2B.5.1 Vicarious liability

Question 1

Vicarious Liability (VL)

Answer 1

Where 1 person can be held liable for the torts of another.

Question 2

Parties in VL

Answer 2

• Tortfeasor (T)
• Claimant (C)
• Defendant (D)

Question 3

Tortfeasor (T)

Answer 3

The person who committed the tort.

Question 4

Claimant (C)

Answer 4

The person who suffered the tort.

Question 5

Defendant (D)

Answer 5

The person liable for the tort.

Question 6

The Salmond Test

Answer 6

Vicarious Liability is established if:
1) Tortfeasor (T) commits an unintentional tort
2) Tortfeasor is an employee
3) The tort happens in the course of employment

Question 7

Was an unintentional tort committed by the tortfeasor?

Answer 7

A negligent act needs to be committed by the tortfeasor.

Question 8

Who is an employee?

Answer 8

There are three tests used to determine if the tortfeasor is an employee.
1) Control test
2) Integration test
3) Economic reality test

Question 9

1 - Control test

Answer 9

Whether the employer has control over the tortfeasor.

Cases:
* Mersey Docks
* Hawley

Question 10

Mersey Docks

Answer 10

Crane driver (T) worked for Mersey Docks/Harbour Board (D1) and hired T out to Coggins (D2). T negligently injured someone (C). Case to decide who is VL for T’s act
Held: The permanent employer was presumed liable. Contract is not decisive Decision took into account that T was hired out with D’s equipment.

Question 11

Hawley

Answer 11

Bouncer (T) worked for agency (D1) and was hired to nightclub (D2). T assaulted customer (C ). Agency went bust. Nightclub was VL due to the control they had over T’s work.

Question 12

2 – Integration test

Answer 12

Whether the employee is integral to the employer (D).

Question 13

3 – Economic Reality Test

Answer 13

Looks at reality of the situation and weighs up multiple factors, including:
- Uniform
- Equipment
- Branding
- Contract
- Wage/skill
- Payment method
- Independence / ability to turn down work

Case: Ready Mixed Concrete (RMC).

Question 14

What is in the course of employment?

Answer 14

There are five exceptions to acts being in the course of employments.
1) Against Orders
2) Outside employment
3) Criminal Acts
4) Negligent Acts
5) Frolics

Question 15

[Course of employment]

Cases for against orders

Answer 15

• Limpus v London General
• Rose v Plenty
• Twine v Beans Express

Question 16

[Course of employment - Against orders]

Limpus v London General

Answer 16

Bus driver (T) told not to race bus by employer (D). Bus crashed. C claimed against employer as T was doing what employed to do, even if against orders

Question 17

[Course of employment - Against orders]

Rose v Plenty

Answer 17

Milkman (T) told not to use children (C ) on rounds by Dairy. C injured. Dairy VL as they benefitted from what T was doing.

Question 18

[Course of employment - Against orders]

Twine v Beans Express

Answer 18

Driver (T) told not to give lifts by employer. Notices on vans. Employer was not VL as gaining no benefit from what T did.

Question 19

[Course of employment]

Case for outside employment

Answer 19

• Beard

Question 20

[Course of employment - Outside employment]

Beard

Answer 20

Bus conductor (T) drove bus outside work, injured C. Employer not liable

Question 21

[Course of employment]

Case for criminal acts

Answer 21

• Lister

Question 22

[Course of employment - criminal acts]

Lister

Answer 22

Warden (T) worked in school, Hesley Hall (D). Sexually assaulted vulnerable children (C). D liable as close connection. The children were abused at the school while he was employed

Question 23

[Course of employment]

Case for negligent acts

Answer 23

• Century Insurance

Question 24

[Course of employment - Negligent acts]

Century Insurance

Answer 24

Petrol tanker driver (T) threw lit cigarette to ground causing explosion. Employer liable as T was doing job, albeit negligently

Question 25

# [Course of employment] Frolics

Answer 25

- Hilton

Question 26

# [Course of employment - Frolics] Hilton

Answer 26

T’s went to a café for tea in work van. Crash on way back. Employer not liable as this was a ‘frolic’.

Question 27

Akin to employment

Answer 27

Lord Phillips 5 criteria if fair, just and reasonable to find a relationship akin to employment and impose vicarious liability: (i) Employer more likely to have means to compensate C than employee and expected to have insurance; (ii) Tort committed as a result of activity being taken by the employee on behalf of the employer; (iii) Employer’s activity is likely to be part of the business activity of the employer; (iv) By employing the employee to carry on the activity, employer will have created the risk of the tort committed by the employee; and (v) Emp will, to a greater or lesser degree, have been under the control of the employer.

Question 28

Key cases for VL

Answer 28

* Lister v Helsley Hall (2002) * Various Claimants v Catholic Child Welfare Society (2012) * Cox v Ministry of Justice (2016) * Mohamud v WM Morrisons Supermarkets plc (2016)

Question 29

Various Claimants v Catholic Child Welfare Society (2012)

Answer 29

Members of a school/institute sexually abused pupils at the school where they were employed. Legal principle: Was the relationship between the Institute and its members akin to an employer and employee relationship? and was the sexual abuse connected to that relationship in such a way as to give rise to vicarious liability?

Question 30

Cox v Ministry of Justice (2016)

Answer 30

Prisoner (T) working in kitchen dropped bag of rice on his managers (C) back. MoJ Liable. Held: VL because the activities carried out were being done for the benefit of the employer. The Supreme Court recognised that today many workers may, in reality, be part of the workforce of an organisation without having a contract of employment with that organisation (even prisoners!).

Question 31

Mohamud v WM Morrisons Supermarkets plc (2016)

Answer 31

It was held the court has to consider: 1) The nature of his job 2) Whether there was sufficient connection between the position in which he was employed and his wrongful conduct.