v.l model answer

• Vicarious Liability arises when an Employer can be sued for the acts or omissions of an Employee (tortfeasor) where they amount to a Tort.

  An Employer may be Vicariously Liable for the injuries to a claimant which were caused by their staff if it can be shown that there was a Tort committed, by an Employee and it was done during the course of their employment.
• Tort committed

  For the Defendant to be Vicariously Liable there must have been a Tort either expressly or impliedly committed by an individual; Poland v Parr. If there is no identifiable Tort, there is no Vicarious Liability.
• Employment Status

  Once a Tort has been established, it must be proven that it was committed by an Employee. The recent case of Barclays Bank PIc v Various Claimants (2020) updated the Law on Employees and Independent Contractors, with Lady Hale stating "If a Contractor is carrying out his or her independent business, it is not necessary to consider the various tests". Therefore, if the Tortfeasor is clearly an Independent Contractor working under a Contract for Services, there will be no Vicarious Liability.
• However, if there is 'a relationship between two persons making it proper for the Law to make one pay for the fault of the other' and 'a connection between the relationship and the Tortfeasor's wrongdoing', the courts must consider the Tortfeasor's Employment status.
• Employment Status of the Tortfeasor can be considered through one of two ways:

  1. The traditional approach where there is a Clear Contract of Service between the Employer and Employee, or,
  2. the Modern approach where there is an Ambiguous Contract of Service but the relationship is Akin to Employment.
• Clear Contract of Service

  When considering Clear Contracts of Service, there are a number of tests which must be considered.

  Firstly there is the Control Test which was set out in Yewans v Noakes. This states that the more control an Employer has over the work that their staff do; telling them what to do, when to do it and how to do it; the more likely the staff are Employees. If there is little control over the work that they do they would be classed as Independent Contractors (Mersey Docks v Coggins).
• Alternatively, there is the Integration Test which was discussed by Lord Denning in Stevenson, Jordan and Harrison Itd v Macdonald & Evans. This looks at whether someone is integral to the running of an organisation or only an accessory. The more closely linked to the core business, the more likely they are going to be an Employee and satisfy this test.
• Traditional tests of employment such as the control and integration tests have proved to be too narrow in recent cases and courts now adopt a more flexible approach to finding an employment relationship. To achieve this, the courts now use the Economic Reality Test, as developed in Ready Mixed Concrete v Minister of Pensions and National Insurance.
• The Economic Reality Test provides 3 conditions that serve to establish that D is under a Contract of Service (an Employee) rather than a Contract for Services (Independent Contractor). The first condition is that the Employee agrees to provide work or a skill in return of a wage or remuneration.
• The second condition is that the Employee expressly or impliedly accepts that he will be subject to the others control in a sufficient degree to make that other master.
• The third condition is that all other elements of the contract are consistent with its being a Contract of Service. Elements inconsistent with a Contract of Service may be the ability to hire your own Employees, the requirement to provide your own tools or materials, and the fact that you pay your own National insurance and tax.
• Unclear Contract of Service - Akin to Employment

  When there is no clear and obvious Contract of Service, the courts must consider whether the potential Employer and Employee have a relationship Akin to Employment. In Catholic Child Welfare Society v Various Claimants (2012) Lord Phillips set out five criteria which would show it is fair, just and reasonable to find an Employer Vicariously Liable:
• 1. The Employer is more likely to have the means to compensate the Victim than the Employee and can be expected to have insured against that liability
  2. The Tort will have been committed as a result of activity being taken by the Employee on behalf of the Employer
  3. The Employee's activity is likely to be part of the business activity of the Employer
  4. The Employer, by employing the Employee to carry on the activity, will have created a risk of the Tort committed by the Employee
  5. The Employee will, to a greater or lesser degree, have been under the control of the Employer.
• If these criteria are met by the Employer and Employee, then it is likely that there will be a Relationship Akin to Employment and therefore the Employer will be Vicariously Liable. This has been seen to cover situations of Abuse by people in positions of authority (Institute of the Brothers of the Christians Schools 2012), situations where the Employee is acting in a voluntary capacity (Cox v Ministry of Justice 2016) and where a local authority have sufficient control over the Tortfeasors actions (Armes v Nottingham County Council 2017).
• Course of Employment

  Once it is established there is an Employer to Employee relationship, it must be then proven that the Tort was committed during the course of employment either Intentionally or Non-Intentionally. It is a question of fact that depends on each case but there are rules that can be applied.
• Non-Intentional Torts would undertake the following tests as per Lord Salmond:

  1. It will be considered if the Employee was acting against orders given by their Employer, provided the Tort was committed while they were doing their job then it will be in the course of employment and the Employer will be Vicariously Liable (Rose v Plenty). However, if an unauthorised lift has been given then this would be an exception to this as the Employer would have gained no benefit from this (Twine v Beans Express).
• 2. If the Employee caused injury by doing something outside their employment then the Employer is not Vicariously Liable as they cannot control this and receive no benefit from this either (Beard v London General Omnibus Company).
• 3. Where an Employee does a job badly (negligently) then the Employer can be Vicariously Liable if someone is injured as a result. (Century Insurance v Northern Ireland Road Transport Board).
• 4. Where an Employee was "on a frolic of their own" so their actions were unrelated to their employment and from which the Employer does not benefit. According to Hilton v Thomas Burton if the Employee was acting outside his hours of work then the Employer will not be Vicariously Liable.
• Intentional Torts focuses on where an Employee commits a criminal act, the Employer may be Vicariously Liable. Whether this is in the course of employment will depend on the test laid down in Lister v Hesley Hall.
• It must be shown that the defendant and the Tortfeasor are in a relationship of employment or 'akin to employment' and, if so, was the Tort sufficiently closely connected with that employment (Various Claimants v Catholic Child Welfare Society). In WM Morrisons Supermarkets PIc v Various Claimants, the court concluded that intentional vengeance will not be the responsibility of the Employer.
• To conclude, the Employer will/will not be Vicariously Liable for the Torts committed by their Employee. If liable, then under the Civil Liability Contribution Act 1978, the Employer can recover some of the damages (compensation) it pays out to the claimant from the Employee.