#17349 - Vicarious Liability - GDL Tort Law

A form of secondary liability under which employer may be held liable for the acts of the employee.

• The employer is strictly liable to pay the claimant.

Justification:

• Lord Phillips in Catholic Child Welfare: so long as it is fair, just and reasonable, liability for a tortuous wrong is born by someone with the means to pay compensation. (Deep Pockets Justification)

  • Can still sue the original tortfeasor but under Employers’ Liability (Compulsory Insurance) Act 1969 all employers have to obtain compulsory insurance for their employees.

• Rex LJ in Viasystems v Thermal Transfer: basis that those who gain profit from the actions of their employees should also bear the consequences of the negligence of their employees (benefit/burden theory)

• Also:

  • Employer may be careless in selecting negligent employees. Should suffer the consequences.

  • Employer exercises control and supervision of its employees.

  • Encourages employees to provide better training etc.

Requirements:

• 1) A tort (excluding nuisance) has been committed by X

• 2) X was D’s employee (or akin to an employee)

• 3) The tort was committed in the course of employment (or a relationship akin to employment)

Defining an Employee:

• Ready Mixed Concrete v Minister of Pensions [1968] – driver paid for lorry, but had company uniform, colours and a salary. No set hours, instructions, routes, breaks etc. Held he was an independent contractor. Established ‘economic reality’ test. Must take account of:

  • Remuneration

  • Control

    • Viasystems v Thermal Transfer [2005] – can even have two masters if they both have control over the worker.

      • Dual liability might occur where an employee is lent or transferred to work for another and both employers are entitled, and obliged, to control the employee’s actions so as to prevent the negligent act

    • Hawley v Luminar Leisure [2006] – Nightclub hired bouncer who attacked claimant through a third organisation. Held employee of nightclub not third party as:

      • Nightclub had control (third party did not). Also dressed in uniform of nightclub, and had worked for so long as to become an integral part of the nightclub.

    • Biffa Waste v Maschinenfabrik – D supervised a sub-contractor in building a plant for C. Sub-contractor caused a fire.

      • Mere supervision is not control

  • Other Contractual Provisions consistent with employment relationship

• Warner Holidays v Secretary of State for Social Services [1983] – additional considerations were listed by McNiel J:

  • Tax/PAYE/insurance

  • Sick pay

  • Risk of profit/loss

  • Integration in organisation

    • Stevenson v McDonald [1952] – Copyright case. An engineer wrote a book that used knowledge that he acquired whilst he was working for a firm in different capacities.

      • Distinguished between a “contract of service” and “contract for services” provided to the firm.

      • Someone is an employee if they are an integral part of the business of the defendant (Denning)

  • Right/ability to do other work

  • How the parties describe the relationship

    • Ferguson v Dawson (1976) – Claimant fell from roof working for claimant. Despite both parties calling it ‘self-employed’ held he was in fact employee as they had control to move him and provided tools.

Defining ‘Akin to an Employee’

• Recent development of the law.

• JGE v English Province of Our Lady of Charity [2012] – sex abuse by Catholic priest. Priest is not paid by church but by donations. Yet degree of control exercised (code of conduct etc) meant church is liable.

• Various Claimants v Catholic Child Welfare Society [2012] – Trained ‘brothers’ as teachers before sending them around Europe. Brother donated money back to institute. High degree of control. Close connection between the role they had and the sexual abuse committed.

  • Held the ‘close connection’ was sufficient to imply a relationship akin to employment.

• Cox v Ministry of Justice [2016] – prisoner working in canteen injured a caterer. Held Prison service was liable, tortfeasor:

  • Carried out activities as “an integral part of the defendant’s operation and for its benefit”

  • The defendant “must, by assigning those activities to the tortfeasor, have created the risk of committing the tort.”

• Armes v Nottinghampshire CC [2017] – found LA vicariously liable for the torts of foster carers who had abused children in their case. Court outlined five relavent factors:

  • 1) The LA had the means to compensate

  • 2) The torts were committed as the result of activity taken on behalf of the LA.

  • 3) Fostering was an integral part of the LA’s business

  • 4) The LA created the risk in placing the children in care.

  • 5) A high degree of control is not necessary for VL.

• Barclays Bank v Various Claimants [2018] – Barclays required job applicants to attend a medical examination. Barclays held liable for sexual assaults committed by the Doctor during these examinations.

Defining the Course of Employment/Relationship Akin to Employment

• Original test: Salmond test - the tort will be committed in the course of employment if:

  • 1) It is the wrongful act at the order of the master.

  • 2) An unauthorised mode of doing some act authorised by the master.

    • This may be unfair but would seriously undermine VL if not allowed.

• Century Insurance v NI Road Transport [1942] - driver of a petrol tanker threw a lit match onto the floor while simultaneously smoking a cigarette and transferring the petrol to a storage tank. Explosion.

  • CA held this was in the course of employment, being an unauthorized way of doing something authorized.

• Now the focus is more on the closeness of the connection between employee’s act and the course of their employment:

  • Lister v Hesley Hall [2001] – a warden at a children’s home with limited supervision sexually abused some of the children he was employed to protect. Close connection: The warden's job was to look after children. Sexually abusing children had a connection to his role.

    • Prior to this sexual abuse cases had been deemed as for personal benefit and not in the course of employment.

• Cases where it was in the course of employment:

  • Limpus v London Omnibus (1861) – bus drivers racing each other.

  • Bayley v Machester Railway (1873) – over-zealous railway porter pulling man off train.

• Previously Warren v Henleys [1948] (petrol station attendant physically assaulted a customer threatening to call police on him) criminal acts were not generally considered as being in the course of employment.

• Now under Lister test they generally are:

  • Bernard v AG of Jamaica [2004] – off duty police officer, pretending to be on active duty, demanded phone...