during work hours will normally be covered.

However if the journey time is paid (during work hours) it could then come within the scope of their employment.

Authorised act carried out in a wrongful way, even if that manner was specifically prohibited - Road traffic accidents

Case (AO3)

(Smith v Stages)

Employer was VL since employee ‘had’ to come back and the reason they went away was due to employer.

Employee was being payed but even if not then the employer would still be connected to the employee.

Authorised act carried out in a wrongful way, even if that manner was specifically prohibited - Deviation from route

Rule (AO1)

Whether the driver remains in the course of employment depends on the degree of deviation and whether he remains on his employer’s business or is setting about something quite different - going on a “frolic of his own”

A lunch break will usually be VL.

Authorised act carried out in a wrongful way, even if that manner was specifically prohibited - Deviation from route

Case (AO3)

Unauthorised Act involving abuse

Definition (AO1)

Tailored rule - Were the acts of the employee is so closey connected with his employment that it is fair and just to hold the employer liable.

Unauthorised Act involving abuse

Case (AO3)

(Lister v Hesley Hall Ltd)

Warden of a children’s care home, who was employed by D, abused the boys in his care.

Held that the employee’s torts were so closely connected with his job that it was fair and just to hold the employer VL

Unauthorised Acts

Definition (AO1)

Where the employees conduct is not permitted at all.

Is the do on a ‘frolic’ of their own? - An employer may avoid liability if the employee is on a ‘frolic of their own’, this means if the employee causes injury or damage to another, entirely outside the area or time of their work, the employer will not be liable.

Unauthorised Acts

Case (AO3)

(Morrisons v Various Claimants) - Not VL

An agrieved Morrisons employee, who retaliated against a minor disciplinary sanction by posting the personal data (including bank details, addresses and salary information) of almost 100,00 Morrisons employees online.

Held that:

• The general requirement to establish employer VL is that the “wrongful conduct must be so closely connected with acts the employee was authorised to do that… it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment”

  • Whether the acts of the employee were within the field of activities whcih the employee was authoridsed to perform and

  • whether there was sufficient connection between the role and the wrongful conduct to make the employer liable.

• Motive (why the employee acted wrongfully) can be highly relevant - If the employee is “engaged in an independent personal venture” & is engaged in pursuing only his own interests, rather than the employer’s then employer will not usually be VL.

VL Exam Structure

(AO2)

1. Has W committed a tort (Negligence usually)

2. Is W an ‘employee’ (or akin to)

3. Was W acting in the course of his ‘employement