#5371 - Vicarious Notes - Tort Law

6.0 - VICARIOUS LIABILITY

6.1 - REQUIREMENTS

A party D may be liable for the act or omission of another (X) which caused loss to a third party (C), where:

1. C suffered loss as a result of the tortious act committed by X;

It is not required that D himself owes C a duty of care (this is the now disregarded "master’s tort theory”.

2. Some relationship must exist between the tortfeasor X and D.

3. There must be some connection between the tortious act and the relationship.

This requirement is satisfied where X act in the "course of his employment” by D.

In such cases X’s liability is not extinguished, and she is jointly and severally liable with D.

THE REQUISTE RELATIONSHIP

It is necessary that the relationship between the parties is governed by a contract of service, as opposed (generally) to a contract for services. The former case is one of employment, whereas the latter is one of independent contractors. Although the classification used by the parties themselves will be taken into account by the courts, it can never be conclusive.

The conventional test used by the courts is the "control test" as expressed by Bramwell B in Yewens v. Noakes:

"A servant is a person subject to the command of his master as to the manner in which he shall do his work".

The gist therefore is that an employee is employed under a contract of service if his employer can tell him not only what to do but also how to do it.

Such a test, however, only works satisfactorily in situations where the employer has at least as much technical knowledge as the employee, and is therefore able to instruct him in how to do the work. In many modern situations people are employed precisely because they have technical knowledge and skills that their employer does not have: in such cases therefore it may be unrealistic to say that the employer can tell him how to do his job. The courts, however, continue to use the test in its traditional formation when appropriate.

In other cases control of incidental features? In answering the question of control the courts take into account a wide variety of factors including:

1. powers of appointment and dismissal;

2. who pays the wages;

3. where the employee works;

4. who provides the tools of the trade;

5. who pays national insurance contributions or deducts tax;

6. how the contract itself describes the parties relationship.

In Mersey Docks And Harbour Board v Coggins it was held that in the case of borrowed or transferred employees, they must be shown that there is clear evidence that the employment had been transferred.

In Viasystems v Thermal Transfer it was held that it was possible for there to be multiple employers of a single person -- in such a case each would be jointly and severally liable. In cases where neither employer is at fault, then their liability will be equal under the civil liability (contribution) act 1945.

THE CONNECTION REQUIRED BETWEEN THE EMPLOYMENT AND THE TORTIOUS ACT

The employee must commit the tort in the "course of his employment".

The standard test (the Salmond test) is that the tort is committed in the course of the employee's employment if it is either:

1. a wrongful act authorised by the master; or

2. a wrongful and unauthorised mode of doing some act authorised by the master.

In Lister v Hesley Hall it was held that the unauthorised mode test should not be applied in an excessively literal manner. Instead it should be used merely as a guide. Their Lordships held that the real issue was the "closeness of the connection between the employee's wrongful act and his employment".

The underlying idea is that the injury done to the claimant must be an inherent risk of the employer's employment or characteristic of the employer's business, such that it is just to make him bare the loss.

Frolics, Detours And Incidental Duties.

In Joel v Morrison Parke J stated that an employee acts outside the course of his employment "when embarking on a frolic of his own".

However, the exact extent of this is unclear -- and even cases where the activity concerned was purely for the employee’s personal benefit the act may still be in the course of employment. Thus in Century Insurance V Northern Ireland Road Transport Board where a petrol tanker driver lighted a cigarette when delivering petrol which caused an explosion, his employer was still held vicariously liable as he was still said to be acting in the course of his employment.

In Smith v stages, the House of Lords set out a number of presumptions:

1. An employee travelling to or from work is, in ordinary circumstances, not acting in the course of his employment.

2. Where an employee is required by his job to travel from one workplace to another or from his home to a succession of workplaces and he is paid for travelling, he will usually be acting within the course of his employment.

3. the payment of wages while travelling, or allowing the employee a discretion as to the mode and time travel are factors to be taken into account, but not conclusive of the question of whether or not a person is acting in the course of his employment.

Prohibited conduct.

Expressly forbidding will sometimes but not always result in act outside course of employment.

Whether or not a prohibition takes the employee outside of his course of employment depends on whether it (1) limits the sphere of his employment; or only (2) seeks to deal with conduct within the sphere of his employment: Canadian Pacific Railway v Lockhart.

Generally, prohibitions which merely effect the manner, time or place of performance are not held to affect the sphere of performance and, therefore, breach of the prohibition will not generally take an employee outside of the course of his employment.

Rose – Where milkman was forbidden to allow children to ride on the float by his employer but he did so in employing one to help him out. Court ruled that the ‘in the course of his employment’ idea was wide and here, since he employed child to help out with what he was employed to do it would be within the course. He was doing authorised task in a prohibited manner – thus vicariously liable.

Intentional misconduct.

Where the wrongful act amounts to an intentional tort against a person, then, unless a tort is directed against a person whose care has been entrusted to the employee, it will be...