Vicarious Liability AO3
Introduction
Vicarious liability is imposing liability on someone other than the tortfeasor
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Overall fairness on imposing liability on someone other than the tortfeasor
Fair as the tortfeasor is a “man of straw” so imposing on someone else gives certainty for people claiming damages → Supported in Viasystems (Flooding due to a burst pipe) where it was said that multiple people can be held liable
→ Not fair that the tortfeasor may escape liability but their employer who was not to blame is held responsible for what happened
However it can be said employers are responsible for the training and regulations needed for their employees so they should be able to control this
Requirement of establishing if there is a relationship between T and D which makes it fair for D to pay the compensation to C (Multiple Test)
The Multiple test is now the test preferred by the courts for proving if T was an employee of D under a contract of service (employment contract). It is fairer than the older tests (control and integration) because it takes more factors into account and so is realistic because it recognises the complexity of modern working practices e.g. pilots
→but these workers are still employees even though not controlled by the employer in terms of being told how to do their job.
Requirement of establishing if there is a relationship between T and D which makes it fair for D to pay the compensation to C (Akin to employment test)
Cox test for ‘sufficiently similar relationships’ ‘akin to to employer-employee'.
Is T an integral part of the organisation?
Did D take a risk putting T in that position?
- This test has expanded vicarious liability to other types of organisations (not just employers in businesses). Prisons, churches and councils have been included.
Cox V Ministry of Justice- Caterer was injured by a prisoner at a prison, the government department was responsible as T was seen to have a relationship akin to employment
→This expansion of liability can be criticised because these are non-business organisations which do not make a profit and so may not have the ‘deepest pockets’. Making them vicariously liable will increase the risk of running voluntary organisations and may cause them to close.
→ On the other hand, in the light of the growing number of abuse stories, it is only right that all organisations should realise that they are responsible for the actions of their members and carry out regular checks and oversight.
Requirement of testing whether there was a sufficiently close connection between the relationship and the wrongdoing - Salmond Test (Wrongful authorised acts)
The Salmond test – the first option (wrongful authorised acts) is fair on all parties. C will be compensated, T was only following instructions so should not be blamed and D should be held responsible for authorising their employee to commit a wrongful act. DP
Poland V Parr- D was told to defend the cart no matter what, so he assaulted someone trying to steal it
Requirement of testing whether there was a sufficiently close connection between the relationship and the wrongdoing - Salmond Test (authorised act in an unauthorised manner)
The second option (authorised acts in an unauthorised manner) leads to several problems:
- D can be held liable for the acts of disobedient employees -Limpus v Omnibus - T was told not to race the buses by D but he still did it and D was liable
On the one hand this is fair because the employer has control over who s/he hires and fires and is responsible for training and supervising them.
On the other hand it is unfair especially if the employee does something which has been expressly forbidden eg. racing. Also, it is not necessarily true that an employer can easily deal with a disobedient employee by dismissing them as modern employment legislation makes this more difficult than in the past
→ Some change in attitude has been seen in Beard V Omnibus- Bus conductor raced the buses, but this was seen as out of his role and seen as a “frolic of his own”, however because of how similar the facts are to Limpus it can be confusing to apply
Requirement of testing whether there was a sufficiently close connection between the relationship and the wrongdoing - Salmond Test careless employees
- D can also be liable for the acts of negligent employees- Century Insurance v N.Ireland Transport- T lit a cigarette near a petrol station causing an explosion → D still held liable
This is unfair because it is very difficult for an employer to prevent acts of mindless carelessness by employees no matter how well they train and supervise them.
- However it is fair on C because with such a large claim as this one the employer will have compulsory public liability insurance which will provide the compensation. Even if this was not so, the employer would still be able to pay the compensation out of profits and regain the cost
Requirement of testing whether there was a sufficiently close connection between the relationship and the wrongdoing - Salmond Test Unauthorised Acts in unauthorised manner
One problem with the Salmond test is that it can work inconsistently. Both Rose v Plenty and Twine v Beans involved employees who gave unauthorised lifts but were held VL in Rose but not in Twine. Such inconsistency makes it difficult for employers to be clear how to protect themselves against liability.
Twine V Beans - (T gave forbidden lifts to someone and was later in an accident, causing injury to CLMT)
However, one distinguishing factor between these two cases may be that in Rose the employer received a benefit from T’s tort (the boy was helping with milk deliveries) and therefore the employer should bear the cost of the consequences.
Requirement of testing whether there was a sufficiently close connection between the relationship and the wrongdoing - Close Connection Test
The Close Connection test (created in Lister v Helsey Hall- Warden was sexually assaulting school students, and the owner was held liable for allowing this to occur)
Close Connection test initially used to establish whether crimes are committed ‘in the course of employment’ but now is being used for torts as well
→criticised as too vague and open to inconsistency. There may be different judicial opinions as to whether there is a sufficiently close connection between T’s job and the crime s/he committed.
e.g. it is easy to see a connection in Mattis v Pollock where T’s job as a bouncer (encouraged to be aggressive) can be seen as closely connected to his crime, but this is less obvious in Mohamud v Morrisons where T was a kiosk attendant who assaulted a person
However the test has now been clarified to some extent in Mohamud but it is still left to judicial opinion as to when a connection is close enough for it to be socially just (fair) to impose
Conclusion
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