2B - Vicarious Liability

Question 1

VL introduction

Answer 1

VL is where one person (usually the employer) is liable for the tort of another (usually the employee). This is a strict liability tort as there is no need to prove fault on the part of the employer
In order to be liable, the Salmond Test shows that the worker must have committed a tort

Question 2

What is the Salmond Test?

Answer 2

Shows that an employer will be liable for the torts of his employees if the worker

• has committed an unintentional tort
• is an employee under a contract of service as opposed to an independent contractor (who is a self-employed worker and a contract for services), and
• the tort is committed in the course of his employment

Question 3

ST Step 1: The worker has committed an unintentional tort

Answer 3

You will need to identify the unintentional tort that has caused harm.

Poland v Parr: this included D’s actions in protecting the employers property despite it being after working hours

Torts that are often proven: negligence (this is the most common), occupier’s liability, private nuisance, Rylands v Fletcher

DO NOT need to prove the tort

Question 4

ST Step 2: they are an employee under a contract of service as opposed to an independent contractor (who is self-employed worker under a contract for services)

Answer 4

To decide whether the worker is an employee, and therefore working under a contract of service, the courts have developed many tests

• the control test
• the integration test
• the economic reality test

Question 5

ST Step 2: the control test

Answer 5

does the employer have control over the employee?

ie, do they have the power to select the employee, control over their method of working, the right to suspend and dismiss and the payment of wages

Short v JW Henderson

Mersey Docks and Harbour Board v Coggins and Griffiths

Question 6

ST Step 2: the integration test

Answer 6

Developed in Stevenson, Jordan, and Harrison Ltd v McDonald and Evans

A worker is an employee if their role/work is fully integrated into the business. If it is just an accessory to the business then he/she is not an employee

Question 7

ST Step 2: the economic reality test

Answer 7

The control and integration tests are still valid but courts tend to use the ‘economic reality test’

Established in Ready Mixed Concrete v MPNI which proved three conditions to be satisfied to decide whether the worker (tortfeasor) is an employee

1. worker provides skill in return for a wage: more likely to be an employee if they are paid a regular salary
2. worker agrees to the employer having control: more likely to be an employee if the employer exercises a lot of control
3. all other factors are consistent with there being a contract of service

• tax and national insurance - does the employer automatically deduct tax and national insurance from the worker’s wage
• self-description
• tools provided
• uniform

Question 8

ST Step 2: what about if there are potentially two employers?

Answer 8

Viasystems v Thermal Transfer held both employers can be liable and equally so.

The court must look at who was entitled and in theory obliged to control the employer’s negligent act in order to prevent it?

Question 9

ST Step 2: recent developments

Answer 9

Lister v Helsey Hall: The first step of which is relevant

‘was the relationship between the employer and employee ‘akin to employment?’

Catholic Child Welfare Society v Various Claimants: set out 5 steps which are useful but not decisive

Supreme Court in Barclays Bank v Various Claimants: even if all five stages ^^^ are passed, you must look at the underlying relationship to see if its ‘akin to employment’

Cox v MoJ: prisoner and prison

Armes v Nottingham CC: Council had control over foster parents

Question 10

Catholic Welfare Society v Various Claimants

Answer 10

Set out 5 criteria which make it fair, just and reasonable to find a relationship ‘akin to employment’

1. employer has means to compensate the V
2. employee acting on behalf of the employer
3. employee’s activity is part of the business
4. employer created a risk of tort
5. employer has control of employee

Question 11

ST Step 3: torts committed ‘in the course of employment’

Answer 11

In order to be liable, the employee must have committed the tort ‘in the course of employment’

An employer will be liable in 3 situations

1. The employee is doing an expressed or implied authorised act: Rose v Plenty
2. The employee is doing an authorised task but does something which has been expressly forbidden by his employer: Limpus v London General Omnibus Company
3. The employee is doing an authorised task but does the work in a negligent way: Century Insurance v Northern Ireland Transport Board

Question 12

ST Step 3: torts committed ‘in the course of employment’: when will the employer not be liable

Answer 12

1. ‘on a frolic of his own’: Hilton v Thomas Burton
2. Unauthorised act with not benefit to the employer: Twine v Beans Express
3. Expressly prohibited act: Beard v London General Omnibus Co

Question 13

ST Step 3: recent developments - Lister v Hesley Hall

Answer 13

Lister v Hesley Hall - the second step is relevent

Was there close or sufficient connection between the relationship and the tortfeasor’s wrongdoing

Question 14

ST Step 3: recent developments - Morrisons Supermarkets v Various Claimants

Answer 14

When looking at step 2 of Lister v Hesley Hall consider:

• what functions or ‘field of activities’ have been entrusted by the employer to the employee
• Court must decide if 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

Question 15

ST Step 3: recent developments - Mohamud v Morrisons Supermarkets

Answer 15

When looking at step 2 of Lister v Hesley Hall consider:

Court held that the act of the employee punching the C was sufficiently close enough as his job was customer facing

Question 16

ST Step 3: recent developments - Barclays Bank v Various Claimants

Answer 16

Independent contractors

When looking at step 2 of Lister v Hesley Hall consider:

employers are generally not liable for the torts of independent contractors