#4656 - Employers And Vicarious - GDL Tort Law

• Vicarious liability: ‘on behalf of another’ - where one party is held liable for the torts of another, arising from a specific relationship between the parties

• Form of secondary liability

• No need to prove fault on the part of the D: D has strict liability

Rationale:

1. Employer’s superior financial position : compulsory insurance: Employer’s Liability (Compulsory Insurance Act) 1969

2. Control and supervision over employees

3. Should suffer the consequences of negligent recruitment

4. Ensures higher standard of care and better training, supervision and control

• Employer’s Indemnity/Contribution: Employer can seek an indemnity from the employee – so they can sue the employee for an indemnity

  • S. 1(1) Civil Liability (Contribution) Act 1978: “The Lister Principle”

  • If employees are up to no good: collusion/illegality

  • In Lister: C was run over negligently at work and sued his boss vicariously: but employer exercised master’s indemnity: the C was in fact the negligent employee’s father – they were trying to make money from vicarious liability (because they had made money from the litigation – they were not impecunious –so the employer was able to sue for an indemnity)

• Principal + Agent: If actions are authorised by the principal, then he is vicariously liable

• Partnerships: partners are vicariously liable for the actions of the other partners: s.10 Partnership Act 1890

Elements:

1. A tort committed by another (X)

2. An employment (or agency) relationship exists between D and X; and

3. The tort was committed in the course of employment

A tort must have been committed: must establish this before the D can be made vicariously liable (usually negligence, but can be trespass to the person)

The Employment relationship

• Employer/Employee relationship – ‘Contract of service’: contrast with employer-independent contractor relationship where there is a ‘Contract for services’ – vicarious liability won’t usually arise

The Control Test (Historical): Too simplistic but still partly used

• Yewens v Noakes: the more control an employer exercises the more likely an employment relationship

• Doesn’t always work – doctors, lawyers, accountants: control is not conclusive

• Cassidy v Minister of Health – hospital was vicariously liable despite only limited control over the doctor

• Argent v Minister for Social Security however – art teacher was allowed to teach what he wished with no prescribed syllabus and with only occasional visits by Director of Drama Studies – found to be self-employed

The organisation or integration test: Doesn’t always work

• Denning LJ in Stevenson, Jordan and Harrison v MacDonald: whether or not the worker is fully integrated within the organization or whether they are auxiliary to it

• Whittaker v Minister of Pensions: trapeze artist was held to be fully integrated within circus:

Multiple or Economic Reality Tests: ‘Economic reality, composite’ test: favoured approach

• Market Investigations v MOSS: Cooke J - control not the only method of determining relationship: multiple factors – no definitive test

  • Part-time interviewer conducting market research held to be under a contract for service

• Ready Mixed Concrete v MOP: X drove a concrete lorry: held to be an independent contractor despite company control over uniform and colours of the lorry. He was responsible for hiring, insuring and running the lorry and was paid on the basis of his mileage

  • MacKenna J: 3-stage test:

1. Remuneration

2. Control; and

3. Whether ot not the other provisions are consistent with a contract of service

• Warner Holidays Ltd v Secretary of State for Social Services: McNeill J – list of points a court should consider:

1. Level of control

2. Provision of tools and equipment

3. Salary

4. Tax/PAYE/national insurance: Airfix v Cope

5. Sick pay

6. Bearing the risk of profit and loss: Young & Woods Ltd v West / Hall v Lorimer

7. Residual control

8. Control over hours of work

9. Right/ability to do other work: Argent v Minister of Social Security

10. How parties describe their relationship ie labelling

    • Massey v Crown Life Insurance: labelling NOT conclusive

11. Mutuality of obligations: the more obligations the more likely the employment relationship

    • O’Kelly v Trusthouse Forte: casual waiter not an employee as had no obligation to work and the employer had no obligation to provide work

Lending Employees: Where Employer (E) lends employee (X) to another employer or hirer (H)

• Mersey Docks v Coggins and Griffiths: HL stated that as a general rule (E) remains liable and it would be difficult to rebut this presumption

• Viasystems Ltd v Thermal Transfer Ltd and Others: CA found that in certain circumstances, two parties can be vicariously liable for the actions of the same employee: dual liability may occur where an employee is lent to work for another and both employers are obliged to control the employee’s actions – but this is rare

• Emphasis on the level of control enjoyed by the hirer over the worker and the provision of equipment: Mersey Docks involved the hire of a crane driver and his crane – his wages continued to be paid by original employer and hirers did not tell him how to operate his crane

Tort must be committed in the course of employment

Winfield – an employee is in the course of employment if the wrongful act is:

1. Expressly or impliedly authorised by the employer; or,

2. Incidental to the carrying out of the employer’s proper duties; or

3. An unauthorised way of doing something authorised by the employer

• Authorised acts in an unauthorised manner:

  • Limpus v London General Omnibus Co: bus driver racing bus with another driver

  • Bayley v Manchester, Sheffield and Lincolnshire Railway: railway porter injured C pulling him from the correct train

  • Century Insurance v N. Ireland Road Transport Board: lorry driver caused an explosion by smoking a cigarette while filling lorry with petrol

• To be outside course of employment an employee must be acting on a ‘frolic of his own’ (Joel v Morrison): ie does something he is not authorised to do

  • Beard v London General Omnibus Co: bus conductor tried to drive a bus

  • Daniels v Whetstone Entertainments Ltd: Bouncer assaulted C twice, once inside and once outside the club – the employer was only liable for the first assault

  • Keppel Bus v Saab Bin Ahmad: bus conductor hit a passenger with his ticket machine

  • Makanjuola v Metropolitan Police Commissioner: having sex with C, offering to refrain from reporting her alien status to Immigration authorities

Special Categories

Express prohibition by employer

• If employer limits the scope of employee’s work then it will generally be effective but if they try to restrict the mode of performance then it is unlikely to be effective

• Twine v Bean Express Ltd: lorry driver picked up hitch hiker despite express instructions not to: not within scope of employment

• Conway v George Wimpey Co.: expressly forbidden act when giving lift to employee of another company so no vicarious liability

• Different approach of Denning LJ in Rose v Plenty: 13 year old boy injured helping a milkman due to milkman’s negligent driving: found employers vicariously liable as the prohibited act was done ‘for the employer’s business’: Scarman LJ reached the same conclusion with more traditional approach - constituted unauthorised mode of performing authorised task

Deviation from an Authorised Route: new and independent journey is not covered by vicarious liability

• Storey v Ashton: driver deviated from route back to employer’s premises: not in the course of employment

• Depends on the extent of deviation, whether travelling was in working time and the purpose of the journey

• Smith v Stages: (HL) two employees injured in a car crash – they had been paid travel expenses and were within working hours so WERE in course of employment: deviation was incidental

• Employees are generally outside scope of employment when travelling two/from work

Criminal act and breach of statutory duty: stricter approach

• Warren v Henleys Ltd: acts of personal vengeance was outside course of employment

• Daniels v Wheston Entertainment: illegal act NOT in course of employment

• Irving v The Post Office: racial abuse on letters to the C was ‘frolic of his own’

• However – in Fennelly v Connex South Eastern Ltd: CA held that it was aritificial to separate assault from what the employee was employed to do – to verify payment for the journey – comprised a single incident

  • Similarly: Mattis v Pollock (t/a Flamingo’s Nightclub): bouncer stabbed C outside of the club but nightclub was still liable as at the moment when the C was stabbed, control was not extinguished

  • Lister v Hesley Hall Ltd: Vicarious liability for sexual abuse committed by employee – ‘concentrate on the relative closeness of the connection between the nature of the employment and the particular tort’: and also MAGA v Trustees of the Birmingham Archdiocese of the Roman Catholic Church

    • ...