v.l evaluation model answer

• The doctrine of Vicarious Liability is widely criticised for going against the basic legal principle of only imposing liability on parties who are directly at fault or blameworthy. However, it is often justified by ensuring those best placed to meet the costs of legal action take responsibility for the acts or omissions of those for whom they are responsible.
• Vicarious liability is where one party (usually an employer) is held liable for the torts of another party (usually an employee) referred to as the tortfeasor. For the Defendant to be Vicariously liable there must have been a Tort committed by an individual. Once a Tort has been established, it must be proven that it was committed by an Employee. Barclays Bank Pic v Various Claimants (2020) updated the Law on Employees and Independent Contractors, showing that where an Independent Contractor is working under a Contract for Services, there will be no Vicarious Liability.
• However, if there is employer-employee relationship between the parties 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 three ways: a) where there is a clear contract of service between the Employer and Employee tests must be considered: the Control Test (Yewans v Noakes), Integration Test (Stevenson, Jordan and Harrison) and the Economic Reality Test (Ready Mixed Concrete); or, b) Is the relationship between the tortfeasor and the defendant 'functionally analogous' to an employment relationship?
• Alternatively, c) where there is an ambiguous contract of service, the five criteria from Catholic Child Welfare Society v Various Claimants (2012) will be considered to assess if there is a relationship akin to employment; a) Employer is more likely to have means to compensate V and be insured; b) the tort was committed as a result of activity being taken by the employee on behalf of the employer;
• c) the employee's activity is likely to be part of the business activity of the employer; d) the employer, by employing the employee to carry out the activity, will have created the risk of the act being committed by the employee; e) the employee will, to a greater or a lesser degree, have been under the control of the employer.
• Once there is an established relationship, it must be then proven that the Tort was committed during the course of employment either intentionally (committed a criminal act) or non-Intentionally (committed a negligent act, acting in an unauthorised manner, acting not within the scope of employment, on a frolic on his own).
• Vicarious liability is unfair on employers when it goes against the basic fault principle in tort law, that a defendant should only be liable if they are at fault for the negligent act and it is the employee rather than the employer who is negligent.
• However, many would argue that it is fair on employers and justified by ensuring those best placed to meet the costs of legal action take responsibility for the acts or omissions of those for whom they are responsible, the tortfeasor is a man of straw. Public policy would seem to underpin this with the legal requirement that all employers must have employer indemnity insurance.
• It seems harsh and unfair to hold employers liable even though they have done all they could but employees have acted in spite of an express prohibition of harmful practices. This is illustrated in Rose v Plenty where the employee had clearly been warned not to use children on his milk round but did so anyway. When the claimant was injured, the employer was held liable.
• However, it is fair as it encourages the employer to maintain high standards and it is the employer who is ultimately responsible for the appropriate hiring, induction, training, and supervision of their employees, they benefit from the employee's work so should bear responsibility for its proper execution.
• A number of tests can be used to establish if someone is an employee rather than an independent contractor which can be seen as unfair for an employer. Traditional test of employment such as the Control test (Yewans v Noakes), Integration test (Stevenson, Henderson and Jordan) and Economic Reality test (Ready Mix Concrete) have proved too narrow in recent cases and the courts now adopt a more flexible approach to finding an employment relationship - 'functionally analogous' to an employment relationship or if there is a relationship akin to employment.
• This may be viewed as unfair as it arguably stretches the law to find liability in circumstances where employers have a less conventional relationship of control with the tortfeasor. It has significantly extended the potential liability of employers, is this fair?
• The scope of liability by employers carries potential unfairness on employers in relation to borrowed/loaned workers. One employer can be left liable in circumstances where they had little control or supervision, as seen in Mersey docks v Coggins where the original employer was responsible for the actions of an employee they had loaned to another company. Despite this prima facie unfairness, if the law was not flexible, claimants would not have the possibility of suing the party best placed to pay any damages due.
• Vicarious liability requires the torts need to take place 'in the course of employment' rather than where an employee acts outside the directions of the employer or on a 'frolic of his own'. This is fair on employers as they should not be responsible for actions of employees whilst not at work. Nevertheless, recent developments in the law have produced a much broader test of liability. As shown in Lister v Hesley hall, the courts have applied the 'close connection' test.
• This merely requires that a connection can be established between the acts/omissions of the tortfeasor and the employer, On one hand, this can be criticised as unfair on employers since a broad approach has been adopted and they are being found liable in circumstances where the acts/omissions of their employees fall well beyond what would be authorised and beyond anything they might reasonably expect an employee to do.
• However, many of the cases involved the abuse of vulnerable children in care and acts of violence with serious consequences for the victims who must be offered some protection by the law.
• In theory, an employer can use the Civil Liability (Contribution) Act 1978 to recover from the negligent employee what he has had to pay out which is fair. However, in reality this is unfair on the employer as the employer is unlikely to get any money back because the employee will have lost their job, sometimes have died or been convicted of a criminal offence.
• This is illustrated in Lister v Hesley Hall where a warden sexually assaulted children in his care and received a custodial sentence and so would not be in a position to pay his employer back.
• In conclusion, the law on vicarious liability may seem unfair to employers as it is so wide and inconsistent, but this shows the law trying to take a flexible approach to ensure vulnerable victims have access to justice and that there are high standards in workplaces.