#2292 - Employer Vicarious Liability - Tort Law

Requirements for Vicarious Liability

1. Employee committed tort

• C must first show that X committed a tort against them – showing the ordinary requirements of that tort e.g. duty of care etc.

2. Existence of employer/employee relationship

• The basic principle

  • Salisbury v Woodland [1970]:

    • Not enough to say X employed by E

    • You have to show contract of service

      • Where X is independent contractor whom E has no way of controlling the method of his working

        • E will not then normally be considered vicariously liable for X’s torts

• Identifying this Relationship

  • Terms of the contract

    • Courts will look at the substance of the contract, not what the parties call each other within the contract

    • Young and Woods v West [1980]:

      • Even when the parties have done so to avoid certain taxes and then attempt to gain benefits associated with that employment

        • In this case, impossible to say W was self employed as he couldn’t be treated as a business in his own right

          • owing to the context of his work and relationship with Y.

  • Control

    • If X is under the supervision of E and under E’s instructions, then X is clearly an employee of E

    • Giliker: new commercial practises and the technological age mean this is less of the case

      • E.g. doctors are “employees” of a hospital

      • Cassidy v Minister of Health [1951]:

        • Somervill LJ:

          • But can’t say they are under the “control” of E b/c expected to use their discretion

            • (even though they do actually have a contract of service)

          • Therefore, this is not a necessary factor for an employer/employee relationship necessarily.

  • Ordinary person would think X was under a contract of service?

    • Cassidy v Minister of Health [1951]:

      • Somvervill LJ:

        • If an ordinary person would think X was under a contract of service, he is held to be.

      • ME: BUT can an ordinary person classify every single case easily? Test is too vague.

  • Integration?

    • Harrison Ltd v Macdonald and Evans

      • Denning LJ:

        • if X is integral part of business, E ought to be liable as X is employee.

      • BUT how do we distinguish between servants or not? What makes someone integral or part and parcel?

  • Relationship as a whole

    • Looks at all of these factors – if most present then probs contract of service

      • B can control how A works

      • A is required to do work for B for a set period of time

      • A is due to be paid a salary for the work done by B

      • A’s obligations are personal and cannot be discharged by a third party performing them

      • The terms indicate that A is working for B and not for his own business interests

    • Elias J: as a minimum, should have mutuality of obligation and control between E and X

      • If so = contract of service

• Exceptions – where independent contractors can be liable

  • Hazardous situations

    • Honeywill v Stein and Larkin [1934]:

      • E therefore under a duty to ensure that proper safety precautions are taken from all who are working on his project,

        • whether employed by him or not

    • Biffa v Maschinenfabrik [2009]

      • CoA:

        • This principle should only apply in exceptionally dangerous/hazardous works

  • Where non-delegable duty

    • Cassidy v Minister of Health [1951]:

      • Denning LJ

        • At which point it matters not whether X is employed under contract of service or contract for services

          • because E will be personally (not vicariously) liable if that duty is breached or not performed.

• The situation with lent employees

  • Problems arise when employee hired out to work for other company

    • Does X remain employees of E, or become for that period employees of O?

      • This determines who will then be vicariously liable for X’s torts.

  • General rule =

    • Mersey Docks v Coggins & Griffiths Ltd [1947]

      • Viscount Simons:

        • In the ordinary case, the regular employers exercise this authority by delegating to their workman discretion in method of driving,

          • a discretion which had been vested in him by his regular employers when he was sent out with the vehicle to the hirer

            • This means that only the regular employers are liable

      • Lord Macmillan:

        • The crane driver was the servant of the appellant board

          • They engaged him, paid him, prescribed the jobs he should undertake and could alone dismiss him

            • Thus, he was servant of the Board when the tortious acts occurred

        • BUT it is open to employer to show that he has temporarily transferred the services of his servant to another party

          • with consequent liability for his negligent acts to the borrowing party.

  • Alternative Rule?

    • Viasystems Ltd v Thermal Transfer Ltd [2005]:

      • May LJ:

        • Where hirer and regular employer exercise control over S

          • They should be held jointly vicariously liable for S’ negligence

      • Rix LJ:

        • Dual vicarious liability shouldn’t come down necessarily to just a matter of control

          • Should only be imposed where worker is so much a part of the work, business or organisation of both employers

            • that it is just to make both employers answer for his negligence.

        • The question is whether X still recognisable as the employee of his regular employer,

          • But the situation dictates that he ought to be treated as though he was the employee of the temporary employer as well?

            • If so = joint liability.

    • Biffa v Maschienfabrik [2009]:

      • CoA:

        • Only if agreement between regular employer and the hirer confers on hirer power to control manner of execution of the work

          • Can transfer of vicarious liability can occur.

        • No such transfer can take place without the consent of the employee, although of course that may be inferred.

        • Both Rix LJ and May LJ considered- no disapproval of Rix LJ though per se.

3. Employee acted in the course of employment

• The General Test

  • (a) X carried out his job through authorised means which led to the tort

  • OR (b) X achieved his employment ends, albeit through unauthorised means

    • Century Insurance v NI Road Transport Board [1942]: X lights cigarette while unloading petrol from tanker for E -> boom

      • Viscount Simon:

        • If you just focus narrowly on cigarette, can’t say this was within course of employment

        • But taking broader approach re: employment

          • He was doing his careless act while on duty of delivering the petrol

          • Therefore, all careless acts while unloading petrol = within course of employment.

    • Atiyiah: negligence cases are easy to hold within “the course of employment”

      • Because a negligent act will generally by an alternative method of carrying out an authorised act

        • i.e. lighting cigarette and carelessly discarding it while unloading tanker

          • is just a negligent way of carrying out an authorised act (unloading the tanker).

• Getting to and from work

  • Smith v Stages [1989]:2 employees had driven to Wales from Staffordshire to carry out emergency works, being paid their ordinary salary and travel expenses, and they decided to work non-stop and drive straight back without sleep. Crashed -> serious injuries to both.

    • Lord Goff:

      • Driving home from work generally not counted as course of employment

        • But, where employee required to travel using employer’s transport to work then held to be within course of employment

          • Employer had paid wages not just travel allowance

          • Meant men still acting within course of employment

• Can E still be vicariously liable for the acts of X if the means to achieve the employment aim had been expressly prohibited by E?

  • Rose v Plenty [1976]:

    • Scarman LJ:

      • Looking straight at facts of incident, would say that carrying the boy on the float — giving him a lift — was not in the course of the servant's employment.

        • But proper approach to the nature of the servant's employment is a broad one,

          • not dissecting the servant's task into its component activities but asking “what is this person’s job?”

      • X was employed to drive a milk float and collect payments

        • He ignored a prohibition not to use children like C

          • Doesn’t mean he didn’t still do his job, albeit in a prohibited manner (by getting C to help him out)

    • Lawton LJ(dis):

      • In this case, X was not conducting himself within course of employment - he had not been authorised to subcontract his work

        • He was getting C to do the job which he was employed for and was getting paid

          • Thus, he was acting outside his employment.

      • It is only X’s disobedience that seems to bring E into liability

        • Which doesn’t really seem particularly fair.

• Can E still be vicariously liable for the acts of X if they involve criminal conduct?

  • Lister v Hesley Hall Ltd [2001]:

    • Lord Steyn:

      • The question is whether D’s torts were so closely connected with his employment

        • that it would be fair and just to hold the employers vicariously liable

      • Generally, Salmond test applied

        • Problem = if applied mechanically

          • Then E cannot be vicariously liable where X, working in a bank, defrauds C,

            • unless E is making a business out of defrauding people – clearly absurd.

      • Could treat sexual acts as separate from duty X is employed to do - these acts were beyond scope of employment because were for self gratification

        • BUT If you look at the situation more generally – while X was being employed to do a specific duty

          • He erred from it by abusing the children while in his employment capacity.

            • BUT Acts occurred at time and place demanded by his employment – they had a “close connection” to them

    • Lord Clyde:

      • E, no matter how honest, has to be responsible to third parties for acts which he has expressly or impliedly forbidden his servant to do.

        • Because when he delegates to employee some duty

          • he must take the risk of the servant's action being misdirected.

      • It remains necessary to E’s...