#3545 - Vicarious Liability - Tort Law

Vicarious Liability

1. Is the person committing the tort D’s employee

   1. Is D the Employer?

• Transferred employee – commits the tort whilst hired by another enterpriser for a particular period of time/task ask who is entitled to tell him the way in which he’s to do the work for which he was engaged (control of task + method of performance) (Lord Porter in Mersey Docks)

• Hawley v Luminar – night club security hired by the club, though contract w/security services company, punched C, caused brain damage, club owner liable.

• Dual employment – ask who’s the employer for thatparticular task capacity of control test (who was entitled and, if they had the opportunity, obliged to control/stop employee from performing.

• Via Systems v Thermal Transfer– C contracted w/1^st D to install air conditioning system, he contracted w/2^nd D who hired a fitter who brought his friend along, friend negligently crawled through the duct, causing severe flooding. Held both Ds could be sued.

• NB: supervision isn’t the same as control

• Temporary employment – capacity of control test

• Biffa Waste Management Services – fire at waste recycling plant caused by a spark; importance of common sense underlined

• Heavy onus on permanent employer to show the other employer should be liable

• Alternative in Canada – view employers as partners giving rise to joint control (but no reason why non partnership relationship should be excluded)

• Dual vicarious liabilitydivision (both employers are at fault – 50/50 (Via Systems)

• SC of Canada – 75/25

• Should parties be able to define their legal relationship in definitive manner?

2. Is C Employee/Contractor/Agent?

1. Independent contractor (contract of services) - degree of integration into business/contractual terms

• Not liable for contractor’s negligent acts unless

1. Authorised the commission of tort joint tortfeasor

2. Owed a non delegable duty of care to ensure care was being taken (unless negligence was collateral; i.e. outside the scope)

1. Hospital – non delegable duty to ensure suitable treatment is given, unless it’s a visiting clinician

• Cassidy v Minister of Health – C, due to negligence of one of employees of the hospital, who administered treatment, lost use of his hand. Hospital liable, even if couldn’t determine exactly who caused it.

Only applies to treatment, doesn’t extend to outsourcing of sample testing

• Farraj v King Healthcare NHS Trust – C had a rare disease, samples taken to check if baby would get it, sent to independent contractor for testing, who was negligent. Hospital not liable.

• Existence not completely certain!

2. Roadworks – non delegable duty to ensure due care is taken when working on the highway in order to protect road users

• Sallsbury v Woodland – employer contracted X to do some tree filing, due to his negligence tree broke, fell on the road, C had a crash & was injured. No delegable duty b/c work not done on highway but near it.

3. Extra hazardous activity involving special danger to others

4. Statutory duty

5. Liability under Rylands v Fletcher

6. Duty for safety of employee

• Courts are reluctant to extend the scope of non-delegable duty

2. Employee (contract of employment)

• Employer/employee relationship isn’t absolute but relative

1. Violent – employer liable for risks incidental to the type of business (Dubai Aliuminium)

• Mattis v Pollock – X was engaged as doorman at a club, employer knew him to have violent tendency & expected him to be violent, he stabbed a customer, D liable.

2. Thief – employer can be liable for theft by his employee

• Brink’s Global Services v Igrox– theft of silver bars during transition of container by employees of company which contracted to deliver it to India

3. Breach of statutory duty

• Majrowski v Guy Thomas Hospital – vicarious liability under Protection from Harassment Act but decided on statutory interpretation rather than general principle

3. Agent

• In order to prove owner of the car is vicariously liable, C must show driver acted for owner’s purposes, under delegation of some duty or task

• Launchbury v Morgans–wife, owner of car, in which drunk husband died & injured C passengers wasn’t vicariously liable (even told him not to drive when drunk).

4. Atypical relationship(semi dependent worker’s /quasi dependent worker’s contract)

• Approach isn’t clear – see theory

• Australian case used the concept of agency

2. Was the tort was committed in the course of employment?

   1. Salmond test (N/A)

   1. wrongful act authorised by the master

• why need vicarious liability in a) at all?

  1. unauthorised method of performing an act authorised by the master

• Century Insurance v Northern Ireland RTB – petrol van driver dropped a match whilst petrol was being transferred, explosion & damage, employee liable b/c unauthorised mode of performing an authorised act

• The fact that employee was doing an act for own benefit wasn’t fatal to finding liability

• Rose v Plenty– milkman expressly told not to employ anyone but employed a boy who was later injured due to negligent driving; employer liable b/c unauthorised mode of performance

• Distinguish b/w prohibitions which limit the sphere of employment & prohibitions which only deal w/conduct within sphere of employment

2. Close connection test

1. Acts inextricably interwoven w/employee’s duties

2. Risks reasonably incidental to employment (Dubai Aliuminium)

• A composite concept involving: physical proximity + consideration of task employee was performing + causal relationship b/w task & the tort + value judgment as to imposition of vicarious...