Flashcards in Week 8- Vicarious liability and liability for breach of a non-delegable duty Deck (35)
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?
- 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.”
What was Rix LJ's integration test in Viasystems? How does it go further than May LJ's control test?
(Limb 1 of VL)
Rix LJ and the integration test: While agreeing that dual employment was established in this case, Rix LJ argued that ‘control’, though important, was not sufficient to act as a sole test for employment. Other (p. 586) ‘structural and practical considerations’ might also be relevant. In this context, he suggested, one needs to ask:
79 … whether or not the employee in question is so much part of the work business or organisation of both employers that it is just to make both employers answer for his negligence. What has to be recalled is that the vicarious liability in question is one which involves no fault on the part of the employer. It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit.
Rix LJ therefore emphasized the underlying policy rationale of vicarious liability. Most presciently, he emphasized that the crucial issue is the relationship undertaken by the employer for his or her own benefit, and the obligations that may flow from this.
THE CONTROL IDEA WAS SUBSEQUENTLY CONSIDERED IN HAWLEY V LUMINAR, WHERE IT WAS THAT “DETAILED CONTROL” WAS LIKELY TO BE A CONSTIUENT ELEMENT WHEN CONSIDERING WHO AN EMPLOYEE WAS WORKING FOR, OWING TO THE NATURE OF THE JOB AND HIS CONTINUED ROLE AS TAKING ADVICE AND INSTRUCTIONS FOR TWO YEARS FROM THE NIGHT CLUB. “Whether the test applied was control (the approach of May LJ in Viasystems), or the wider question of whether Warren was ‘embedded in’ the business of Luminar (Rix LJ), the answer was the same: ‘there has been effectively and substantially a transfer of control and responsibility from ASE to Luminar”
How did the akin to employment test for the first limb operate in Cox v ministry of justice?
This was similarly applied to Cox v Ministry of defence: Clearly the prisoners are not acting as employees of the prison; the prison is not in that sense a business enterprise, and there is no commercial motivation behind their work. They are part of the operation of the prison, in that they are integrated in furthering the aims of rehabilitation etc, as well as actually providing meals to the other prisoners, a benefit that the prison accrues because it will pay the prisoners, if anything, a considerable amount less than if they hired catering members. They receive health and safety training, and work under the direction of the prison staff.
Facts and significance of Rose v Plenty 1976?
What was the old approach to the second limb of the VL test? (known as the Salmond test)
Facts- Plenty was a milkman, employed in Bristol by a retail service, and the depot where he worked meant that no children were allowed in any vehicle, where signs were put up to the effect that children were not to be employed by milkmen in the performance of their duties. Plenty was persuaded by Rose to help, and plenty paid him a small wage for collecting money on the milk rounds. Due to the negligent driving of Plenty, Rose suffered a fractured leg. The first instance judge said that Plenty was 75% contributorily negligent, and the employer was never liable as it was not within the scope of Plenty’s employment to employ children to assist him.
Significance- Although prohibited, Plenty had nonetheless allowed to child to help “in the course of employment”. The warnings did not take the conduct outside of the employment sphere, as Lord Denning put it. Lord Denning suggested that the child was employed to further the employee’s duty, and therefore his employer was vicariously liable. The masters were accordingly liable for Plenty’s actions.
The old test to be applied was whether the employer had been negligent in the course of employment; providing a sufficient connection between the relationship and the tort committed.
Facts and significance of the infamous case of Lister v Hesley hall 2002?
Facts- P were residents in a boarding house attached to a boarding school owned by the defendants. Warden of the house systematically abused the children in his care, and was employed by the defendants. Primary liability for the negligence of employing this warden for the boarding school was rejected at first instance. The first instance judge went so far as to reject VL for the school as it did not satisfy the Salmond test and was not in the course of employment. The court of appeal upheld the decision of the first instance judge.
Significance/ decision- The house of Lords overturned Trotman v North Yorkshire CC and held that the defendants were vicariously liable. The test of ‘course of employment’ was changed, following Curry, to be understood in terms of ‘close connection’.
Lord Steyn- Strong influence from Bazley v Curry; held that the wardens acts were inextricably interwoven with his duties, and that in Bazley and Curry, The court went on to explain that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of risk (that a third party commits a wrong) and that wrong flows from the risk. It will not be enough that the wrong took place on company property or through incidental connections.
-Could argue that the fact that he lived there with his wife meant that he was not working in the course of employment
-Lord Hobhouse- rejected approach in Bazley; He said that the defendant itself (the school) owed a duty of care to the children to guard their welfare as they had assumed responsibility over them, and through the warden, this duty was breached. “This duty the school had ‘entrusted to’ the warden, taking into account the terms of his employment. Thus, the duty breached is owed by the school: ‘[T]he employers’ liability to the plaintiff is also that of a tortfeasor’ (at ). This interpretation makes Lister a case of liability for the breach of a primary duty owed by the school, through the conduct of the employee to whom that duty had been entrusted. If we want to maintain any clarity in this area of law, this is better not referred to as ‘vicarious liability’. It is essentially a non-delegable duty of the sort recognized by the UK Supreme Court in Woodland v Essex, extracted in the next section.”
How does Lord Hobhouse's approach in Lister v Hesley hall suggest that coherence between the theories of VL and NDD may be possible?
Lord Hobhouse- rejected approach in Bazley; He said that the defendant itself (the school) owed a duty of care to the children to guard their welfare as they had assumed responsibility over them, and through the warden, this duty was breached. “This duty the school had ‘entrusted to’ the warden, taking into account the terms of his employment. Thus, the duty breached is owed by the school: ‘[T]he employers’ liability to the plaintiff is also that of a tortfeasor’ (at ). This interpretation makes Lister a case of liability for the breach of a primary duty owed by the school, through the conduct of the employee to whom that duty had been entrusted. If we want to maintain any clarity in this area of law, this is better not referred to as ‘vicarious liability’. It is essentially a non-delegable duty of the sort recognized by the UK Supreme Court in Woodland v Essex, extracted in the next section.”
Facts and significance of Mohamud v Wm Morrison supermarkets plc 2016 UKSC?
Facts- Claimant asked to print documents off his USB stick in the supermarket petrol station. He was subjected to racist, abusive and violent language by an employee of morrisons who followed the claimant’s car and subjected him to violent physical attacks. There was said to be racist motivations, unconnected to the interests of the employers.
Significance/ decision- the HL held that the employer was vicariously liable for the racial physical attack, because of the sequence of events from responding to the enquiry to the physical attack being an ‘unbroken sequence of events’. It was sufficiently connected to the role as a petrol station attendant.
-LORD TOULSON: 47 “In the present case it was Mr Khan’s job to attend to customers and to respond to their inquiries. 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 thereafter was an unbroken sequence of events. It was argued by the respondent and accepted by the judge that there ceased to be any significant connection between Mr Khan’s employment and his behaviour towards the claimant onto the forecourt. I disagree for two reasons. First, I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant. It was a seamless episode. Secondly, when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to petrol station. This was not something personal between them; it was an order to keep away from his employer’s premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer’s business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position, and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.”
-It was decided that VL had been expanded as its easier to satisfy the second limb of the test; very easily satisfied in Mohamud and appears to be too lenient.
What does the case of Mohamud show about the 'close connection' test for limb two of VL?
-IT WAS PERHAPS ON THE BORDERLINE OF BREAKING THE BOUNDARIES OF BEING CLOSELY CONNECTED TO THE EMPLOYER. THE RELATIONSHIP IN THIS CASE WAS NOT THE ISSUE, RATHER THE CAUSAL ANALYSIS WAS USED TO ILLUSTRATE THE CONNECTION BETWEEN THE EMPLOYEE’S TORT AND THE EMPLOYER WHO RISKED EMPLOYING A RACIST ANTAGONIST WHO WOULD ABUSE HIS POSITION OF CONTROL OVER THE PETROL STATION TO ATTACK A POTENTIAL CUSTOMER/ ENQUIRER.
Facts and decision of WM Morrisons supermarkets v Various claimants 2020?
Facts- Mr Skelton, Morrisons’ former senior internal IT auditor, downloaded the payroll data of c.100,000 employees onto a personal USB and took it home. He later uploaded the data onto a file-sharing website and sent anonymous links to three UK newspapers, motivated by a grudge against his employer following minor disciplinary proceedings earlier that year.
decision- SC held that Morrisons was not vicariously liable
How does Mohamud v Morrisons differ from Morrisons v Various claimants regarding the second limb of VL and the appropriate tests involved in said limb? Specifically what is said about the "sequence of events" talked of in Mohamud?
Morrisons v VC disputed the sequence of events argument for the second limb because it simply is too broad and misguided; events may be in a sequence stemming from a defendant acting in the official capacity of their job to merely acting on company premises or with company equipment, externally motivated and absent from any official capacity; Mohamud appears to be a borderline case which, whilst using the sequence of events criteria, seems to prove the problems with such a criteria, in light of Morrisons v VC.
What were the four reasons given by Lord Reed for the decision in Morrisons v VC?
1. First, the disclosure of data on to the Internet did not form part of Mr Skelton’s functions or “field of activities” in the sense in which the words were used by Lord Toulson in Mohamud at : “it was not an act which he was authorised to do.” 
2. Second, it was not sufficient for the imposition of vicarious liability that the employment gave the employee the “mere opportunity” to commit a wrongful act, or that the employee was “doing acts of the same kind as those which it was within his authority to do.” 
3. Third, whilst there was a “close temporal link” and an “unbroken chain of causation” between the provision of data to Mr Skelton in the course of his employment and its subsequent disclosure, “a temporal or casual connection does not in itself satisfy the close connection test.” 
4. Fourth, motive was not irrelevant: on the contrary, “whether he was acting on his employer’s business or for purely personal reasons was highly material.” Mr Skelton was “not acting on his employer’s business, but in pursuit of his own private ends”  and “seeking vengeance for the disciplinary proceedings some months earlier” .
Facts and significance of Biffa Waste v Maschinene Abrik Ernst 2009?
Facts- The appellant contractor appealed against the decision that it was vicariously liable for the negligence of P, who had materially contributed to a fire at a recycling plant.
Biffa was engaged in building a waste disposal depot in Leicester. A fire broke out which was caused by the negligence of welders engaged in installing a ball mill.
Maschinenfabrik was engaged to build and design the mill. It contracted Outocumpu Technology (the second defendant) to design the mill. Outocumpu subcontracted the work to a third party, which admitted that its negligence had caused the fire.
-Duty to compensate the victims for the risk, where they contract another party.
Significance- Appeal allowed, OT not responsible for the negligence of P; OT not aware of the facts which rendered the activity ultra-hazardous, especially as they had created a risk assessment which the negligent party had not followed.
-The principle that a person who employs an independent contractor to carry out extra-hazardous or dangerous operations can be vicariously liable for that contractor’s negligence was binding on the Court of Appeal, but its application should be kept as narrow as possible and strictly confined only to activities that were exceptionally dangerous no matter what precautions were taken.
Outocumpu appealed to the Court of Appeal, which allowed the appeal and made the following points.
What are non-delegable duties and how do independent contractors differ between non-delegable duty VL?
-In reality, no duties are actually delegable; rather, a delegable duty is one where the defendant can exonerate themselves by discharging their duty and passing liability onto another party. A non-delegable duty is one where liability cannot be passed on, and the duty can never be discharged completely, until it no longer exists. It is a form of strict liability, whilst delegable duty are negligence duties where reasonable care will exonerate a party from liability.
- A non-delegable duty is one where the duty cannot be passed on by entrusting its performance to others, WHETHER OR NOT THEY ARE EMPLOYEES OR INDEPENDENT CONRACTORS (INDEPENDENT CONTRACTORS DO NOT APPLY TO VL, IN THAT THEY ARE THEIR OWN RISK BEARERS WHERE THE NECESSARY RELATIONSHIP AKIN TO EMPLOYER AND EMPLOYEE CANNOT BE ESTABLISHED)
-If the duty is to be breached, unlike in VL, the defendant corporate entity is liable as a primary tortfeasor, rather than secondary tortfeasor, even if the defendant has taken all due care.
How has the understanding of the 'extra-hazardous activity' and non-delegable duties changed following Biffa waste?
The early case law was that a person undertaking an ‘extra-hazardous’ activity will be subject to a non-delegable duty; this was the case in honeywill, subsequently overruled in Biffa Waste (above) because Honeywill was said to be exceptional on its facts.
Bazley v Curry facts and significance (Canadian case)
Facts- Non-profit organisation employed curry, a Paedophile, who abused a number of children whilst under his care. Contended whether the non-profit was vicariously liable for the actions of curry, and whether they could be exempt as a matter of policy due to the nature of the entity.
Significance- the Supreme court of Canada disapproved of the Salmond test, because the view of the actions of Curry could be expressed in two ways; either he abused the boys in the furtherance of his role as a carer for the non-profit, or he acted completely independently.
“The court went on to explain that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. It will not be enough that the wrong took place on company property or through incidental connections.
In this case, because Curry was left alone for long periods of time unsupervised with his victims, was expected to bathe them and was placed by the foundation in a position of power over them, it can be said that there was a strong connection between what the employer was asking the employee to do and the wrongful act committed. The foundation significantly increased the risk of harm, and as such, should be found vicariously liable for Mr. Curry's actions.”