Vicarious Liability Flashcards
1
Q
What is vicarious liability? When does it mostly arise?
A
- It is the term used to explain the liability of one person for the tort of another
- Mostly arises in employment when an employer might be liable for the torts of their employees
2
Q
Someone is only liable under vicarious liability if what two questions are satisfied?
A
- Was the tortfeasor an employee of the defendant?
- Was what they did committed in the course of their employment?
3
Q
What three things are needed of the tortfeasor for their employer to be liable?
A
- They must be an employee of the defendant
- They must be acting in the course of their employment
- They must have committed a tort
4
Q
What three tests have the court established to determine if a person is an employee or not?
A
- Control test
- Organisation test
- Economic Reality test
5
Q
In what case was the control test established?
A
- Yewen v Noakes (1880)
6
Q
What does the control test consider? Is it old? What concept does it use?
A
- Considers whether the employer has the power to control the nature of work done and how it is done
- Old test
- Uses the concept of master-servant relationships
7
Q
Why was the man in Yewen v Noakes (1880) held not to be an employee?
A
- The owner of the building had no right to control the man’s work and the manner in which it was done
8
Q
What was identified in Short v JW Henderson Ltd (1946)? What did these include (4)?
A
- Key features that would show that the master had control over the defendant
- The power to select the servant
- The right to control the method of working
- The right to suspend and dismiss
- The payment of wages
9
Q
Is the control test easy to apply? In what cases is it still useful?
A
- It is virtually impossible to apply in modern circumstances
- Still useful in cases such as those of borrowed workers
10
Q
What case established the organisation test?
A
- Stevenson, Jordan & Harrison Ltd v MacDonald & Evans (1952)
11
Q
What does the organisation test rely on?
A
- A distinction between a contract of service and a contract for service
12
Q
What is the basis of the organisation test?
A
- To ask who is entitled to tell the employee the way in which they are to do their work. It is not enough that the task being performed should be under their control; they must control the method of performing it
13
Q
According to the organisation test, what are three examples of an employee? What are three examples of a non-employee?
A
- Employee = master of a ship, chauffeur, reporter on the staff of a newspaper
- Non employee = pilot bringing a ship into port, taxi driver, freelance writer
14
Q
The organisation test can work well in some circumstances, but there are still defects. Give an example
A
- Part-time examiners may be classed as employees for tax purposes, but it is unlikely that the exam board would be happy to pay redundancy when their services are no longer needed
15
Q
In what case was the economic reality test developed?
A
- Ready Mixed Concrete v Minister of Pensions (1968)
16
Q
What happened in Ready Mixed Concrete v Minister of Pensions (1968)? What was held?
A
- Involved lorry drivers who owned their own trucks but painted them with the company’s logo and wore their uniform
- HELD - not employees, but independent contractors
17
Q
For what three reasons were the lorry drivers in Ready Mixed Concrete v Minister of Pensions (1968) held to not be employees?
A
- They owned and maintained the lorries themselves
- They had the option of hiring replacement drivers
- They weren’t guaranteed an income
18
Q
What three things does the Economic Reality test require for a person to be considered an employee?
A
- The person agrees to provide work or skill for the employer in return for payment
- They agree expressly or by implication to be the subject of the employer’s control
- The other terms of the contract are consistent with the existence of a contract of service
19
Q
Under the Economic Reality Test, what two things suggest that the person(s) are contractors?
A
- A requirement that the person pays for their own tools and equipment AND
- That they themselves have the right to hire someone else to do their job. Usually employment contracts state specifically that the person named on the contract has to do the work or get sick pay if they can’t
20
Q
What happened in Hall v Lorimer (1992)?
A
- Claimant tried to say that he was an independent contractor because he didn’t want to pay a higher rate of tax that he would have had to pay as an employee
- CoA overturned a previous decision that he was freelance
21
Q
In Hall v Lorimer (1992), what four things did the CoA say made it more likely that the man in question was an employee? What did the court add?
A
- He didn’t send his own invoices
- He didn’t have lots of different clients
- He didn’t use his own kit
- He didn’t have helpers or managerial responsibilities
- Court added that just because a person performs a highly skilled function does not make them a contractor, and the contract is not decisive. The courts look at all factors concerned
22
Q
What happened in Ferguson v Dawson (1976)? What was held? What did the court say?
A
- Builder injured in industrial accident tried to sue his employer
- HELD - he was an employee as his work was provided by them, he didn’t go out looking for it
- Court said that calling someone self-employed wasn’t enough if the circumstances suggested otherwise (type of work done and degree of control exercised)
23
Q
What happened in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012)? What was the issue? What was held?
A
- A priest molested children
- Issue was whether or not his immediate superior, the Bishop, was an employer
- HELD - yes. Bishop vicariously liable as there was enough ‘control’ over the priest
24
Q
What is the obvious advantage to companies of using agency workers?
A
- Wages aside, they aren’t as big of a responsibility as employees in terms of sick pay etc
25
What happened in Hawley v Luminar Leisure (2006)? What was held? What did the court note?
- Luminar Leisure used a bouncer from another agency
- Bouncer injured claimant, causing brain damage
- The bouncer's agency went bust so the claimant was trying to establish that Luminar employed the bouncer
- HELD - yes. Luminar = employer as there was control over what the bouncer did and Luminar would have been in a position to prevent the tort
26
Give a case in vicarious liability that concerned casual workers
- Carmichael v National Power (2001)
27
What happened in Carmichael v National Power (2001)? What was held? Why?
- Claimants worked as tour guides at a power station on a 'casual basis'
- HELD - not employees
- They turned up for work as and when they were needed, they could refuse to work if they didn't feel like it, and they wouldn't face disciplinary action (not enough of an obligation)
28
Give two cases that concerned employees loaned to other companies
- Mersey Docks v Coggins (1947)
| - Viasystems v Thermal Transfer (2005)
29
What happened in Mersey Docks v Coggins (1947)? What was the issue? What was held? What did the court do?
- Claimants loaned the defendants a crane driver who caused an accident due to his negligence
- ISSUE - who employed him?
- HELD - employee of Mersey Docks, as a contract existed saying that he was an employee. They paid his wages and had the power to sack him
- The court laid down a few guidelines for future similar cases
30
What five guidelines did the court lay down in Mersey Docks v Coggins (1947)?
- The permanent employer will be the employer unless they can show that the person is not their employee
- Who has the immediate right to control the employee's method of working?
- Identify the act of negligence and then work backwards to find out who was best placed to prevent the act
- Who paid them? Who dismissed them? How long was the loan for?
- How the person is described in the contract is never conclusive - at best it is a statement of intent
31
What was held in Viasystems v Thermal Transfer (2005)?
- A worker can have more than one employer at the same time, who will be vicariously liable for the employee
32
Give four cases that concern relationships that are akin to employment
- Various Claimants v Catholic Child Welfare Society (2012)
- Cox v MOJ (2016)
- Various Claimants v Barclays Bank (2017)
- Armes v Nottinghamshire City Council (2017)
33
What was held in Various Claimants v Catholic Child Welfare Society (2012)? What did the court establish?
- The school was deemed sufficiently in control of the priests for a relationship of employer/employee to exist
- Principles
34
What four principles were established in Various Claimants v Catholic Child Welfare Society (2012)?
- Who is likely to be in a financial position to compensate the victim
- Was the tortious activity part of the employer's business activity?
- Has the employer essentially created the risk of the tort happening?
- Was there control of the employee's activities (when, where, how, uniform)?
35
What was held in Cox v MOJ (2016)? What judgment did the court refer to?
- Held that MOJ was vicariously liable for the negligence of a prisoner who injured the claimant employee
- Referred to the judgement in Catholic Child Welfare (2012)
36
Why was the MOJ liable in Cox v MOJ (2016)?
- The prison service was in the position of being able to pay out in claims, but more importantly was best placed to assess the danger that prisoners posed (they created the risk)
37
What happened in Various Claimants v Barclays Bank (2017)? Held? Why?
- Bank arranged for potential employees to be medically examined by a doctor who abused the applicants
- HELD - the medical exams were to benefit the bank as they wanted to ensure the fitness of potential employees
- The bank may not have directed the doctor's actions, but created the conditions for the tort to be committed. The applicants didn't have much choice as a successful medical examination was a condition of employment set by the bank
38
What happened in Armes v Nottinghamshire City Council (2017)? Who was liable? Why? (3)
- Girl in foster care abused
- Council vicariously liable
- Liability was strict, the council undertook a vetting and selection process of parents and the council had the right to approve or disapprove of a placement and had the right to remove the child if they deemed it necessary
39
When is an employer NOT responsible for a tort committed by an employee?
- When the tort is committed outside the course of employment
40
When MAY an employer be responsible for a tort committed by an employee?
- When the tort is committed during the course of employment
41
What is meant by a 'frolic of his own' in regard to vicarious liability?
- If an employee does something not related to their work and commits a tort, then the employer will not be liable for said tort
42
What happened in Storey v Ashton (1869)? What was held? Why?
- Defendant sent two employees in a horse and cart to deliver wine. On the way back they made a detour in order to complete business of their own. While doing this the claimant was run over due to their negligent driving
- HELD - defendant not vicariously liable
- Because the employees were on a frolic of their own
43
What was held in Heasmans v Clarity Cleaning Co (1987)
- An employee hired to clean telephones was held to be acting outside of his responsibilities when he used them for long distance calls
44
Give three cases concerning frolics in the context of journeys
- Hilton v Thomas Burton Ltd (1961)
- Williams v Hemphill (1966)
- Smith v Stages (1989)
45
What happened in Hilton v Thomas Burton Ltd (1961)? Was the employer liable?
- Four workmen allowed to use a van to travel to and from work were deemed to have acted outside their responsibilities by going to a cafe near their job
- Not vicariously liable as the journey was not permitted under the terms of employment
46
What happened in Williams v Hemphill (1966)? Employers liable? Why?
- Employee took a detour when carrying passengers to Glasgow
| - Employers vicariously liable as he had picked up passengers and so was still performing his role (detour not relevant)
47
What happened in Smith v Stages (1989)? Was the employer liable? Why? What is usually the case?
- Employees who were paid for travel to and from work caused an accident on the wat home
- Employer liable as the employee was paid a normal day's wage for the day of travel
- Normally travel to and from work would not result in vicarious liability, unless the contract suggests otherwise
48
In terms of an authorised act, when is an employer liable? What is the general rule? However?
- Employer vicariously liable for the torts of their employee if employee is committing an act authorised by the employer
- General rule is the employer will be liable for an authorised act done in an unauthorised manner
- However, the employer is not responsible if the employee is acting beyond the scope of his or her employment
49
Give a case that concerned an authorised act
- Poland v Parr (1927)
50
What happened in Poland v Parr (1927)? Was the employer liable? Why?
- Employee thought a boy was stealing sugar from the back of a wagon an hit him (he fell, wagon got his foot so lost his leg)
- Employer liable
- There was an implied authority to act to protect the employer's property
51
Give three cases that concern an authorised act in an unauthorised manner
- Century Insurance v Northern Ireland Transport Board (1942)
- Iqbal v London Transport Executive (1973)
- Bayley v Manchester Railway (1873)
52
What happened in Century Insurance v Northern Ireland Transport Board (1942)? Employers liable? Why?
- Defendant's employee lit a cigarette and dropped the match, causing an explosion
- Employer liable
- What he was doing at the time was part of his job (unloading petrol) even if he was doing it in a negligent way
53
What happened in Iqbal v London Transport Executive (1973)? Was the employer liable? Why?
- A bus conductor drove a bus even though he was specifically forbidden from doing so. His negligent driving caused damage
- Employer not liable
- The prohibition excluded a certain activity and therefore limited the sphere of the conductor's employment
54
Why was the employer held to be vicariously liable in Century Insurance but not in Iqbal?
- In Century Insurance, the employee was acting in the course of his employment, whereas in Iqbal the employee was acting outside the scope of his employment
55
What happened in Bayley v Manchester Railway (1873)? Was the employer liable?
- Railway porter injured a passenger by pulling him from a train as he believed him to be on the wrong one
- Employer liable
56
Give three cases that involve express prohibition
- Limpus v London General Omnibus (1862)
- Twine v Bean's Express Ltd (1942)
- Rose v Plenty (1976)
57
What happened in Limpus v London General Omnibus (1862)? Was the employer liable?
- Omnibus driver crashed while racing another bus
| - Employer liable
58
What happened in Twine v Bean's Express Ltd (1942)? Was the employer liable? Why?
- Van driver specifically told not to give lifts to certain classes of people. He did and killed said person due to negligent driving
- Employer not liable as picking up the person who died was not part of his job
59
What happened in Rose v Plenty (1976)? Employer liable? Why? What may have influenced the courts?
- Milk float driver told he couldn't pick up passengers or let children help with his deliveries - he ignored both and let a 13 year old boy help him
- Employer liable
- Defendant was being negligent in the course of performing his duties
- Courts may have been influenced by the fact that the child had no one else to sue for damages
60
An employer will only be vicariously liable for the unlawful acts of their employee if there is a what?
- Closeness of connection between the employment and the unlawful act
61
What was held in Lloyd v Grace, Smith & Co (1912)?
- The solicitor's clerk's defrauding of the client was something that his employers were vicariously liable for as they should have been supervising him (they were contracted to do so as a part of his training)
62
What happened in Warren v Henley's Ltd (1948)? Was the employer liable? Why?
- Petrol pump attendant had a fight with a customer
| - Employer not liable as the petrol had already been bought so anything after was not done in the course of employment
63
What happened in Lister and Others v Hesley Hall (2001)? What was held? What 'test' was used?
- One of the wardens at a school had nonced a number of children
- HELD - owner of school vicariously liable
- 'closeness of connection' test to determine vicarious liability
64
Under the 'closeness of connection' test, a vicariously liable act is one in which... (2)
- The wrongful act committed by the employee was authorised by the employer
- The employee carried out their duties in a wrongful or unauthorised way, but what they were doing was still their duty
65
What is a very similar test to the 'closeness of connection' test set out in lister?
- The Salmond Test
66
What was held in Dubai Aluminium v Salaam (2002)?What test was used?
- A fraud perpetrated by someone who the solicitors in a firm had introduced the claimants to was held to have been committed in the course of the solicitor's business
- Used the 'closeness of connection' test that was used in Lister
67
In Bernard v A-G of Jamaica (2004) Why was the policeman who shot a member of the public over an argument about a payphone deemed to be acting in the course of his employment? (2)
- He had identified himself as a police officer
| - He shot the victim with a gun that was provided by his employer
68
What happened in Gravil v Carroll and another (2008)? Was the employer liable? Why?
- Rugby player fought another during a match and broke a bone in his face
- Club vicariously liable as the employee was doing his job in an unauthorised way, outside the instructions of his employer, but was still acting in the course of employment
69
What happened in Mattis v Pollock (2003)? Was the employer liable?
- Nightclub employed an unlicensed bouncer who, after an altercation in the club, went home, returned armed and seriously assaulted the customer
- HELD - Employer liable
70
What happened in MAGA v Trustees of the Archdiocese of the Roman Catholic Church (2010)? Was the employer liable? What test was used?
- Priest nonced a non-catholic child he had befriended
- Church vicariously liable
- Passed the lister test
71
What happened in Mohamud v Morrisons (2016)? Was Morrisons liable? Why? What did the Supreme Court state?
- Cashier at Morrisons petrol station fought a customer over printing a receipt
- Morrisons vicariously liable as there was an unbroken series of events between attending to the claimant's enquiries and the fight
- Supreme Court said that his job was to interact with customers and respond to their enquiries
72
What happened in Various Claimants v Morrisons (2017)? Was Morrisons liable? Why?
- Employee committed a data breach
- Morrisons not liable
- The handling of data was something that the employee was authorised to do, but it was not done in the course of his duties
73
What happened in Frederick v Positive Solutions (2018)? Was the employer liable? Why?
- Fraudulent investment opportunity offered to claimants via a virtual portal
- Not vicariously liable
- The person in question did work for the defendants but the scam was part of a recognisably separate venture and not an integrated part of the defendant's business
74
Give a case that concerned vicarious liability and statutory duties
- Majrowski v Guy's and St Thomas' Hospital NHS Trust (2005)
75
What happened in Majrowski v Guy's and St Thomas Hospital NHS Trust (2005)? Was the employer liable? What was said to make it more likely for an employer to be vicariously liable?
- Claimant sought damages saying that their manager was a bully and that it amounted to harassment under the 1997 Act
- Liable
- Since everyone knows that harassment is an offence, if the employer does not address such behaviour then they are much more likely to be found vicariously liable
76
Give two cases that concern violence between employees
- Weddall v Barchester Healthcare (2012)
| - Wallbank v Wallbank Fox Designs (2012)
77
What happened in Weddall v Barchester Healthcare (2012)? Was the employer liable? Why?
- Employee called by boss and asked to work extra shift. He was drunk and thought the boss was making fun of him, so he went and assaulted him
- Employer not liable
- The 'closeness of connection' test set out in Lister could not be established as the employer was off duty and cycled 20 minutes to assault the boss
78
What happened in Wallbank v Wallbank Fox Designs (2012)? Employer liable? Why?
- Boss told worker to do something and was attacked as a result
- Employer liable
- It was a violent and instant response to what was being done by the boss
79
What is employer's indemnity for liability suffered in vicarious liability situations?
- A company/employer can successfully sue the employee in a separate claim to try and recover its losses paid out as a result of the employee's tort
80
In what case was indemnity established?
- Lister v Romford Ice and Cold Storage (1957)
81
What happened in Lister v Romford Ice and Cold Storage (1957)? What did the firm then do? Why was this allowed?
- A lorry driver employed by the defendants ran over and injured his own father who was also an employee
- The firm then sued the son
- This was allowed because the careless driving was a tort and also a contractual breach of the implied duty of care to exercise reasonable care when exercising his duties
82
What is the criticism of the decision in Lister v Romford Ice and Cold Storage (1957)?
- Under the principles of vicarious liability, the employer is frequently best placed to pay out damages. Allowing them to recover these sums essentially means that they aren't exposing themselves to any risk, and therefore they won't be careful about regulating the performance of the employees in doing their jobs
83
What is the present position of insurers in regard to the decision in Lister v Romford Ice and Cold Storage (1957)?
- Insurers giving cover to employers have agreed that they will not take part in indemnity payouts unless there is evidence a fraud has taken place in which the employer and employee have colluded
84
In terms of vicarious liability, what is the position of independent contractors? What is the exception?
- An employer is not usually responsible for the torts of an independent contractor on a vicarious liability basis
- Independent contractors CAN cause vicarious liability for employers when they complete jobs on behalf of them in certain circumstances
85
In terms of vicarious liability, there are certain roles that cannot be delegated. What does this mean?
- If an employer tries to delegate one of said roles, and the contractor commits a tort, in certain circumstances they will never be able to avoid vicarious liability for the contractors' torts
86
According to the Annie Woodland case, roles that can't be delegated involve what? (5)
- Cases where duties to children, patients and other vulnerable persons are concerned
- Where a duty of care to protect from harm exists (both statute and common law)
- Where the claimant had no control over the contractor's performance
- Where the employer had delegated an aspect of the duty of care to the contractor who then had control over the claimant's safety
- The contractor had simply been negligent in the performance of that duty (there is a duty of care imposed on Occupiers under the 1957 Act - a duty to pick a competent practitioner
87
What was held in Razumas v MOJ?
- There was a duty on the part of the ministry to provide access to healthcare but NOT to oversee the quality of the treatment (they had delegated the duty to provide healthcare but they did not and could not control the quality of care)
88
What was held in Padbury? What happened?
- For an employer to be vicariously liable, the negligence of the contractor would have had to have been central to their contracted work and not merely incidental to it
- Placing a tool in a dangerous place was deemed incidental to the main duties
89
What are three reasons why vicarious liability should be imposed?
- Benefits to employers
- Financial resources
- Preventing negligent recruitment and raising standards
90
Explain benefits to employers as a reason why vicarious liability should be imposed
- If employers benefit, they should also shoulder the risk. There is also the argument that the party most financially able to meet a claim should therefore meet it
91
Explain financial resources as a reason why vicarious liability should be imposed
- Since the risk is usually passed on to the consumer in the case of big businesses in the form of insurance and damage payouts, the courts are always reluctant to endorse an inequality of bargaining power
92
Explain preventing negligent recruitment and raising standards as a reason why vicarious liability should be imposed
- Vicarious liability will place this burden on employers, whose wrong selection of workers in technical/sensitive positions is often the prime source of tortious incidents in any event
- There is evidence that imposing vicarious liability promotes better standards
