#19874 - Vicarious Liability + Problem Question Template - Tort Law

Supervision 5: Vicarious Liability

Non-Delegable Duties

This is an exception to the rule saying no personal responsibility for a duty you didn’t personally breach. This is not vicarious liability – if you delegate one of these duties and it is broken because of someone else’s actions, you are personally liable for it.

Educational Authority has a non-delegable duty to ensure Child isn’t harmed on their premises. They hire PE Teacher from an independent firm who negligently allows Child to be injured.

In the above scenario, the educational authority is liable even though the teacher isn’t from the school.

TYPES OF NON-DELEGABLE DUTIES:

1. Employment. Employer has a duty of care to take reasonable steps to ensure employees aren’t killed/injured working for him (Wilsons and Clyde Coal v English). If Boss tells Supervisor to look after New Kid and Supervisor neglects to tell New Kid how to operate a dangerous machine, Boss is personally liable for any injuries New Kid suffers.

2. Bailment. This is where Bailor gives Bailee some goods to look after temporarily. If Bailee gives Dodgy the goods who loses them through negligence, Bailee is personally liable to compensate Bailor. Morris v CW Martin and Sons.

3. Extra-hazardous Activities. If Photographer uses magnesium flashes to take photographs in Owner’s premises, he exposes Owner to an bigger risk (Honeywell and Stein v Larkin Bros). If the activity is extra-hazardous, the duty of care will be non-delegable. If it’s not, it is delegable. Note: this has been criticised in Biffa Waste Services v Maschinenfabrik and Woodland v Swimming Teachers Association, so the scope of extra-hazardous activities is likely narrow.

4. Educational Authorities. They have a non-delegable duty of care to take reasonable steps to ensure children aren’t injured on their premises. Woodland v Swimming Teachers Association.

5. Assumption of Responsibility. If A has assumed a responsibility to B to do some work with reasonable care and skill or to take reasonable steps to see X doesn’t happen, it’s non-delegable. In Philips v William Whitely, the defendant jewellers had assumed a responsibility when piercing C’s ears. The fact they used an employee from a different company to do the job was irrelevant.

Vicarious Liability

THE BASICS

If X is held vicariously liable in respect of a tort, they will not be held to have committed the tort but will be treated as though they have alongside the actual tortfeasor.

Relationships Invoking Vicarious Liability

1. Employment – ‘in the course of his employment’

2. Relationship akin to employment – Various Claimants v Catholic Child Welfare Society

3. Police chiefs are responsible for officers in their area (s88 Police Act 1996)

4. Agents and hirers have this relationship if the agent is acting in the scope of their authority

5. Car owners are vicariously liable if someone else is driving – Ormrod v Crossville Motor Services

6. Partners of a firm if the tortfeasor partner acts in the course of normal business

7. Joint venture – in Brooke v Bool this involved 2 people checking a pipe where one committed negligence

WHO’S AN EMPLOYEE?

If you have a contract of service, you’re an employee. A contract for services means you’re an independent contractor. This matters because employees aren’t liable vicariously for independent contractors generally, but are for employees. The following is a table for determining whether someone is an Employee (E) or Independent Contractor (IC). This is where worker, A, is hired by C.

None of these factors solely determine employee or independent contractor.

COURSE OF EMPLOYMENT

Salmond Test

This is essentially: did employee commit the tort doing something they were employed to do. Doesn’t matter if employer forbid that thing. In Bernard v Attorney General for Jamaica, policeman shot a man who wouldn’t give him a public phone to call for backup. The policeman was employed to do this. In Heasmans v Clarity Cleaning, the cleaner was not employed to make international calls on the claimant’s phone. She was employed to clean. However, if the employer leads claimant to believe employee is employed to do something and he commits a tort doing it, it doesn’t matter if employee was not employed to do that.

Lister Test

In Lister v Hesley Hall, a new test was created saying: you commit a tort acting in the course of your employment if it was so closely connected with his employment it would be just and fair to hold employer vicariously liable.

It has been criticised on several grounds:

Overstepping constitutional power – can the House of Lords make such significant changes without the legislature?

Necessity – didn’t need a change this big. Could’ve achieved the same goal by saying employers had a non-delegable duty of care to look after the kids employer personally liable

Vague – uncertain, as Lord Nicholls said in Dubai Aluminium v Saalam

Application of the Lister test pre-Muhamud

The courts said it was sufficiently closely connected with employment if (a) the Salmond test is satisfied or (b) there was a special risk with the employee’s job that he would commit that kind of tort.

Special risk arises when there are:

1. Special Skills – in Mattis v Pollock a bouncer’s skills in aggression and intimidation from his job allowed him to commit the tort

2. Special Position of Trust/Confidence – in Maga v Trustees of Birmingham Archdiocese of the Roman Catholic Church it was priests being used for council

3. Aggravation – where employee’s job carries annoyances employee likely to commit tort. In Gravil v Carroll this was a punch in a rugby match, in Wall Bank v Fox Designs it was an employee of a small factory reacting poorly to criticism

Mohamud v Wn Morrison Supermarkets

D racially abuses C at a petrol station, following C from the building to C’s car in doing so. This would not have satisfied the Salmond test – D was not employed to racially abuse people. There was no special risk with his job. UKSC introduced a third category – where an employee commits a tort in the workplace or somewhere they were employed to work. Will the courts follow or ignore this? Who knows.

VICARIOUS LIABILITY FOR NON-EMPLOYEES

1. Borrowed employees – where I send my employee to do a job for B and my employee commits a tort there. Both employers can be vicariously liable. The test in Visasystems v Thermal Transfer is if the employee is so much a part of the work, business, or organisation of both employers it is just to make both employers liable. The same test is used for single vicarious liability when dual fails – the fake employer will be liable, not me. In Visasystems, an apprentice metalworker was helping a metalworker who were from a different company to the one they were doing a job at. Apprentice commits a tort and dual vicarious liability was satisfied.

2. Priests – confirmed in E v English Province of our Lady of Charity

3. Volunteers – can use to criticise Various Claimants ruling

4. Prisoners – Cox v Ministry of Justice

5. Social Services – Armes v Nottinghamshire County Council

WHY IS IT EVER FAIR, JUST, AND REAONABLE TO HOLD AN EMPLOYER VICARIOUSLY LIABLE?

They have deep pockets. Doesn’t work – can pay doesn’t mean they should pay. This isn’t fair.

Glanville Williams said vicarious liability is a search for the solvent defendant and liability should follow the deep pocket. If we can’t get to the employer, it’s likely the defendant won’t be able to pay compensation in full (CA in Mohamud). However, Lord Reed in Cox noted this is never in itself a justification. The Irish Supreme Court in O’Keeffe was on the same wavelength.

Related, Staughton LJ noted in X v Bedfordshire CC vicarious liability protects the employee from financial ruin.

Loss spreading. Companies can absorb losses better fair to attribute losses to them (Weir). What’s fair about making people who can absorb losses better take the losses. By this logic, companies should pay for all torts, not just...