Evaluating Vicarious Liability
The two stages as defined in BXB:
1) Are you an employee or akin to employment.
2) Were the actions so closely connected they can be regarded as in the course of the employment or qusai employment (volunteering).
The traditional approach (old law - The Salmond test)
The tort must be unintentional.
It must be done by an employee.
It must be in the course of employment.
The tort must be unintentional
- Bad: frolic of ones own doesn’t apply.
- Bad: closely connected isnt mentioned.
- Good: protects the business from the employees actions.
- Good: an employer can be expected to train their staff not to make mistakes.
- Bad: Only allowing for unintentional torts would mean the claiments in Lister V Halsey Hall would recieve no compensation.
It must be done by an employee
- Good: an employee selects who they want to be an employee and can dismiss them; this means that cases like Rose V Plenty put the emphasis on their employees to oversee their staff.
- Bad: it would mean that cases like Catholic Welfare V Various claimants the akin to employers would not be liable.
The tort must be in the course of employment
- Good: an employer can only ever be liable for something they do as part of their job otherwise it’s beyond their scope or a frolic of ones own.
- Bad: This has not really changed with the close connection test (especially following the Barclays Bank V Various claimants).
What are the key developments identified by Lord Burrows in BXB:
1) Lister V Halsey Hall (2001) - establishes and adds close connection test and removes the need for unintentional torts
2) Dubai Aliminium V Salaam (2002) - clarifies close connection to mean in the field of employment
3) Catholic Welfare Society V Various Claiments (2012) - introduces akin to employment
4) Cox V Ministry for Justice (2016) - Suggests Catholic welfare is too wide and only; on behalf of employer, as part of their business, and the employer creates the risk should be the test for akin to employment
5) Mohamud V Morrisons (2016) - Confirms that the close connection test in Lister and Salaam are correct and it’s necessary to look at the field of employment. This is interpreted widely.
Barclays Bank V Various Claimants (2020) - establishes vicarious liability does not extend to independant contractors (people acting as their own business) and re-clarifies the five tests in Catholic welfare are relevant for akin to employment.
Morrisons supermarkets V Various claimants (2020) - personal vendettas against a business, that provide the business with no benefit, do not create vicarious liability as their not closely connected to the course of employment.
Recent developments in vicaious liability have been positive (20 marks)
- Statement: A recent positive development is removing the need for an unintentional tort.
- Because: because is ensures compensation is more likely.
- Evidence (explain): which was seen in Lister V Halsey Hall as abused victims were able to recieve compensation which is not possible under Salmond. The removal of unintentional torts means claiments again are more likely to be put back into the position they were in prior to the loss. However, by making it easier to claim in vicarious liabiloty employers are more likely to have to pay more in insurance creating inflating pressure.