Vicarious Liability
16 Vicarious Liability
Learning Objectives
Understand the nature and purpose of vicarious liability.
Understand the testing of employment status.
Understand other areas of vicarious liability.
16.1 The Nature and Purpose of Vicarious Liability
Definition: Vicarious liability is where a third person has legal responsibility for the unlawful actions of another.
Commonly seen in the workplace where an employer is responsible for the actions of an employee during their employment.
Not an Individual Tort Claim: Unlike negligence or nuisance, vicarious liability does not involve an individual tort claim but imposes liability on a party who did not directly commit the tort.
Basis of Liability: The premise is that employers have control over their employees at work and should be accountable for any torts committed by them within that scope.
Challenges to Control:
The clear control employers had over employees in traditional societies has diminished.
Modern work environments (e.g., medical professionals) make control less apparent.
Example: A hospital manager lacks medical expertise and control over surgeons.
Question arises: Should an employer be liable for remote workers or those working from home?
Criticism of the Rule: It can be unfair as innocent parties (employers) are held liable for actions they did not personally commit or fail to prevent.
Justification for Liability:
It allows victims to receive compensation for injuries suffered.
Employers traditionally maintain a degree of control over employee actions, and should bear the costs of their employees' actions if those actions are in accordance with employer directives.
Employers are responsible for hiring, training, and supervising staff effectively, and can be liable if they fail in these responsibilities.
Employers usually are in a better financial position to provide compensation due to public liability insurance requirements.
16.2 Testing Employment Status
Tests Required to Prove Vicarious Liability
To establish vicarious liability, two main tests emerge:
Was the individual who committed the tort an employee?
Did the employee act 'in the course of his or her employment'?
Employment Test
Old Test: Determined by contracts:
Contract of service → Employee
Contract for services → Independent contractor
Importance of Test: Employers can be vicariously liable for employees, but independent contractors are responsible for their own actions.
Modern Work Relationships: Full-time/part-time arrangements define employment, yet casual or temporary employment (zero-hours contracts, internships, volunteering) complicate this.
16.2.1 The Control Test
Definition: The control test determines if the employer has the right to control the employee's work details.
Case Reference: Yewens v Noakes (1880) established that control relates to 'how' and 'what' the employee does.
McArdie J's Input in 1924: Emphasized control's nature and degree is crucial.
Lord Thankerton's Identified Features: Selection rights, work method control, suspension/dismiss, and salary payment.
Limitations: Difficult to apply accurately today; some instances provide useful control test applications, like borrowed workers.
Example Case: Mersey Docks and Harbour Board v Coggins (1947)
Crane driver injury case: Court established:
Hiring contracts are not decisive; original employers often retain liability unless proven otherwise.
Permanent employers presumed liable unless contrary is established.
16.2.2 The Integration/Organization Test
Lord Denning's Test (1952): Determines if an individual's work is integrated into the business.
Fully integrated work indicates employee status; accessory roles indicate independent contractor status.
Examples:
Employees: Ship master, chauffeur, reporter.
Not employees: Pilots, taxi drivers, freelance writers.
Limitations: Confusion among test results, exemplified through inconsistencies with teachers working as examiners.
16.2.3 The Economic Reality or Multiple Test
Definition: This test evaluates various factors related to employment vs self-employment.
Established in Case: Ready Mixed Concrete (1968), focused on National Insurance contributions.
Three Conditions for Employment:
Agreement to provide work for a wage.
Work subject to employer’s control.
Contract features consistent with employment.
Current Considerations: Evaluate factors like ownership of tools, payment methods, tax deductions, job descriptions, and independent work capability. No single factor is definitive.
16.2.4 Recent Developments
Courts increasingly consider non-traditional employment situations, often tied to their obligations for vicarious liability, especially in historic abuse claims.
Example Cases on Employment Relationships:
Ev English Province v Charity: Vicarious liability of bishop for priest abuse.
JGE v Portsmouth Roman Catholic Trust: Priest's close connection to church led to liability.
The Catholic Child Welfare Society v Various Claimants: Sufficiently akin relationship led to liability for teachers' actions.
Mohamud v WM Morrison: Sufficient connection established between employee's actions and employer's duties.
Cox v Ministry of Justice: Similar employer-employee relationship determined for prison worker.
16.3 Acting in the Course of Employment
To hold an employer liable, the employee must commit the tort during employment hours.
Courts evaluate on a case-by-case basis, often favoring victims in recent judgments.
Acting Against Orders
If employees act against orders while performing their jobs:
Cases:
Limpus v London General (1862): Employer liable for employee racing.
Rose v Plenty (1976): Dairy vicariously liable for employee using unauthorized help.
Unauthorized Acts: Employers not held liable for unauthorized acts, e.g., Twine v Beans Express (1946) and Beard v London General (1900).
Criminal Acts by Employees
Employers may be liable if there’s a close connection between employee misconduct and employment duties.
Case Reference: Lister v Hesley Hall (2001): School warden’s assaults resulted in liability due to close employment connection.
Contrast Case: Chief Constable v Merseyside (2006), no employer liability due to actions outside legitimate employment scope.
Negligent Acts
Employers can be liable if an employee's negligence leads to injury.
Example: Century Insurance Co. Ltd v Northern Ireland (1942): Tanker driver’s negligence caused significant damage.
Frolic of His or Her Own
When an employee acts outside employment scope (i.e., ‘frolic of his own’), the employer is not liable.
Case Examples:
Hilton v Thomas Burton (1961): Employees on unauthorized break held no grounds for vicarious liability.
Smith v Stages (1989): Employee driving back was vicariously liable as part of employment.
Payment of Compensation
Primarily the employee is liable but can impact the employer's liability.
If within employment scope, employer vicariously liable, and the victim receives a single compensation amount.
Employers can recover costs under the Civil Liability (Contribution) Act 1978, which remains practically ineffective due to employee financial status.
16.4 Other Areas of Vicarious Liability
Vicarious liability extends beyond employer-employee relations:
Parent-Child Example: Parents may be vicariously liable for their child’s actions leading to injury.
Cases Referenced:
E v English Province of Our Lady of Charity (2012)
JGE v Portsmouth Roman Catholic Diocesan Trust (2012)
Mohamud v WM Morrison Supermarkets plc (2016)
Cox v Ministry of Justice (2016)
Armes v Nottinghamshire County Council (2017): Council liable for foster carers' misconduct.
Summary
Vicarious liability assigns responsibility to one party for another’s actions, often applying to employers for their employees' actions.
Conditions include employee status vs independent contractors and whether actions fall within employment scope.
Different methods exist to test employment status, emphasizing varying aspects of control, integration, and economic realities.
Employers are liable for employees acting against orders or during negligent acts, but not for unauthorized acts or when 'frolicking'.