Vicarious liability Evaluation

Question 1

vicarious liability evaluation paragraph- Defendant can be liable for negligent acts of their employees

Answer 1

D can also be liable for the acts of negligent employees (Century Insurance v N.Ireland Transport).This is unfair because it is very difficult for an employer to prevent acts of mindless carelessness by employees no matter how well they train and supervise them.However it is fair on C because with such a large claim as this one the employer will have compulsory public liability insurance which will provide the compensation. Even if this was not so, the employer would still be able to pay the compensation out of profits and regain the cost through future price increases.

Question 2

Vicarious liability evaluation paragraph - Close connection test

Answer 2

The Close Connection test (created in Lister v Helsey Hall and originally used to establish whether crimes are committed ‘in the course of employment’ but now used for torts as well) has been criticised as vague and open to inconsistency. There may be different judicial opinions as to whether there is a sufficiently close connection between T’s job and the crime s/he committed. For example, it is easy to see a connection in Mattis v Pollock where T’s job as a bouncer (encouraged to be aggressive) can be seen as closely connected to his crime, but this is less obvious in Mohamud v Morrisons where T was a kiosk attendant.

• However the test has been clarified to some extent in Mohamud but it is still left to judicial opinion as to when a connection is close enough for it to be socially just (fair) to impose VL.

Question 3

Vicarious liability paragraph - Requirement 1 - was there a relationship between T and D which makes it fair for D to pay the compensation to C

Answer 3

• Cox test for ‘sufficiently similar relationships’ ‘akin to to employer-employee’.
• This test has expanded vicarious liability to other types of organisations (not just employers in businesses). Prisons, churches and councils have been included. This expansion of liability can be criticised because these are non-business organisations which do not make a profit and so may not have the ‘deepest pockets’. Making them vicariously liable will increase the risk of running voluntary organisations and may cause them to close.
• On the other hand, in the light of the growing number of abuse stories, it is only right that all organisations should realise that they are responsible for the actions of their members and carry out regular checks and oversight.

Question 4

Vicarious liability Evaluation paragraph - Requirement 2 tests for whether there was a close connection between that relationship and the wrongdoing

Answer 4

• The second option (authorised acts in an unauthorised manner) leads to several problems:
• D can be held liable for the acts of disobedient employees (Limpus v LGOC). On the one hand this is fair because the employer has control over who s/he hires and fires and is responsible for training and supervising them. On the other hand it is unfair especially if the employee does something which has been expressly forbidden eg. racing.

Question 5

vicarious liability evaluation - salmond test

Answer 5

One problem with the Salmond test is that it can work inconsistently. Both Rose v Plenty and Twine v Beans involved employees who gave unauthorised lifts but were held VL in Rose but not in Twine. Such inconsistency makes it difficult for employers to be clear how to protect themselves against liability.

• However, one distinguishing factor between these two cases may be that in Rose the employer received a benefit from T’s tort (the boy was helping with milk deliveries) and therefore the employer should bear the cost of the consequences.