Vicarious Liability Flashcards
(13 cards)
Justifications for the imposition of vicarious liability:
1) The employer is likely to be in a position to compensate the claimant. To quote Glanville William: ‘a purse worth opening’ or ‘deeper pockets’ than the employee.
2) Tort will have been committed as a result of activity undertaken by the employee on behalf of the employer.
3) The employer by employing the employee has taken the risk of harm occurring, as they gain a benefit from the risk.
4) The employee will have been under the ‘control’ of their employers.
Stages that must be established for a claim in vicarious liability:
1) An employer-employee relationship;
2) A tortuous act…;
3) … committed ‘in the course of employment’.
Employer-employee relationship case:
Various Claimants v Catholic Child Welfare Society and others [2012]
Case brought by 170 men who had been sexually abused by ‘brothers’ of a Catholic group - the Brother of the Christian Schools (‘the Institute’) - who were employed as teachers.
SC held that both the school and the institute were vicariously liable for the abuse. The relationship was ‘akin’ to employment: though no contract existed between the Institute and the Brothers, the vows the robbers gave to the Institute operate in much the same way, and the work the brothers did at the school was at the Institute’s discretion and done in furtherance of the Institute’s mission.
A tortious act case:
Focussed on the connection between the employment relationship and the tortuous action.
Majrowski v Guy’s and St Thomas’ NHS Trust [2006]
Majrowski brought a claim against his employer in respect of harassing by his departmental supervisor. Internal investigation established that the harassment had occurred.
Committed ‘in the course of employment’ case:
Lister v Hedley Hall Ltd [2002]
Mr Grain was a warden at a residential facility attached to a school, looking after vulnerable children. Purpose was to provide a homely and caring setting. He abused a number of boys. Claim was that the employers were negligent in their care, selection and control of the warden.
HoL held that the warden’s actions were ‘so closely connected’ with his employment that it would be fair and just to hold the employers vicariously liable. Although could be described as ‘acts which an employer could not conceivably be employed to do’, the sexual abuse in this case was ‘inextricably interwoven with the carrying out by the warden of his duties.’
Mohamud v Morrison Supermarkets plc [2016]
A petrol station attendant assaulted the claimant (who was of Somali origin) in a brutal and unprovoked attack while at work.
Lord Toulson concluded that: ‘his conduct in answering the claimant’s request in a foul-mouthed way and ordering him to leave was inexcusable but within the ‘field of activities’ assigned to him. What happened to him thereafter was an unbroken sequence of events.’
Two tests (old and new) for vicarious liability:
‘Salmond test’: asked whether the employee’s act was ‘a wrongful and unauthorised mode of doing some act authorised by the master.’
Lister ‘close connection’ test. Easier to state than apply. Prompts the question: how closely connected to their employment do the employee’s actions need to be?
Stephen, Jordan & Harrison v Macdonald & Evans
Court applied the traditional ‘control test’, Lord Denning stated the difference between a contract of service and a contract for services. A contract of service is a work employer as part of the business and his work is done as an integral part of the business (employee), whereas a contract for services, the worker is not integrated to it but is only accessory to it (non-employee).
Viasystems v Thermal Transfer
Viasystems contracted Thermal Transfer to do some work for them. It was twice subcontracted, who then employed a young worker to do the work. Damage was caused, and Viasystems claimed against Thermal Transfer. Court of Appeal held that the defendants were all joint and equally liable, and suggested that the entity which most directly employed the worker was liable first. The measure of control is equal, and so all are equally liable. May LJ notes: “dual vicarious liability should be a legal possibility”.
Cox v MOJ
An unusual relationship can be counted as employment. Prison authorities were legally required to offer work but didn’t necessarily want them. McCombe LJ notes that the work performed by the prisoners was essential to the functioning of the prison, and would have to be done by others if they did not do it, and it was therefore on behalf of and for the authorities’ benefit. Although bound not by contract of service but by their sentences, those differences rendered the relationship if anything closer to employment: found not on mutuality but on compulsion.
Ready Mixed Concrete v Minister of Pensions
Held that an employed under contract of service exists when (1) a person agrees to perform a service for remuneration, (2) a person agrees to subject himself to the control of the company to a sufficient degree to render the company his ‘master’ and (3) the contractual provisions are consistent with an ordinary contract of service.
On the facts, the court held that the driver had sufficient freedom as he was free to decide his vehicle, labour, fuel, etc. In lieu of these freedoms, he was an independent contractor and not an employee under a contract of service.
Mattis v Pollock
An employer can be vicariously liable for assault and battery, even where it is pre-meditated. This was in line with the Lister decision, where an assault is closely linked to the duties of an employee the employer should be held vicariously liable.
Rose v Plenty
Lord Denning held that although prohibited, it was conduct which was within the course of employment and furthered the employer’s business, and so the employer can be held to be vicariously liable.
