Vicarious Liability Notes

Vicarious Liability

Overview

• Vicarious liability (VL) differs from Employer's Liability (EL) and Personal Injury (PI) as it can operate across various torts, including breach of statutory duty.
• The term "vicarious" originates from the Latin word "Vicarius," meaning 'substitute' or 'deputy,' indicating the experience of something through another's experiences.
• Vicarious liability commonly arises in employment contexts, highlighting the distinction between employees and independent contractors.
• Mechanism where a defendant is held liable for the torts of another (tortfeasor).
• Critical to differentiate VL from Employers’ liability and their non-delegable duties.
• Vicarious liability is a form of strict, no-fault liability imposed on the employment relationship.
• The employer doesn't need to have committed any wrongdoing to be liable for the actions of their employee.
• Employers hold a strict liability over the actions of their employees.

The Justifications for Vicarious Liability

• Ensuring Compensation:
  • Provides deserving claimants with assets to claim against.
  • Referenced in ICI v Shatwell $[1965] AC 656$ by Lord Pearce.
• Distributing Costs:
  • Spreads costs across the community through insurance premiums.
• Economic Benefit for Employers:
  • Employers benefit economically from their employees' labor and should bear associated costs.
  • Referenced by John Bell in ‘The basis of vicarious liability’ $[2013] CLJ 17$,$18$.
• Risk Management:
  • Employers gain benefits from assumed or created risks.
  • Referenced by Lord Phillips in The Catholic Child Welfare Society and others v Various Claimants $[2012] UKSC 56$.
• Health and Safety:
  • Discussed by McLachlin J in Bazley v Curry $[1999] 2 SCR 534$.

Employers’ Liability

• Employer’s personal non-delegable duty of care.
  • Wilsons & Clyde Coal Co Ltd v English $[1938]$
• Elements include:
  • Competent workforce.
    • Waters v Commissioner of Police for the Metropolis $[2000]$
    • Majrowski v Guy’s and St. Thomas $[2006]$
  • Adequate material and equipment under the Employer’s Liability (Defective Equipment) Act $1969$.
    • Davie v New Merton $[1959]$
    • Wilsons & Clyde Coal Co Ltd v English $[1938]$
    • Jebson v Ministry of Defence $[2000]$
  • A proper system of working.
    • Latimer v AEC Ltd $[1953] HL$
  • A safe workplace.

Case Example: HUDSON V RIDGE MANUFACTURING CO $[1957]$

• Key Facts:
  • The plaintiff sustained a wrist injury due to a workplace incident.
  • A co-worker known for disruptive behaviors, like tripping others and rough play, persisted despite warnings.
  • The co-worker grabbed the plaintiff from behind, causing a wrist injury.

Case Example: Harrison v Michelin Co Ltd $[1985] 1 All ER 918$

• Key Facts:
  • P, a tool grinder, was injured while talking to a colleague.
  • Another employee jokingly turned a truck into P's duckboard, causing P to fall and suffer injury.
  • D denied liability, claiming the employee was on a frolic of his own.

Who is an Employee?

• Traditional Test: The ‘Control’ Test
  • Determines the extent of work control.
  • Looks beyond formal designations to discern the actual nature of the relationship.
• The ‘Economic Reality’ Test
  • Focuses on independent contractors.
• ’Akin to Employment’
  • Discerns non-traditional workers.

Case Example: Stevenson, Jordon and Harrison v MacDonald and Evans $[1952] 1 TLR 101$

• Key Facts:
  • A management engineer authored a book using content acquired during company assignments.
  • The engineer attempted to assign the copyright to publishers.
  • The company challenged this, leading to a legal dispute over contract nature and copyright ownership.
  • Relates to the control test / economic integration.
• Lord Justice Denning:
  • Compares contracts of service (employee as part of the business) and contracts for services (work accessory to the business).
  • Restrictive Approach: Psychiatric Injury not recoverable independent of psychical injury

Case Example: Ready Mixed Concrete (South East) Ltd v Minister of Pensions $[1968] 2 QB 497$

• Background:
  • Case involved a concrete company and a driver with a contractual agreement specifying him as an independent contractor.
• Contractual Arrangement:
  • Driver responsible for vehicle purchase, maintenance, and operating costs.
  • Vehicle had to conform to company specifications and carry its logo.
• Control Over Work:
  • Company directed delivery times and routes.
• Legal Issue:
  • Determining whether the driver was an employee or an independent contractor for pension and national insurance contributions.
  • Relates to Economic Reality/Contract of Service Test

Defining an Employee

• Tort law borrows the basic criterion of who is an employee from Employment law.
• Test Derived from Ready Mix Concrete (Southeast) Ltd v Minister of Pensions $[1965]$:
  • Wage:
    • The employee agrees to provide labor and skill for the employer in exchange for a wage/renumeration
  • Subject to Control:
    • The employee agrees either expressly or impliedly to be subject to their employers’ control
  • Contract of Employment:
    • Contract terms must be consistent with a contract of employment.

‘Akin to employment’

• The rise of complicated worker types (agency, part-time, contractors, gig economy) complicates relationship determination with traditional tests.
• The ‘akin to employment’ test emerged to:
  • Determine whether a sufficient ‘close relationship’ existed between the ‘tortfeasor’ and the employer for vicarious liability.
  • Provide ‘deeper pockets’ to deserving claimants.

Examples:

• Maga v. Birmingham Archdiocese $[2010] 1 WLR 1441$
• E v. English Province of Our Lady of Charity $[2012] EWCA Civ 939$
• Various Claimants v Catholic Child Welfare Society $[2012] UKSC 56$
  • The Clergy
• Cox v Ministry of Justice $[2016] UKSC 10$
  • Prisoner
• Armes v Nottinghamshire County Council $[2017] UKSC 60$
  • Foster parents
• Various Claimants v Barclays Bank $[2017] EWHC 1929 (QB)$
  • Contracted medical personnel

Case Example: JGE v Portsmouth Roman Catholic Diocesan Trust $[2012] EWCA Civ 938$

• Background:
  • Involved a claimant, JGE, alleging sexual abuse by a priest of the Roman Catholic Church.
• Nature of the Alleged Abuse:
  • The abuse claimed to have occurred when JGE was a resident at a children's home run by nuns from the Roman Catholic Church.
• Legal Issue:
  • Determining the vicarious liability of the Roman Catholic Diocese for the priest's actions, as he was not a traditional 'employee.'
  • Relates to Close connection test.

Case Example: Various Claimants v Catholic Child Welfare Society $[2012] UKSC 56$

• Key Facts:

  • Claims of physical and sexual abuse by former pupils of schools run by the Institute of the Brothers of the Christian Schools.

• Institutions Involved:

  • Claims against both individual Brothers and the Catholic Child Welfare Society.

• Legal Issue:

  • Whether the Institute and Society could be held vicariously liable for abuse by the Brothers, who were not traditional employees.
  • Relates to Close connection test.

• The two stage test

  • ‘Provided that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient…just as in the case of the action of a member of a partnership’ (LJ Phillips at $[61]$)
  • 'Living in cloistered on the school premises were vulnerable boys…the brother teachers were placed in the school to care for the educational and religious needs of these pupils.. There was a very close connection between the brother teachers’ employment in the school and the sexual abuse they committed’ $[92-93]$

• Lord Justice Phillips justifications for Vicarious Liability

  • (i) the employer is more likely to have the means to compensate the victim than the tortfeasor and can be expected to have insured against that liability;
  • (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
  • (iii) the employee’s activity is likely to be part of the business activity of the employer;
  • (iv) the employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;
  • (v) the employee will, to a greater or lesser degree, have been under the control of the employer. (at $[35]$)

Case Example: Cox v Ministry of Justice $[2016] UKSC 10$

1. Background: Mrs. Cox, a catering manager in a prison, was injured when a prisoner dropped a sack of rice on her.
2. Legal Issue: Could the Ministry of Justice be held vicariously liable for the prisoner's negligence?
   • Confirmed the ‘akin to employment’ test

Case Example: Armes v Nottinghamshire County Council $[2017] UKSC 60$

• Background:
  • Natasha Armes was placed in foster care and alleged abuse in two separate foster placements.
• Legal Question:
  • Could the local authority be held vicariously liable for the abuse Armes suffered while in foster care?

Armes v Nottinghamshire CC

• The foster carers could not be considered as carrying on an independent business of their own but for the benefit of LA.
  • Independent
• The LA created the risk by placing the foster parents in a relationship of trust and authority
  • Risk creation
• The LA has powers of supervision and inspection and consequentially have a significant degree of control
  • Control
• The foster parents, in contrast to the LA has insufficient means to provide a substantial award of damages.
  • Deep pockets

Case Example: Various Claimants v Barclays Bank $[2017] EWHC 1929 (QB)$

• Key Facts:
  • Claimants alleged sexual assault by a doctor engaged by Barclays Bank for pre-employment medical examinations.
• Doctor's Relationship with the Bank:
  • The doctor was a self-employed contractor, but claimants argued Barclays should be vicariously liable.

VC v Barclays

• The lower courts attempted to apply the two stage test and LJ Phillips 5 policy considerations (as per VC v Catholic Brothers).
  • Irwin LJ determined that Barclays had benefited from Dr. Bates work, that the work was integral to the business of Barclays and that Barclays had the means to satisfy the claims
• High Court and Court of Appeal LJ Hale disagreed with the application of the lower courts as the nature of the relationship was unambiguous.
  • Dr. Bates had various clients and was not financially dependent on his Barclays work and carried out the tortious/criminal behaviour on his own accord.
• Supreme Court restricting the ‘Akin to Employment’

Scope of Employment

• An employer is vicariously liable for torts committed by employees within the scope of their employment.
• Defining the scope of employment and determining which acts fall outside it.
• The question that follows is how is the scope of employment defined, and can some acts committed by tortfeasors be of a nature that renders them outside the scope of employment.
• The Salmond Test
  • Was the employee's act ‘a wrongful and unauthorized mode of doing some act authorized by the master’.
• The ‘Close Connection’ Test/ Lister Test
  • Whether there was a close enough connection between the tort and the nature of the employee’s role so that it would be just and reasonable to hold the employer vicariously liable.
• Intentional Acts
  • Lord Millett ‘guilty of intentional wrongdoing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, …acting contrary to express instructions, or that his conduct was the very negation of his employers’ duty’

Case Example: Beard v London General Omnibus Company Co $[1900] 2 QB 530$

• Key Facts:
  • A bus conductor took it upon himself to drive the bus and caused injuries to the plaintiff.
• Historical Context
  • He was employed as a bus conductor to sell and inspect tickets, not to drive the bus itself.

Case Example: T v North Yorkshire County Council $[1999] 7 WLUK 229$

• Key Facts:

  • The claimant was the family of a boy with a mental disability.
  • The boy was sexually assaulted by a teacher on a school trip to Spain.
  • The Court of Appeal held that on application of the Salmond test the school was not vicariously liable.

• Historical Context

  • ‘But in the field of serious sexual misconduct, I find it difficult to visualize circumstances in which an act of the teacher can be an unauthorized mode of carrying out an authorized act, although I would not wish to close the door on the possibility’ (LJ Butler-Sloss $[18]$)

• Factors Relevant to Scope of Employment

  • Performing the job description badly
  • Breaks – ‘Frolic of his Own’
  • Instructions pertaining to a job extension
  • Furthering the employers’ interests
  • Unauthorized mode of Completing an authorized action

• Cases Related to Scope of Employment

  • Limpus v London General Omnibus Co (1862) 1 H&C 526
  • Century Insurance Co v Northern Ireland Road Transport Board $[1942] AS 509$
  • Storey v Ashton $(1869) LR 4 QB 476$
  • Harvey v O’Dell $[1958] 2 QB 78$
  • Williams v Hemphill Ltd $(1966) SLT 259$
  • Joel v Morison $(1834) 6 Carrington and Payne 501; 172 ER 1338$
  • Hilton v Thomas Burton (Rhodes) Ltd $[1961] 1 WLR 705$
  • Twine v Bean’s Express Ltd $(1946) 62 TLR 458$
  • Rose v Plenty $[1976] 1 WLR 141$

Case Example: Lister v Hesley Hall Ltd $[2002] UKHL 22$

• The claimants, residents at a school boarding house, were groomed and sexually abused by the warden.
• The issue was whether the defendant employers were vicariously liable for the warden's torts.
• Significant case in establishing the 'close connection' test.

Lister v Hesley Hall Ltd $[2002] UKHL 22$

• T h e q u e s t i o n i s n o t ‘ W h e t h e r s e x u a l l y a b u s i n g c h i l d r e n w a s a n ‘ u n a u t h o r i z e d m o d e t o c o n d u c t a n a u t h o r i z e d a c t ’ r a t h e r w h e t h e r t h e r e w a s a c l o s e c o n n e c t i o n b e t w e e n t h e t o r t a n d t h e e m p l o y e e ’ s d u t i e s .
• L J S t e y n : ‘ t h e l a w ‘ n o l o n g e r s t r u g g l e s w i t h t h e c o n c e p t o f v i c a r i o u s l i a b i l i t y f o r i n t e n t i o n a l w r o n g d o i n g ’ b u t t h a t t h e S a l m o n d t e s t ‘ d o e s n o t c o p e i d e a l l y w i t h s u c h c a s e s ’ ( a t $[20]$)

Case Example: Mohamud v WM Morrison Supermarkets $[2016] UKSC 11$

1. Incident: Mr. Mohamud was assaulted by Mr. Khan, a Morrison’s employee, after an abusive exchange at a petrol station.
2. Legal Issue: Could Morrisons be held vicariously liable for the violent conduct of their employee?

Mohamud v WM Morrison Supermarkets $[2016] UKSC 11$

• ‘It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employer sent trusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee's abuse of it.’ $[35]$ Lord Justice Toulson

Inherent Risk

• Inherent risk refers to the potential for harm or damage inherent in a situation or activity.
• Some organizations are particularly vulnerable to the risk of abuse due to power and trust relationships over children or vulnerable adults.

Case Example: Mattis v Pollock (Trading as Flamingo’s Nightclub)$[2003] 1 WLR 1441$

• Employment: Mr. Cranston was employed as a bouncer at a London nightclub.
• Initial Incident: Mr. Cranston ejected a friend of his from the nightclub
• Subsequent Instructions: Mr. Cranston was instructed by his employer not to allow a man named Mr. Cook to enter the club. He threw Mr. Cook out of the nightclub.
• Further Altercation: Mr. Cranston assaulted both Mr. Cook and Mr. Fitzgerald. Mr. Mattis tried to intervene and was stabbed.
• Resulting Injury: The stabbing left Mr. Mattis paraplegic.

Mattis v Pollock (Trading as Flamingo’s Nightclub)

• ‘The responsibility of Mr Pollock for the actions of his aggressive doorman was not extinguished. Vicarious liability was therefore established … Mr Pollock chose to employ Cranston, knowing and approving of his aggressive tendencies, which he encouraged rather than curbed, and the assault on Mr. Mattis represented the culmination of an incident which began in Mr. Pollock's premises and involved his customers, in which his employee behaved in the violent and aggressive manner which Mr. Pollock expected of him.’ [32-33] Lord Justice Judge

Case Example: *Weddall v Barchester Healthcare Ltd EWCA Civ 25

• Incident: Mr. Weddall, a care home manager, was assaulted by an off-duty employee, Mr. Marsh, who he called in to cover an absence.
• Legal Issue: Could Barchester Healthcare be held vicariously liable for Mr. Marsh's actions, considering he was off-duty and had consumed alcohol before the incident?

Weddall v Barchester Healthcare Ltd EWCA Civ 25

• The Court of Appeal Held:
  • That this was in no connected to his employment. The request was a pretext for a violent attack.
  • Marsh was looking for some one to lash out at and good ink no way be considered an inherent risk to the occupation.

Case Example: Walbank v Walbank Fox Designs $[2012] EWCA Civ 25$

• Key Facts:
  • The claimant was a director of a small bed frame manufacturing company.
  • The employee was instructed to mount the bed frame into a small over to bake the paint on.
  • Brown pushed Walbank in the face and pushed him on to a table 12 feet away. Here the attack occurred during a manufacturing process.
• Held:
  • It was concluded that factories are intense places especially in medium to small places where there is needs to meet orders with limited resources.
  • Tempers flare up there is tension and instance of this nature are an inherent risk

Case Example: Woodland v Essex County Council $[2013] UKSC 66$

• Key Facts:
  • The claimant suffered a serious brain injury following an incident during a swimming lesson at a local pool, provided by professional swimming instructors employed by the school as independent contractors.
• Held:
  • That the school owed the claimant a non-delegable duty of care.

Woodland v Essex County Council $[2013] UKSC 66$

• Lady Hale– Provided the example of Amelia, Belinda and Clara. The first two children due to the type of schools they attend would be able to hold the school liable, whereas one could not
• Factors:
  • In a situation where there is a relationship of care, it is possible to define that the defendant has a positive obligation to act to protect the claimant from harm, rather than a duty to refrain from harmful conduct.
  • The claimant has no control over the defendant's performance of that obligation, and the defendant has delegated some part of its function to a third party who has assumed some custody or care.
  • There is also a degree of control, and the third party has been negligent in carrying out the function.
• A vulnerable person who is part of an institution, and that institution has organized an activity run by an independent contractor, then, providing that the criteria can be met, the institution or the school cannot simply delegate their liability to the body that has organized that activity.
• A school has a non-delegable duty of care to protect children entrusted to them by law.
  • This means that the school is responsible for the actions of any contractors or delegate that they hire to perform part of the school's educational function.
  • Schools are not responsible for the actions of contractors or delegates who perform functions outside of school hours or on school premises.
  • Schools are also not responsible for the actions of contractors or delegates who are performing functions that the school does not have a duty to perform.

Case Example: Barry Congregation of Jehovah’s Witnesses v BXB $[2023]$

• Background: The claimant, BXB, alleged that she was raped by Mark Sewell, a member of the Barry Congregation of Jehovah's Witnesses, after a congregation event in the claimants house.
• Relationship of the Assailant: Sewell was an elder within the congregation at the time of the alleged rape. Elders in the Jehovah's Witnesses hold positions of authority and are responsible for teaching, shepherding, and taking the lead within the congregation. However, Sewell and the claimants family had become friends over years.
• Initial Proceedings: BXB brought a claim against the Trustees of the Barry Congregation of Jehovah's Witnesses for the alleged rape. The primary question was whether the Congregation could be held vicariously liable for Sewell's actions.

Scenario: Palmer Residential

• Sybil owns residential care facility named “Palmer Residential.”