Vicarious liability in English law
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|Part of a series on common law|
|English tort law|
Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties.  This liability has expanded in recent years following the decision in Lister v Hesley Hall Ltd  to better cover intentional torts, such as sexual assault and deceit . Historically, it was held that most intentional wrongdoings were not in the course of ordinary employment, but recent case law suggests that where an action is closely connected with an employee’s duties, an employer can be found vicariously liable.  The leading case is now the Supreme Court decision in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools , which emphasised the concept of “enterprise risk”. 
Justification for such wide recovery has been made in several areas. The first is that, as is common in tort law, policy reasons should allow those injured to have means of compensation. Employers generally have larger assets, and greater means with which to offset any losses (deep pocket compensation)  Secondly, it is under the instruction of an employer by which a tort is committed; the employer can be seen to gain from the duties of their employees, and thus must bear the consequences of any wrongdoings committed by them.  Lastly, it has been justified as a way to reduce the taking of risks by employers, and to ensure adequate precautions are taken in conducting business. 
- 1 Developments in establishing liability
- 2 The connection of torts to employment
- 3 Intentional torts of employees
- 3.1 Assault
- 3.2 Theft
- 3.3 Sexual assault
- 3.4 Fraud
- 3.5 Employers and insurers
- 4 See also
- 5 Notes
- 6 References
Developments in establishing liability[ edit ]
An employer is strictly liable for torts committed by those under his command, when they are found to be his employees . To this end, the courts must find a sufficient relationship to this effect, where issues of vicarious liability are raised. It has been stated judicially that no one test can adequately cover all types and instances of employment;   thus, generally, the tests used and ultimate determination rest upon the individual aspects of each case, looking at all the factors as a whole.  For example, it need not matter that an employer classifies a relationship as one of independent contractor, if all the other factors represent a relationship of employee. 
Historical tests centered around finding control between a supposed employer and an employee, in a form of master and servant relationship.  The roots for such a test can be found in Yewens v Noakes ,  where Bramwell LJ stated that:
“…a servant is a person who is subject to the command of his master as to the manner in which he shall do his work.”
The control test effectively imposed liability where an employer dictated both what work was to be done, and how it was to be done.  This is aptly suited for situations where precise instructions are given by an employer; it can clearly be seen that the employer is the causal link for any harm which follows.  If on the other hand an employer does not determine how an act should be carried out, then the relationship would instead be one of employer and independent contractor.  This distinction was explained by Slesser LJ :
|“||It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the contract. The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor. ||”|
Liability for independent contractors was found in Honeywill and Stein Ltd v Larkin Brothers Ltd where photographers hazardously undertook to photograph a theatre interior, and set alight to it.
In recent years, as the duties of employees have grown ever more specialised and far reaching, the control test has seen less primary use in establishing liability.  It is difficult to state for example that a hospital administrator controls the method and actions of a professional doctor , despite liability having been clearly established in such cases.  Different formulations of the test have been proposed, in an attempt to rectify these problems. One such formulation focuses on the ability of an employer to specify where and when tasks be carried out, and with whose tools and materials. 
Other tests of employment have focused on different contractual and external factors. Lord Denning proposed a test based on the integration of an individual to a business or organisation.  Tests based on the economic relationship between an employer and employee have found favour in subsequent cases, notably Market Investigations Ltd v Minister of Social Security ,  in the decision of Lord Cooke . Here, it was argued that where a person was in business on their own account (and at their own risk), they would be under a contract for services, whilst otherwise they would be under a contract of service.  This idea have been cited with approval by the Privy Council ,  with several relevant factors being considered, such as risk of loss, and chance of profit.
As can be noted, liability is generally not extended to the acts of independent contractors.  Though such a distinction has been criticised,  there are several circumstances in which an employer may be liable for the acts of contractors. If an employer commissions a tort,  this will render the employer a joint tortfeasor .  Additionally, where an employer is negligent in selecting a competent third party contractor, liability may be imposed.  The broadest exception however is where a non-delegable duty is imposed upon an employer, either by statute or through common law, to prevent the harm of others.  Where a duty is imposed by statute, either to carry out work in a certain way, or to take due care in carrying out work, then this is non-delegable.  Common law duties may arise in several exceptional circumstances. One such is where an activity is being undertaken which is especially hazardous, and involves obvious risks of damage. This duty was recognised in Honeywill and Stein Ltd v Larkin Brothers Ltd ,  where photographers who negligently photographed the interior of a theatre set alight to the building. Their employers were found vicariously liable, as the dangerous methods of photography created a fire hazard. Additionally, where work is being undertaken on a highway, a non-delegable duty is created not to endanger any road users.  Lastly, occupiers are liable in full where an independent contractor, through negligence, allows fire to spread to neighbouring land. 
The connection of torts to employment[ edit ]
For an act to not hold an employer vicariously liable, it must be completely outside an employee’s duties, as in Beard v London General Omnibus Company .
Once it is established that the sufficient relationship of employer and employee exists, it is necessary that any tort be committed in the course of employment.  As with distinguishing an employer and employee relationship, there is no one test which adequately establishes which acts employers are vicariously liable for. Such determinations rest upon precedent, and the facts of each individual case. A preferred test of the courts was formulated by John William Salmond , some 100 years ago, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised.  The rationale for this is policy based; if an employer could simply issue detailed and long prohibitions on what an employee was not to do, they could never be found vicariously liable for the wrongdoings of their employees.  However, a distinction can be drawn between acts which are prohibited, and acts which take employees out of the course of their employment. An illustration of the test is provided by two contrasting cases, Limpus v London General Omnibus Company  and Beard v London General Omnibus Company ,  both involving road collisions. In the former, a driver pulled in front of another rival omnibus, in order to obstruct it. Despite express prohibitions from the employer, they were found liable; this was merely an unauthorised mode of the employee carrying out his duties (driving), not an entirely new activity.  By contrast, in the latter case, London General Omnibus Company were not liable where a conductor (employed to collect fares on board the bus) negligently chose to drive the vehicle instead; this was completely outside of his duties. 
The surrounding circumstances of wrongdoings are often important in deciding whether an act is in the course of employment or not. For example, where a professional rugby player was expressly prohibited in contract from assaulting another player, it was held that as it had been contemplated by the drafters, such an act was in the course of his employment.  Where in Century Insurance Co v Northern Ireland Road Transport Board  an employee set alight to a petrol station , by throwing a match carelessly away while refuelling a petrol tanker, this was adjudged to have been in the course of his employment.
There have been contrasting judgments where employees have given lifts in their vehicles, during hours of employment, as to whether their employers can be vicariously liable. Two similar cases demonstrate this problem. The first, Conway v George Wimpey & Co Ltd  involved a driver, who, despite express prohibitions, gave a lift to an employee of another firm, and negligently injured him in an accident.  No liability was imposed on the employer, as this was deemed to be an activity outside of the employee’s duties. This can be compared to Rose v Plenty ,  where liability was imposed where a small boy was injured in a road accident, while helping a milkman on his rounds. It has been stated that these two decisions are not reconcilable.  However, Lord Denning offered some justification in Rose v Plenty for the distinction, stating that the employee, in allowing the boy to assist him, was not acting outside of his employment, but acting in furtherance of it (through the boy assisting his duties). 
|“The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.” |
|Joel v Morison  EWHC KB J39|
Additional problems have arisen when attempting to establish where detours and leave from duty take an employee out of the course of his employment.  One idea which is used in this area is that an employer will only be found liable where an employee is going about his business in a standard way. For example, a minor detour would not take an employee out of the course of his employment, but a ‘frolic of his own’, which did not at all involve his duties, would.  Journeys to and from work, and whether these are regarded as in the course of employment, were considered in Smith v Stages,  where Lord Lowry established several factors for determining liability. Ordinarily, employees will not be in the course of employment travelling to and from work, unless their transport is provided by their employer.  However, travelling to an alternative place of work or to a workplace, during the employer’s time, will be in the course of employment.  Where course of employment generally begins with travelling to work has been established in the case of Compton v McClure.  Here, an employer was found liable for the negligent driving of an employee, who, in an effort to clock in on time, injured another employee at the place of employment.  It was stated that the ‘least artificial place’ to establish employment began was at the gates of the employer’s factory, where they established speed limits, and supervised conduct. 
Intentional torts of employees[ edit ]
Historically, most actions alleging vicarious liability for intentional torts failed, primarily on the grounds that no employer employs an individual to be dishonest, or to commit crimes.  This was the view taken with regard to most intentional torts, with several exceptions. Morris v CW Martin & Sons Ltd ,  for example establishes vicarious liability of thefts by an employee, where there is a non-delegable duty to keep the claimant’s possessions safe.  However, the scope of such liability was limited to torts committed in the course of employment, under the second limb of Salmond’s course of employment test. This precluded recovery for torts committed while an employee was not involved in the furtherance of his employer’s business. The importance vested in Salmond’s test was not reconsidered until Lister v Hesley Hall Ltd , a case involving vicarious liability for sexual abuse. In following the ratio decidendi of the Supreme Court of Canada in the case of Bazley v Curry ,  the House of Lords established a newer test for finding liability in cases of intentional torts; where a tort committed by an employee is closely connected to their duties, their employer may be found liable.  Although of undoubted greater use to claimants, the judicial latitude given to this test has been occasionally regarded as questionable.  Lord Nicholls has stated that a “lack of precision is inevitable given the infinite range of circumstances where the issue arises.” 
Assault[ edit ]
Liability for assault has been found much more readily than other intentional torts, as in Smith v North Metropolitan Tramways Co .
Unlike other intentional torts, which tend to be premeditated , liability for assault has been found in several cases prior to Lister v Hesley Hall Ltd. Poland v Parr & Sons  involved an employee who assaulted a boy, believing him to be attempting to steal his employer’s goods. Vicarious liability was imposed based on the employee’s implied authority to protect his master’s goods.  Liability was also found where a tram conductor – in his duties – pushed a passenger out a tram, after he had not paid his fare.  However, assault involving personal vengeance and spite was generally not found to result in liability, as in Warren v Henlys Ltd.  This represents a principal limitation of the previous position of liability: only where an act was in the course of employment could an employer be liable. Premeditation and personal motive would take an employee out of their course of employment, breaking liability.  The establishment of the close connection test has produced different results in cases of intentional assault, as demonstrated in Mattis v Pollock .  Here, a bouncer for a nightclub was involved in a dispute with a customer. He subsequently went home and returned with a knife, stabbing the customer, resulting in serious injuries. The employer was held liable, despite the bouncer’s intent on revenge, due to the close connection of the tort to the bouncer’s employment and duties. It was of particular importance that the bouncer was employed to act in an aggressive and tough manner. 
Theft[ edit ]
As noted, liability for theft has been found not primarily under the principles of course of employment, and vicarious liability, but via a non-delegable duty of employers to ensure that a third party’s goods are kept safe. 
Morris v CW Martin & Sons Ltd , involving an employee who stole a fur coat from a dry cleaners, saw the establishment of this principle, with Lord Denning stating:
|“||Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show – and the burden is on him to show – that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty. ||”|
Vicarious liability for theft has also been found due to poor selections of employees by an employer, as in Nahhas v Pier House Management.  Here, the management company of a luxury block of flats employed a porter, who was an ‘ex-professional thief’, to manage their building. A tenant of the building entrusted him with her keys, and was subsequently robbed of expensive jewellery.  The management company were found to have been negligent in hiring the porter, having not carried out sufficient checks on his background, address, or obtaining a written reference. It has been stated it is unlikely that as a general rule, where there are proper checks and systems to prevent such incidents, liability would be found; it is in the interests of society to allow rehabilitation of offenders. 
Sexual assault[ edit ]
Until recently, it was not considered that an employer could be vicariously liable for sexual assault, despite the particular vulnerability of children, and special care that must be taken in selecting employees.  The Court of Appeal held in T v North Yorkshire CC  that a headmaster’s sexual abuse of children on a field trip was not within the scope of his employment, a previous criteria for an employer to be found vicariously liable.  This rule was reversed in the shortly following case of Lister v Hesley Hall Ltd , effectively establishing liability for sexual assault, where it is closely connected with an employee’s duties. Here, a warden of a boarding house sexually abused several children over the course of three years. Initially it was held (under the precedent of T v North Yorkshire CC) that such acts could not have been in the course of his employment. However, the House of Lords overruled the earlier case, with Lord Steyn stating:
|“||The reality was that the county council were responsible for the care of the vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. And the sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment. The connection between the employment and the torts was very close. ||”|
In overruling T v North Yorkshire CC, the Lords established that the relative closeness connecting the sexual abuse and the warden’s duties established liability.  It was of importance however that the warden’s duties were closely linked to the abuse. The mere opportunity to abuse children was not the reason for liability; it has been suggested that if it were a groundsman who had carried out the abuse, it would not have resulted in liability. 
Fraud[ edit ]
Employers have been responsible for the fraudulent misrepresentations of their employees since the mid-nineteenth century, under the decision of Barwick v English Joint Stock Bank .  This liability was extended in the early 20th century, to cover fraudulent actions which were not of benefit to the employer, a previous requirement.  Thereupon, the test for vicarious liability of fraud was whether it was within an employee’s authority – either actual, or outwardly appearing – to carry out the fraudulent actions that he did.  It was not enough that an employee merely asserted that he had supposed authority, however; the defrauded individual or company must have been assured or led to believe by the employer – or have inferred through standard dealings – that the employee in question had it. 
As with other intentional torts, such liability was extended following Lister v Hesley Hall Ltd, to cover any fraud which is closely related to an employee’s employment. The first case of fraud to be decided under this authority was Dubai Aluminium Co Ltd v Salaam ,  involving the fraud of a senior partner in a firm of solicitors . The House of Lords chose to extend the principal liability of employers, to cover fraudulent representations made by employees with no actual or ostensible authority to make them.  Here, despite the employer having made no representations to the claimants, it was found that the close connection between the partner’s fraud and his duties established liability.
Employers and insurers[ edit ]
Lister v Romford Ice and Cold Storage Co  created a controversial principle at common law , that where an employer is found vicariously liable for an employee’s actions, they are entitled to recover an indemnity from them, to cover such losses.  The House of Lords accepted by a narrow margin that there may be an implied term in the contracts of employees, by which they must exercise reasonable care and skill in their work. Such principles has received both criticism and support, for various reasons. Advocacy of the indemnity features on rules of principal liability; the person to commit a tort and to cause damage should pay damages arising from it.  Critics state that the recovery of an indemnity is contrary to equity, due to the general lack of wealth of employees and servants.  The advent of widespread insurance of employers has led to the recovery of indemnities being widely abandoned. This is illustrated by the British Insurance Association entering into a gentlemen’s agreement not to utilise the rule:
“Employers’ Liability Insurers agree that they will not institute a claim against the employee of an insured employer in respect of the death of or injury to a fellow-employee unless the weight of evidence clearly indicates (i) collusion or (ii) wilful misconduct on the part of the employee against whom a claim is made.” 
As such, indemnities are not pursued from employees. The decision in Lister was eventually reversed by the dicta of Lord Steyn in Williams v Natural Life Health Foods Ltd .
See also[ edit ]
- English tort law
- Vicarious liability
Notes[ edit ]
- ^ a b Markesinis, Johnston, Deakin, p. 665
- ^ Lister v Hesley Hall Ltd  1 AC 215
- ^ Steele, p. 578
- ^  UKSC 5
- ^ Steele, p. 567
- ^ Flannigan, p. 26
- ^  2 QB 173, p. 184
- ^  ICR 365, p. 369
- ^ Cooke, p. 463
- ^ Ferguson v John Dawson & Partners (Contractors) Ltd  1 WLR 1213
- ^ a b Markesinis, Johnston, Deakin, p. 668
- ^ Yewens v Noakes (1880) 6 QBD 530
- ^ Flannigan, p.31
- ^ a b Flannigan, p. 38
- ^  1 KB 191, p. 196
- ^ Gold v Essex County Council  2 KB 293
- ^ Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance  2 QB 497
- ^ Stevenson Jordan & Harrison v McDonnell & Evans  1 TLR 101
- ^ Market Investigations Ltd v Minister of Social Security  2 QB 173
- ^ Markesinis, Johnston, Deakin, p. 671
- ^ Lee Ting Sang v Chung Chi-Keung  IR LR 236
- ^ Markesinis, Johnston, Deakin, p. 695
- ^ a b McKendrick, p. 770
- ^ Ellis v Sheffield Gas Consumers Co (1853) 2 E & B 767
- ^ Markesinis, Johnston, Deakin, p. 696
- ^ Pinn v Rew (1916) 32 TLR
- ^ Gray v Pullen (1864) 5 B&S 970
- ^ Honeywill and Stein Ltd v Larkin Brothers Ltd  1 KB 191
- ^ Penny v Wimbledon Urban District Council  2 QB 212
- ^ Johnson v BJW Property Developments Ltd  EWHC 1131
- ^ Markesinis, Johnston, Deakin, p. 678
- ^ Heuston, R.E.V.; Buckley, R.A. (1996). Salmond and Heuston on the Law of Torts. Sweet & Maxwell. ISBN 0-421-53350-1 .
, p. 443
- ^ Markesinis, Johnston, Deakin, p. 683
- ^ Limpus v London General Omnibus Company (158 ER 993
- ^ London General Omnibus Company  2 QB 530
- ^ 158 ER 993, p. 999
- ^  2 QB 530, p. 534
- ^ Gravil v Carrol  EWCA Civ 689
- ^ Century Insurance Co v Northern Ireland Road Transport Board  AC 509
- ^ Conway v George Wimpey & Co Ltd  2 KB 266
- ^  2 KB 266, p. 268
- ^ Rose v Plenty  1 WLR 141
- ^ Cooke, p. 434
- ^  1 WLR 141, p. 144
- ^ EWHC KB J39, at 5
- ^ Markesinis, Johnston, Deakin, p. 685
- ^ Joel v Morison  EWHC KB J39
- ^ Smith v Stages  AC 928
- ^ a b  AC 928, p. 956
- ^ Compton v McClure  ICR 378
- ^  ICR 378, p. 379
- ^  ICR 378, p. 388
- ^ Markesinis, Johnston, Deakin, p. 687
- ^ Morris v CW Martin & Sons Ltd  1 QB 716
- ^  1 QB 716, p. 732
- ^ Bazley v Curry (1999) 174 DLR
- ^ a b  UKHL 22, at 24
- ^ Murphy, John (2007). Street on Torts. Oxford University Publishing . ISBN 0-19-929166-7 ., p. 613
- ^  UKHL 48, at 26
- ^ Poland v Parr & Sons  1 KB 236
- ^  1 KB 236, p. 242
- ^ Smith v North Metropolitan Tramways Co (1891) 55 JP 630
- ^ Warren v Henlys Ltd  2 All ER 935
- ^ Weekes, Robert (2004). “Vicarious liability for violent employees”. Cambridge Law Journal. Cambridge University Press. 63 (1)., p. 53
- ^  1 WLR 2158
- ^ Steele, p. 587
- ^ Devonshire, Peter (1996). “Sub-bailment on terms and the efficacy of contractual defences against a non-contractual bailor”. Journal of Business Law. Sweet & Maxwell (July)., p. 330
- ^  1 QB 716, p. 726
- ^ Nahhas v Pier House Management  1 EGLR 160
- ^  1 EGLR 160, p. 160
- ^ Markesinis, Johnston, Deakin, p. 688
- ^ This notion was reflected upon by Lord Steyn during his judgment of Lister v Hesley Hall Ltd,  UKHL 22, at 25
- ^ T v North Yorkshire CC  LGR 584
- ^ Markesinis, Johnston, Deakin, p. 690
- ^  UKHL 22 , at 25
- ^ Levinson, Justin (2005). “Vicarious liability for intentional torts”. Journal of Personal Injury Law. Sweet & Maxwell (4)., p. 305
- ^ Barwick v English Joint Stock Bank (1866-67) LR 2 Ex 259
- ^ Lloyd v Grace, Smith & Co  AC 716
- ^ a b Markesinis, Johnston, Deakin, p. 689
- ^ per Lord Keith , in Armagas Ltd v Mundogas SA  AC 717, pp. 781-782
- ^ Dubai Aluminium Co Ltd v Salaam  UKHL 48
- ^ Lister v Romford Ice and Cold Storage Co  AC 555
- ^ Williams, p. 220
- ^ Markesinis, Johnston, Deakin, p. 694
- ^ Williams, p. 221
- ^ Morris v Ford Motor Co Ltd  QB 792, at 799
References[ edit ]
- H Laski , ‘Basis of Vicarious Liability’ (1916) 26 Yale Law Journal 105
- Flannigan, Robert (1987). “Enterprise Control: The Servant-Independent Contractor Distinction”. The University of Toronto Law Journal. University of Toronto Press. 37 (1).
- McKendrick, Ewan (1990). “Vicarious Liability and Independent Contractors: A Re-Examination”. The Modern Law Review. Blackwell Publishing . 53 (6).
- Williams, Glanville (1957). “Vicarious Liability and the Master’s Indemnity”. The Modern Law Review. Blackwell Publishing. 20 (3).
- Cooke, John (2005). Law of Tort. Longman . ISBN 1-4058-1229-X .
- Deakin, Simon; Johnston, Angus; Markesinis, Basil (2007). Markesinis and Deakin’s Tort Law. Oxford University Press . ISBN 0-19-928246-3 .
- Steele, Jenny (2007). Tort Law: Text, Cases, & Materials. Oxford University Press . ISBN 0-19-924885-0 .
- English tort law
- Public liability
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Tort Vicarious Liability
‘It is entirely appropriate that all businesses be responsible for the torts of their employees’.
Vicarious liability is where one person is held liable for the torts of another, even though that person did not commit the act itself. It is therefore a form of strict liability (in that the defendant is not at fault). The most common form of vicarious liability is when employers are held liable for the torts of their employees that are committed during the course of employment. The issue of vicarious liability can be seen to be unjust in that someone who is not at fault can be held liable.
Vicarious Liability Case Summaries
Looking for Vicarious Liability Case Summaries? We have a selection of case summaries on the subject of vicarious liability here >
In order to establish liability on the part of the employer, several requirements must be satisfied. Firstly, the wrongdoer must be an employee (as opposed to an independent contractor), the employee must have committed a tort and the tort must have been committed in the course of employment.
Over the years, the courts have been highly inconsistent in relation to the decisions they have made in this area of tort law, making it difficult to establish whether the use of vicarious liability is entirely appropriate.
One problem in particular the courts have had is in determining what constitutes the classification of an employee. This is partly due to there being so many different employment relationships. One of the early tests to determine this issue was the Control Test which asked whether the ‘Master’ had the right to control what was done and the way it was done. However, this test was seen to be inappropriate, except perhaps in cases of borrowed workers, as in Merseyside Docks & Harbour Board v Coggins and Griffiths. The courts then recognised that a single test was not enough to determine employment status so the courts developed a multiple test in Ready Mixed Concrete v Minister of Pensions, whereby all factors in the relationship should be considered. All tests are open to interpretation and there is no conclusive or definitive test; in the case of Hall v Lorimer the Court of Appeal said no single test is absolute.
This difficulty in determining who shall be classed as an employee backs up the argument that imposing vicarious liability is not entirely appropriate.
However, in certain situations the courts have clarified the position with regard to some workers; in Cassidy v Ministry of Health it was held that doctors are employees and in Netheremere Ltd v Taverna & Gardiner it was held that outworkers (people who work from home) could be classed as employees if they are doing the same work as those in the workplace.
Some workers have been identified as not falling within the definition of employee e.g. apprentices and trainees (Wilshire Police Authority v Wynn). This means that victims are not compensated, which seems unjust especially since the apprentice is carrying out activities associated with the employer.
An employer will only be liable for the torts of their employees if they are committed during the course of employment rather than, as the courts put it, ‘on a frolic of his own’ (Storey v Ashton). This is another area of vicarious liability that the courts have found particularly difficult to agree on. The traditional test for determining this is the Salmond test which states that a tort will be committed in the course of employment if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master.
The second limb of this test brings about unfairness, as even when the employee’s conduct has been expressly prohibited by the employer, if the act itself is authorised then the employer will still be liable (Limpus v London General Omnibus Co). On the other hand, it would seriously undermine the operation of vicarious liability if an employer was able to avoid liability simply by forbidding their employees from doing certain acts.
This test was also criticised on the basis that it had clearly been devised to cover only negligent acts of an employee and therefore did not consider intentional torts.
However, this restrictive test was largely improved after the decision of the House of Lords in the controversial case of Lister v Hesley Hall, where a warden sexually abused young boys at the home where he was employed to look after them. The House of Lords held in this case that an employer would be vicariously liable for an employee’s tort if there was ‘a close connection with the employment’.
The crucial issue here is whether the connection between the work and the tort is sufficiently close or whether the job has merely provided the opportunity to commit the tort. In Lister, the warden’s job was to take care of the boys and supervise them, so because the abuses occurred when he was in charge of them, it was held to be a close connection. Lord Hobhouse gives an example that if a groundsman employed by the school had done as the warden had, he would have been outside the course of employment because ‘he was employed to look after the grounds, not to have anything to do with the boys’.
In his journal article ‘Making a Connection’, Charlies Pigott wrote that ‘Lister broke new ground because the Court of Appeal had decided a few years earlier, in Trotman v North Yorkshire County Council, that no vicarious liability could attach for sexual abuse because it could not be regarded in any sense as a mode of carrying out the employee’s duties’. The decision in Lister therefore widened the scope of this area of law by making it easier to find an employer liable for the torts of their employees, effectively and perhaps appropriately lowering the number of victims going uncompensated.
This decision has been followed in several other cases, including Mattis v Pollock and the 2010 case of Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church, which involved a priest’s sexual abuse of a young boy.
It is unclear whether the ‘close connection’ test will replace the Salmond test or be restricted to cases where an employee has engaged in criminal conduct. According to Mullis and Oliphant ‘whatever test is chosen, it is likely to remain a very difficult question in many cases whether conduct is or is not within the scope of employment; much will depend in the end on whether in all the circumstances the court thinks the employer ought to be held liable.’ This idea of making decisions on a case by case basis has thrown the law on vicarious liability into major uncertainty.
However, this new principle does provide a means of achieving justice in those cases in which the traditional approach proves problematic.
Problems also arise with regard to unauthorised lifts contrary to instructions as in Rose v Plenty. It does not seem appropriate that even when the employer prohibits the activity, he is still held liable if the act was beneficial to him. However, if the employer does not benefit from the act then he may not be liable, as in Twine v Bean’s Express. This shows that there is a very fine line between what does and does not attract vicarious liability, causing confusion and uncertainty.
There are, however, some justifications for the imposition of this tort. As pointed out by Atiyah, the principle of vicarious liability needs to be justified, as holding someone liable for the acts of another is contrary to English law in that people should only be liable if they are at fault.
One justification is that the purpose of employment is to allow the employer to benefit from the employee’s work and so it seems feasible that the employer should bear the consequences. If there were no vicarious liability, then there would be no incentive for employers to minimise risks and increase standards of safety in the working environment.
The courts also view the imposition of vicarious liability as just due to the employer having a degree of control over his employees and has the ultimate power of dismissal, so they should ensure that employees do not carry out their work in a careless way. However, this is now seen to be outdated as many employees perform skilled tasks that the employer may not understand (Cassidy v Ministry of Health).
Furthermore, in ICIvShatwell, Lord Pearce stated that vicarious liability is essentially a matter of public policy and social convenience, as an employer will generally be in a better financial position than his employees and so they are more able to meet the cost of claims. This so-called ‘Deep Pockets Theory’ states that not only do employers have more money, they also hold insurance. In addition to this, employers can distribute any losses they bear to the consumer by increasing prices of products or services.
Recently, however, reasoning has now moved towards the idea that the employer has created the relevant risk of harm in the first place by employing the wrongdoer. But as Claire MvIvor states, ‘if the courts continue to rely alone on the basic notion of risk creation, then it will be difficult to impose any kind of limit on the operation of the doctrine of vicarious liability’.
In conclusion, the concept of vicarious liability is a very complex issue, as it is torn between trying to protect the right of the victim to gain sufficient compensation and trying to protect the employer from being overburdened by their employees.
Although it goes against the principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability seems appropriate as it does serve a useful purpose; it contributes to the maintenance of safety standards and it enables the victims of negligence by employees to be reasonably certain that someone will be in a position to pay them compensation.
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Torts 212 – Vicarious Liability
• Deeper pocket, better position to bear the loss
• Employer profiting from the employees conduct so if those actions resulted in harm then they have some responsibility to pay
• Employer able to predict accidents (from experience) then get insurance and factor it into cost
2. Unauthorised acts are so connected with authorised acts that they may be regarded as modes (albeit improper modes) of doing an authorised act
–>Salmond test all shook up by Canadian courts in 1999 and UKHOL in 2001
2. Fundamental question is whether the wrongful act is sufficiently related to conduct authorised by the employer. Vicarious liability is appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom
3. When determining the sufficiency of the connection between the employer’s creation of the risk and the wrong complained of – subsidiary factors should be considered. They will vary depending on the case but could include
i. The opportunity that the enterprise afforded the employee to abuse his/ her power
ii. The extent to which the wrongful act may have furthered the employer’s aim (and hence be more likely to have been committed by the employee
iii. Extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s exercise
iv. The extent of power conferred on the employee in relation to the victim
v. The vulnerability of potential victims to wrongful exercise of the employee’s power
• In cases where there has been sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do and the wrongful act
• Foundation liable
• Dealing with adults
• Brian has much less power over the residents, not in a role requiring intimacy
• Doesn’t live there
But similar to Bazley because
• Students are vulnerable, hall is meant to be a supporting safe place to adjust to uni life
2. There are some especially hazardous activities which are non-delegable e.g. would remain liable if bringing a contractor onto land to do some blasting
3. Distinguish between employee who is in the course of his or her employment and an employee on his/ her own tie, or who is on a "frolic and detour" – an employee who has a cigarette while delivering petrol is still in the course of employment
4. Even if the employer says to the employee as he is leaving the motor pool "be sure you do not smoke while on duty", the employer would still be liable
5. Employee is still potentially liable for their own torts e.g. insurance can sue the employee after paying out third party damages. Could sue for breaking an implied term of the contract not to damage employer’s property
Deal with it as a sui generis rule applying only in the context of foster parents
Foster parents are agents of the state so can be held vicariously liable
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