Week 8- Vicarious liability and liability for breach of a non-delegable duty Flashcards
What are the two constituent elements of vicarious liability?
1) A sufficient relationship between liable party and tortfeasor
2) A sufficient connection by liable party and the tort committed.
How has the understanding of sufficient relationships in VL been extended?
The employment relationship giving rise to liability has been somewhat extended to relationships which fall short of this title, so long as some common features remain consistent (akin to employment relationships)
-It is an employer, not necessarily a corporate entity, which is the risk bearer.
What does the employers liability (defective equipment) act 1969 do with regards to non-delegable duties?
Makes an employer also liable for the injury of an employer, even when it is wholly attributable to a third party eg a third party who supplied the injury-causing equipment.
How can a corporate entity be held as secondarily liable in VL?
In cases of VL, torts of employees are not attributed to the company, in the way that some acts of individuals may be attributed to the company, in that they were acting as the company as a whole rather than a private individual tortfeasor. This is not so in VL; the corporate entity is actually secondarily liable.
Facts of Various claimants v CCWS?
Facts- Many claimants brought proceedings against the school staff for various physical and sexual touchings of the pupils. The issue was whether the institute from which the headmaster and teachers were drawn from could be jointly vicariously liable with the managers for alleged abuse by staff members. The HL allowed the appeal by the managers.
What are the policy reasons Lord Phillips gave in various claimants for holding the school vicariously liable?
Specifically what are the 5 policy reasons he used to justify stage one of the VL test being sufficient (relationship between third party and defendant)
Stage 1) “fair, just and reasonable” to impose vicarious liability on the employer; policy arguments in favour of this are as follows: they are more likely to have funds to compensate victim, employee acts on employers behalf, employees act as part of the business activity, employer creates the risk of the tort being committed, and employer somewhat in control of employee.
Phillips held that the relationship between the teaching brothers and the institute was sufficiently ‘akin to that of employer and employee to satisfy stage 1 of the test”. The teaching activity was a reflection of the value and mission of the institute. He even went as far to say that the relationship was closer than that of employer and employee, due to the specific rules of Christian teaching and chastity.
What does Lord Phillips say to describe the second limb of VL, specifically the causative link between abuser and defendant?
Stage 2) Phillips suggests it is “not easy to deduce… the precise criteria that will give rise to VL for sexual abuse. The test of close connection approved by all tells nothing about the nature of that connection”.
- “Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse this involves a strong causative link . . . Creation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.” [86–87]
- The necessary relationship and the connection to the tort was established on the basis that the objectives of the institute was completed by the teachers, and there was a recognised risk of abuse in the rules of the institute which the teachers were abiding by.
Facts and finding in Cox v Ministry of justice 2016 IKSC?
Facts- Cox worked in prison kitchen with catering assistant and 20 prisoners under her direction. A prisoner dropped a sack of kitchen supplies on her, and it was accepted that the prisoner had been negligent. The question was whether defendant was vicariously liable for the prisoner’s negligence.
Significance- The prison was vicariously liable for the negligence of the prisoner
How did Cox treat the 5 policy reasons given by Lord Phillips in various claimants v CCWS?
IN what circumstances are these 3 policy reasons to be applied following Barlcays bank v Various claimants?
Focus was put on the middle 3 of Lord Phillips five policy reasons for imposing liability; namely that the tort will have been committed as a result of activity carried out on behalf of the defendant, the tortfeasor’s activity likely to be part of a business activity of D and the D will have created the risk of the tort being committed.
- Reed suggested that the requirements are a way of ascertaining whether it is fair, just and reasonable to impose VL.
- The first reason given in VC v CCWS by Phillips, the deep pocket policy, was not particular relevant or persuasive as a factor. “the mere possession of wealth” is not a just reason for imposing liability.
- The fifth reason, that there was control by the VL party over D, was once again lacking significance.
- The weight attached to the other three more important factors will vary according to the context.
- “The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.”
- The arguments in Cox are more concerned with fairness and equity, which is why they have disputed the loss-spreading argument and the fact that the employer may not always be in direct control of the employee. Instead, the court sought to find that the imposition of liability was ‘fair, just and reasonable’ with reference to the middle 3 policies, which include the justice argument of risk and reward creation
What is the justice/ enterprise arguments for vicarious liability, specifically with reference to risk?
How did Lord Toulson illustrate this in Mohamud v Wm Morrisons?
Justice arguments:
- Suggested that the VL defendant should take the risk of harm, because she benefits from the activity that creates the risk or because they play some over-arching role in creating the risk that a third party will commit a tort against the plaintiff.
- This can be understood as an enterprise risk, as the enterprise should take the risks associated with the benefits that it gains. It would be unjust to accrue the benefits but pass on the risks to the employees alone. It is not necessarily that the risks are enhanced by the VL of D, just normal risks associated with the enterprise will suffice. Lord Toulson in Mohamud v Wm Morrison said “the risk of an employee misusing his position is one of life’s unavoidable facts”.
- Justification for strict liability in enterprise risk, in that society should not bear the burden.
- There are many relationships which don’t truly capture the employer-employee relationship, owing to a change in the informal labour market; Dyson in Mohamud suggests that the changes in the type of relationship giving rise to VL to apply “have been the response to changes in the legal relationships between enterprises in the modern world”
What is the incentive and deterrence arguments for VL?
- Deterrence arguments revolve around the role of the employer to mitigate the risk of being VL, through safety precautions or otherwise. This may include better employee selection, further training, or supervision. Liability incentivises all of the above.
- It is not necessarily a deterrence theory because some accidents may be unavoidable, although negligent; VL is nonetheless imposed because it will incentivise better workplace practice, imposing higher standards than that of the reasonable person, but not promising it.
Facts and significance of Cassidy v Minister of Health 1951?
Facts- P went to hospital for routine hand operating, but negligent employer meant that he had stiff fingers. Sought to recover compensation from hospital as the employer
Significance- The Court of Appeal held that the doctor was indeed a servant of the hospital and the Ministry was vicariously liable, because the doctor was integrated into the health organisation. Denning LJ said,
“The reason why the employers are liable in such cases is not because they can control the way in which the work is done - they often have not sufficient knowledge to do so - but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct, the power of dismissal.”
He also noted, that where a patient selects the doctor, then the doctor will not be employed by a hospital, and will not be liable; the 5 factors identified in Woodland incorporate this factor, in that the group which the entity is expected to protect have no choice as to how they are protected; they have to rely on the choice of the entity to choose appropriate independent contractors eg the swimming instructors.
-Both could be presented as either cases of VL or Non delegable duty.
Why did limb 1 of the VL test, namely ‘the relationship’ test, need expanding over time?
Why is it important to distinguish between employers and non-employers for VL?
The test of employer and employee meant that anyone who was not an employee was an independent contractor, but this distinction, whilst still significance, is not reflective of the modernised labour market; a formal relationship of employment is no longer necessary. A party who is not an employee may nevertheless give rise to a relationship akin to employment, so long as they have the features which can justify the imposition of VL. Many will be more like employees than independent contractors, who are defined as risk-bearers in their own right.
Facts and finding in Viasystems v Thermal transfer 2006?
Facts- P had contracted first defendants to install air conditioning, who subcontracted the ducting work to the second defendants. Second defendants hired a fitter and his mate from the third defendants, to work under the supervision of an employee of the second defendant. The fitters mate negligently set off the fire protection sprinklers and flooded the factory. It was contended which of the three defendants would be the ‘employer’ for the purposes of VL.
Significance and decision- The CA held that the defendants (the second defendant doing the ducting work, and the third defendants, whom the negligent party was hired from) were jointly and equally liable, but that the party who most directly employed the negligent worker was liable first. The second and third defendant would be liable in an equal share because their entitled to control (not necessarily obliged).
What was May LJ’s control test in Viasystems?
Limb 1 of VL
- May LJ and the control test-both the employers were in a sufficient position to control the negligent worker and so could be jointly and equally liable- 18. “the core question on the facts of this case is who was entitled, and in theory, if they had had the opportunity, obliged, so to control Darren as to stop him crawling through the duct. In my judgment, the only sensible answer to that question in this case is that both Mr Megson and Mr Horsley were entitled, and in theory obliged, to stop Darren’s foolishness. Mr Megson was the fitter in charge of Darren. Mr Horsley was the foreman on the spot.
46. In summary, therefore, there has been a long-standing assumption, technically unsupported by authority binding this court, that a finding of dual vicarious liability is not legally permissible. An assumption of such antiquity should not lightly be brushed aside, but the contrary has scarcely been argued and never considered in depth. This is not surprising, because in many, perhaps most, factual situations, a proper application of the Mersey Docks principles would not yield dual control, as it so plainly does in the present case. I am sceptical whether any of the cases from this jurisdiction which I have considered would, if they were re-examined, yield dual vicarious liability. Even Mileham is not transparent.”
