Vicarious liability

Created by

Alex Lansdale

Cards (20)

EMPLOYERS ARE VICARIOUSLY LIABLE WHEN…

An employee commits an unintentional tort
The person committing the tort is an employee (not independent contractor) and
The tort occurs in the course of the employment
1 – identify the unintentional tort (Negligence etc)
Poland v Par (1927) – In this case it included the tortfeasor’s intention to protect the employer’s property.

Tortfeasor followed behind employer’s wagon and seeing a boy with a hand on one of the bags, the employee believed the boy to be stealing sugar and hit him. This caused the boy to fall and the waggon to run over his foot, leading to the loss of his leg. The boy had not, in fact, been stealing the sugar although the employee had believed so.
Poland V Par (1927) (Part 2)
Issues
The question arose as to whether the employee’s actions were authorised by the employer, imputing the employer’s liability for the injuries sustained by the boy. Held - The Court held that the employer was liable as it was an act conducted during the employee’s course of employment and as a result of the employee acting within the scope of his duty to protect the employer.
The old test was whether a person was:
providing a contract of service – they would be an employee
Providing a contract of services – they would be an independent contractor (self-employed person, who is responsible for their own actions).
An employer can be vicariously liable for the actions of an employee but not an independent contractor.
Control test:

Lord Thankerton in Short v J W Henderson Ltd (1946)
Identified some key features that would show that the employer had control over the employee, including:
The power to select the employee
The right to control the method of working
The right to suspend and dismiss
The payment of wages
NB virtually impossible to apply today, but can be helpful in cases where there have been ‘borrowed employees’
Mersey Docks and Harbour Board v Coggins and Griffths (Liverpool Ltd) 1947
Employment:

Working relationships in recent times have become complicated and don’t always fit into definitions of a traditional sense. Now we have full-time, part-time, zero hour contracts, internships, volunteers, sub-contractors etc.

We have to be able to distinguish employment from self-employment, or being an independent sub-contractor

The courts have developed methods of testing employee status:

Control test
Integration and organisation test
Economic reality or multiple test
Integration or organisation test:
Lord Denning in Stevenson, Jordan and Harrison Ltd v Macdonald and Evans (1952) established this test. It provides that:

A worker will be an employee if their work is fully integrated into the business
If a person’s work is only accessory to the business, that person is not an employee

According to this test:

A chauffeur, newspaper paper staff reporter or master of a ship are employees.

A pilot bringing a ship into port, a taxi driver or freelance writer are not.
Economic reality test or multiple test:
Created after obvious problems that the first two tests caused. Considers various factors like self-employment etc.

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance (1968)

Questions arose about whether the company was liable for the payment of national insurance contributions for drivers who drove company vehicles carrying company logos.
Test established:
The employee agrees to provide work or skill in return for a wage
The employee expressly or impliedly accepts that the work will be subject to the control of the employer
All other considerations in the contract are consistent with there being an employment contract, rather than any other relationship
Circumstances involving a "shared employee":
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd 2005 – Court of Appeal decided that in some cases it was possible for two employers to be dually and equally liable for an employee’s negligent work
The question to be considered was “who was entitled and, in theory, obliged to control the employee’s negligent acts in order to prevent it?
In course of employment:
Courts decide on case-by-case basis whether the employee committed the tort within the course of employment.
In Course of employment -
Limpus v London General 1862 – doing what he was employed to do, but in unauthorised manner
Rose v Plenty 1976 - Expressly or impliedly authorised acts (benefitted from work on child labourer)
Century Insurance v Northern Ireland Road Transport Board (1942) – employee committing negligent and careless act
Not in course of employment:
Hilton v Thomas Burton (Rhodes) Ltd (1961) – on a ‘frolic of his own’
Twine Bean’s Express (1946) – Unauthorised act with no benefit to employer
Beard v London General Ominbus Co (1990) – acting against orders
Recent approaches:
The courts have recently developed an alternative approach to the conventional Salmond test.
It started in the case of Lister v Hesley Hall. Under this approach the court asks was the relationship between the employer and employee ‘akin to employment’ and was the commission of the alleged tort ‘closely connected’ to the circumstances of the tortfeasor’s employment?
Recent approaches (Part 2):
A number of cases have since refined these principles.
Approach was initiated as cases involving non-traditional working relationships came before the court.
Lister v Lesley Hall also introduced the concept that of employer being liable to the victim of a crime
Akin to employment cases:
Lister v Hesley Hall 2001
Cox v Ministry of Justice 2016
Mohamud v Morrison’s Supermarket’s (2016)
Armes v Nottingham County Council 2017
Akin to employment test:
Lord Philips also set out 5 criteria which can make it fair, just and reasonable to find a relationship akin to employment:
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
Akin to employment test (Part 2):
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 the risk of the tort committed by the employee; and the employee will, to a greater or lesser degree, have been under the control of the employer.
Barclay’s Bank V Various Claimants (2020) - In the Supreme Court Lady Hale said that although this set of 5 criteria may be helpful in establishing whether workers who are technically self-employed are part of the employer’s business, the courts must instead look at the underlying principles of the relationship. If the contractor is ‘carrying out his or her own independent business it is not necessary to carry out the 5 incidents’
Close and sufficient connection:
The first question is what functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?
Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice
If tortfeasor is an independent contractor, the business alleged to be the employer will not be vicariously liable for their actions.
Morrisons Supermarket v Various Claimants (2020)