#15671 - Vicarious Liability - Tort Law

VICARIOUS LIABILITY AND NON-DELEGABLE DUTIES

D = employer; X = employee

VICARIOUS LIABILITY

Vicarious liability is where an employer is liable for the actions of their employee. There are three requirements: (i) a tort; (ii) committed by D’s employee; (iii) in the course of his employment.

Element 1: Employer / employee relationship

Standard contracts of employment:

• Traditional test: for an employment relationship is one of control: did the D control both what X did and how she did it —Cassidy v Ministry of Health [1951]

• The strict control test is no longer relevant —inappropriate for highly skilled employees (e.g. an employer couldn’t tell a doctor what to do). Now one of a number of factors.

• Composite test: set out in Market Investigations [1969] involves taking an overview of a number of different aspects of the relationship: Cooke J: a woman who did time-to-time surveys was an employee: “fundamental test to be applied is this: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account?'. If the answer is 'Yes', then the contract is a contract for services. If the answer is 'No', then the contract is a contract of service"

• Factors common to an employee: (i) integrated into the business; (ii) paid a regular wage; (iii) has tax and benefit provisions; (iv) supplied with tools, uniform, vehicle; (v) works at a regular time / place.

• Factors common to an independent contractor: (i) has no ‘interest’ in the ‘employer’s business’; (ii) is paid by the job done; (iii) does not have tax / benefit provision; (iv) supplies his own tools, uniform / vehicle; (v) works at a regular time / place.

• Residual control test: E v Lady of Charity: Ward LJ: “the question of control should be viewed in a wider sense than merely inquiring whether the employer has the legal power to control how the employee carries out his work. It should be viewed more in terms of whether the employee is accountable to his superior for the way he does the work so as to enable the employer to supervise and effect improvements in performance and eliminate risks of harm to others.”

No contract, but relationship is ‘akin to employment’:

• E v The English Province of Our Lady of Charity [2012]: Priest was said to have abused a young girl — was an employee, independent contractor? Ward LJ: although there was no contract of employment, the relationship was “akin to employment”

• In establishing such a relationship need to look to: (i) control by the D of X; (ii) control by the X of himself; (iii) how central was the X’s activity to the business; (iv) whether the activity was integrated into the organisational structure of the enterprise; and (v) whether X was in business on his own account.

• Fairness was a factor here —it was fair to find the priest an employee because it struck the proper balance between unfairness to the employer in imposing strict liability and unfairness to C, who would be otherwise left without a full remedy for the harm caused.

• Various Claimants v Catholic Child Welfare Society [2012] Brothers of a catholic order lived a communal life, followed a hierarchical structure, and renounced salaries payable for their teaching work. In return the institute met all the brothers’ needs. Was the diocese liable for over 200 claims of sexual abuse by brothers. SC: yes —“the relationship … had all the essential elements of the relationship between employer and employees.”

  • Lord Phillips: vicarious liability will be imposed where it is FJR to do so, based on the following policy factors: (i) D is more likely to be insured / able to compensate C than X; (ii) the tort has been committed as the result of X’s activities on behalf of D; (iii) X’s activity is part of D’s business activity; (iv) D’s employment of X to conduct an activity increased the risk of the tort being committed by X; (v) X will have (to a residual extent) been under D’s control.

• Cox v Ministry of Justice [2016]: C (catering manager in a prison) was injured by the negligence of a prisoner in the course of a ‘prison job’ (X dropped a bag of rice on C’s back). Was the MOJ vicariously liable for C’s injury. SC: approved Lord Phillips test in Various Claimants to find X was an employee —Lord Reed noted the essential factors were: (i) tort committed as a result of an activity undertaken by X on behalf of D; (ii) activity was integral to D’s business activities; (iii) D, by employing X to carry out the activity, had created the risk of the tort being committed by X.

  • These criteria generally ensure that liability is imposed where it is FJR to do so, but a further fairness enquiry might be necessary where the test is applied to novel facts.

  • “The general approach which Lord Phillips described … is intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment.” It recognises that, in modern work places, “workers may in reality be part of the workforce of an organisation without having a contract of employment with it.”

Borrowed employees: X is technically employed by D1 but works for D2 on a day-to-day basis in practice. Both D1 and D2 can be vicariously liable:

• Viasystems [2005]: Viasystems claimed damages for a flood, caused when Thermal Ltd l installed air conditioning in their factory. Via a chain of subcontracts, the work was conducted by X who caused the flood.CA: thermal Ltd were liable. The burden of showing vicarious liability has shifted from D1 to D2 is ‘heavy’ and falls on D1. It was possible, as here, for there to be dual and equal liability, but this will be unlikely to occur where one employer is at fault for X’s tort. Rix LJ: need to ask whether X was “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?”

Element 2: was the tort committed in the course of employment?

Obvious where X’s tort was committed as part of an act authorised by D. Key issue is in relation to prohibited / unauthorised acts.

Close connection test:

• Bazley v Curry [1999] (SC Canada): vicarious liability will be appropriate where there is a close connection between the creation / enhancement of the risk of harm by an employer and the wrong that flows from that risk, even if the wrong is entirely unconnected to D’s purposes / desires (as in the child abuse cases).

• This test was applied in Lister v Hesley Hall [2001] X, a warden at a boarding house for troubled teens, sexually abused boys in his care. HL: Lord Steyn noted the following principles: (i) in considering the scope of employment, a broad approach should be adopted; (ii) the time / place at which the acts occurred will always be relevant, but may...