Section B- Vicarious Liability

Question 1

What is vicarious liability

Answer 1

Where a third person has legal responsibility for the unlawful actions of another
Commonly seen in the workplace where employer responsible for actions of employee
Allows C to sue employer and earn compensation

Question 2

Who are the parties to a VL claim

Answer 2

The tortfeasor
Defendent
Claimant

Question 3

Who is the tortfeasor

Answer 3

The individual who directly commits the tortious act for which another party is held responsible

Question 4

Who is the claimant

Answer 4

Person who suffered due to the actions of the T and is seeking to hold the employer liable

Question 5

Who is the defendent

Answer 5

The employer being sued by the C, who isn’t the perpetrator of the harm but taking responsibility of their employees actions

Question 6

How it is fair to hold employers vicariously liable (intro)

Answer 6

P- its fair since they are best placed to bear any losses where the tortfeasor is a man of straw (wont earn as much compensation from them)
DP- public policy is upheld as it ensures employers are liable for the employees (who they had responsibility of employing) so it should be their responsibility to compensate the public for their mistakes
WDP- lastly its also fair to impose VL on employers as this encourages and maintains high standards and discourages poor employment practices as well as unsafe and undesirable workplace practices.

Question 7

How VL isnt fair on employers (intro)

Answer 7

P- it’s unfair on E when it goes against the basic fault of principle in tort law because a defendent should be blameworthy to be liable.
DP-it seems harsh if the employee did something that was out of character or a thing the employer couldn’t have predicted that they take financial responsibility and the tortfeasor doesn’t when it’s their fault.
WDP-however they could claim the money back through wage deductions. Meaning the employer is unlikely to actually suffer loss if this is an option for them.

Question 8

What criteria needs to be established so the employer is vicariously liable

Answer 8

1. Employment status- the relationship between the D and tortfeasor and if they were an employee of the employer
2. Was the tortfeasor acting in the corse of employment- it must be closely connected to the employment

Question 9

What are the different styles of employment

Answer 9

Traditional
Non traditional
Independent contractors (self employed- employer can’t be liable)

Question 10

Tests for traditional employment

Answer 10

Control test
Intergration test
Economic reality test

Question 11

Control test- TE

Answer 11

Where the employee has control over the actions of the employee this could be regards to:
- the power to select the employee
-controlling the method of working
-the right to suspend wages or dismiss
- payment of wages
Hawley v luminar leisure ltd

Question 12

Hawley v luminar leisure ltd- TE

Answer 12

Control test
Held- court decided that the club employed him as great exercised so much control over how he should do his work. The club was VL.

Question 13

What are the problems with the control test being used in regards to different methods of employment such as uber eats drivers

Answer 13

P- uber and just eat drivers are usually responsible for their own jobs and as a result no one is in control as they choose as and when to accept the work. As a result often driers for uber are considered as self employed and so if an incident occurs then the C can be left with inadequate compensation for losses
DP- yet the driver does still have to be selected to be able to take and accept jobs so it’s unclear if the control test would work. As technically someone dies have to allow them to work the job.
WDP- therefore it can be proven there has been a negligent hiring, negligent training to negligent supervision of its driver, then uber could be found accoutable. However this is difficult to initiate in court and could deter the C from cliaimimg.

Question 14

The intergration test (TE)

Answer 14

This test was established by lord denning in Stevenson Jordan and Harrison ltd v McDonald and Evan’s
It states that a worker will be an employee if his work is fully intergrated into the business
If a persons work is only an accessory to the business that person is not an employee.

Question 15

Why is the intergration test problematic

Answer 15

P- as it would be difficult to apply to certain jobs such as Christmas temps as they could be responsible for the damage caused to anither but companies can avoid liability due to an ‘employee’ not being fully intergrated into the business.
Dp- this could them impact methods of employment as employers could find that a zero hour contract is beneficial for them or attractive to them in order to not have to pay if an incident occurs.
WDP- however this test is really Simple to understand for the lay person which ensures the law is accessible to all and therefore is more likely to be access for justice.

Question 16

Economic reality test (TE)

Answer 16

This test considers various factors which may indicate employment or self employment
It was established in ready mixed concrete v MPNI
The courts will look at factors such as
-uniform
-methods of payment
-tax/NI
-ability to hire
-providing of tools

Question 17

A limitation of having multiple tests for traditional employment

Answer 17

P- although having multiple tests can be useful in that it allows the C to have more chances of proving if the employer wil be accoutable for the actions of an employee, it can bring about consistent decisions
DP- this is an issue because it conflicts with the ROL as the law is no longer certain and acertainable as we don’t know which test the courts will use to establish employment status
WDP- as a result lawyers cannot advise their clients on the likelihood of their case. This limits a claimants access to justice.

Question 18

Non traditional employment

Answer 18

Where the D does not fit within the traditional employment tests the court can take this path
‘Akin’ to employment

Question 19

‘Akin’ to employment

Answer 19

If the courts beleive
The relationship between the tortfeasor and the defendent (employer) is similar to employment (but does not fit in the traditional tests) AND
- if there is a relationship, there must be a sufficiently close connection between the wrongful act and the relationship between the tortfeasor and employer
If the above criteria is satisfied, then the court wil say the relationship is akin to employment buy only where it is fair just and reasonable for them to do so.
Catholic child welfare society (always include)

Question 20

Catholic child welfare society (always include)

Answer 20

A large number of men (C) alleged historical sex abuse from when were at school,
The tortfeasors were brothers of the institute- the institute (D) did not own te school buy their members aced as headmaster and teachers of school and the members weren’t employed by the institute but the school.
Held- catholic institute was vicariously liable for acts committed by teachers although didn’t employ them.
This case sets out the 5 criteria of NT employment

Question 21

T criteria of akin to employment

Answer 21

1. The defendent is more likely to have the resources to compensate the C than the primary tortfeasor
2. The tort was caused by activities done on the Ds behalf
3. The tortfeasor is likely a part of the Ds business activities
4. The defendent created the risk of the tort by employing the primary tortfeasor
5. The defendent is likely to have some control over the primary tortfeasor
   Not all these factors need to be present
   Apply 3 when relevant

Question 22

Cases for NT employment

Answer 22

Cox v ministry of justice
Armes v Nottinghamshire
Trustees of the Barry congregation of Jehovah’s witnesses v BXB

Question 23

Cox v ministry of justice- NT

Answer 23

C was employed by prison as catering manager and negligently injured by a prisoner
Held-on appeal stated that the relationship between the prisoner and prison service was similar to that of an employer and employee as the prison service benefitting from the prisoners work.

Question 24

Armes v Nottinghamshire- NT

Answer 24

The SC clarified that foster parents are in a relationship akin to employment with the local authority

Question 25

Trustees of the Barry congregation of Jehovah’s witnesses v BXB - NT

Answer 25

C, a Jehovah’s Witness began attending Ds congregation and became a close friend to an elder and his behaviour became erratic and when speaking to his wife, he pushed C to the floor and raped her. Supreme Court- appeal allowed and organisation were not vicariously liable and applied the tests - D better financial situation but activity undertaken was not on behalf of organisation, not a part of business activities, did not create risk, not closely connected

Question 26

Evaluation for akin to employment

Answer 26

On the surface Trustees of the Barry congregation of Jehovah’s witnesses v BXB has not changed the law surrounding VL all that much however its apparent despite the two landmark cases of Barclays Bank and Morrisons there had still been a lack of clarity about what the close connection test involved. A positive is that five principles for Christian brothers have been applied here in Trustees of the Barry congregation of Jehovah’s witnesses v BXB which provides a useful guide regarding the current state of the law in this area. Trustees of the Barry congregation of Jehovah’s witnesses v BXB- C left without adequate compensation for the depression and PTSD she suffered

Question 27

Independent contractors

Answer 27

An independent contractor is self employed and is therefore legally responsible for their own actions and can be sued by the victim of a tort committed by him. The case of Barclays Bank plc v various claimants led to the SC reinforcing the decision that independent contractor defence is still available

Question 28

Barclays Bank v various claimants- IC

Answer 28

Claimants against bank when alleged sexual assaults were committed by a doctor During the recruitment process and doctor wasn’t employee of bank. Held- appeal- employers should be ale to use IC defence and Barclays not liable for actions of doctor

Question 29

What is a good thing about the decision in the case of Barclays Bank v various claimants

Answer 29

P- recent decision showing a modern day approach to the way in which IC are treated and that employers will not be automatically liable for the actions of someone who is self employed. DP- the decision was decided by our most prestigious and experience judges- SC allowing us as the public to have trust in the decision made. WDP- however it can still be confusing as to the court will accept the IC defence or if the tortfeasor will be considered akin to employment- which is clearly unfair on the claimants

Question 30

Independent contractors or akin what are the issues

Answer 30

P- IC defence is a recent decision showing a modern day approach to the way which IC are treated and that employers will not automatically be liable or actions of someone who is self employed- favours the D. DP- furthermore this decision was decided by most prestigious and experience judges allowing public to have trust in decision made WDP- however can still be confusing unaware if courts wiki accept IC defence or akin to employment- clearly unfair on the C as they don’t know where they stand and could lead to lengthy litigation in court increasing costs of an already expensive process

Question 31

What is the second test to vicarious liability?

Answer 31

Was the tortfeasor acting in the course of employment

Question 32

What are the different parts in acting in the course of employment?

Answer 32

Acting against orders Employee committing an negligent act Frolic of their own Intentional torts/crime

Question 33

Acting against orders

Answer 33

If the employee is doing their job but acts against orders in the way that he does it the employer can be liable for any talk committed by the employee the employer will be liable if they benefit from the work of the employee. Rose V plenty

Question 34

Rose v plenty

Answer 34

Dairy instructed its milkman not to use child helpers on the milk grounds and they did and one was injured Held-dairy it was vicariously liable as they were benefiting from the work done by the boy.

Question 35

How may the decision rose v plenty be unfair on the employer?- acting against orders- course of employment

Answer 35

P-this ruling can seem to be unfair on the employer as they specifically prohibited the use of children on the milk grounds, yet liable. DP- this can become an issue because even if employers have done everything they can do to express the dos and don’ts of work, but a benefit is gained then they will always be liable which could lead to poorer training and employee hire as regardless they would be held accountable, putting the public at risk. WDP-however, it encourages greater vigilance by the employer and ensure all staff are appropriately trained understanding their consequences if the actions breach policy.

Question 36

Employee committing an negligent act- course of employment

Answer 36

If the employee does a job badly, the employer can be liable for the employees actions that cause injury to another Would the reasonable man performing the same task have done the same if the reasonable man wouldn’t have the employer will be liable. Century insurance v northern Island Road transport board

Question 37

Century insurance V Northern Ireland Road transport board

Answer 37

A petrol tanker driver lit a cigarette and threw a match on the ground at a petrol station causing an explosion Held-employer was liable the reasonable man wouldn’t have thrown a match on the ground and there is a connection between the role of the employee and the wrongful act.

Question 38

How is there consistency in the law when applying an employee committing a negligent act- corse of employment

Answer 38

P-an employee committing an negligent act uses the same test as negligence, this kind of consistency makes the law simple to understand for the lay person E-this test is beneficial as it puts more pressure on the employment to ensure they are diligent with checking whom they employ and will encourage them to train their employees to act inappropriate manner before they cause harm to others. This intern will therefore be protecting the public. C-however, an employer can never fully control their employees and therefore if a person is negligent, it’s unfair to force accountability onto the employer.

Question 39

Frolic of their own-course of employment

Answer 39

If an employee does something outside that area of work or time of work, then the employer will not be liable. This will then be considered a frolic of their own. Hilton V Thomas Burton LTD Smith V stages Twine V beans express If a police officer uses their uniform to gain the trust of a victim, it will not necessarily give a rise to vicarious liability if the officer commits a crime - N V chief constable of Merseyside police.

Question 40

Hilton V Thomas Burton LTD-frolic

Answer 40

Some employees took an unauthorised break from the driving firms van to go to a café and got an incident Held-employers not liable as the workmen were on an unauthorised frolic of their own are not acting in the course of employment

Question 41

Smith V stages-frolic

Answer 41

The employee was driving back to his place of work after working elsewhere and caused an incident Held-the employer was liable because he was acting in the course of employment and was being paid during his travelling time

Question 42

Twine v beans express- frolic

Answer 42

Claimant’s husband was killed through the negligence of a driver who had been forbidden to give lifts-unauthorised lifts Held-the employers were not liable as the driver was doing an unauthorised act and the employers were gaining no benefit

Question 43

NV chief constable of Merseyside police

Answer 43

Using police uniform to gain the trust of a victim Held-police not vicariously liable

Question 44

Why is the case of NV chief constable of Merseyside police- (frolic) morally incorrect

Answer 44

P-the outcome of this case is morally incorrect because the police is being used for trust and this trust is broken so the police should pay compensation for one of their own committing this act and abusing their power and the victim is also left without compensation. DP-this conflicts with the case of Leicester where the abuse of trust was closely connected. The employer of a teacher is vicariously reliable if they have use a student on the premises and during work hours this isn’t considered frolic and so the employer was vicarious reliable. WDP-although it seems unlikely that this case would’ve been decided in the same way today following clarification around intentional thoughts and following the case of Robinson VCCWY as we now know that the police do owe a general public a duty of care. VWDP-also recent incidents involving the police such as the death of Sarah Everard causing uproar and the need to uphold public policy-Parliament do need to intervene and make it clear what professions this applies to to create consistency.

Question 45

What’s a problem with having multiple factors to consider when siding if Someone has acted in the course of employment?

Answer 45

P-one problem with having multiple factors in deciding if someone has acted during the course of employment is that it can be confusing to the claimant an ordinary lay person which factor the tortfeasor falls under and if the employer will be vicariously liable or not DP-this can lead to lengthy litigation in court which intern can increase the court cost, putting a financial strain on the C who already has been negatively affected by the T actions. This intern could deter the claimant from initiating a case.. WDP-however, having multiple common law examples allows judges to have a wide range of cases to support them when understanding the case in front of them. Which could in turn increase the claimants chances of success?

Question 46

Intentional torts/crime

Answer 46

Where the T commits an intentional tort/crime in the corse of employment, the courts must establish if the crime committed by the employee was ‘closely connected’ to what they were employed to do (lister v Hesley hall) Dubai aluminium v salaam confirmed that if the crime is committed whilst the employee is supposed to be working, the employer is liable if the act is seen to be closely connected to their job. Mohamud v Morrisons supermarket Morrisons supermarket v various claimants

Question 47

What did Dubai aluminium v salaam confirm (intentional torts)

Answer 47

if the crime is committed whilst the employee is supposed to be working, the employer is liable if the act is seen to be closely connected to their job.

Question 48

Lister v Hesley hall

Answer 48

Was the tort closely connected to their job Warden of a school for children was connected of sexual assault Held- HOL held there was a close connection between his job and what he was employed to do, as the assaults were committed on the school premises and so employer VL

Question 49

Mohamud v Morrisons supermarket (IT)

Answer 49

A man employed at the Ds petroleum station assaulted a customer Held- employee was acting within his corse of employment- within working hours and was a close connection.

Question 50

Morrisons supermarket v various claimants (IT)

Answer 50

Employee uploaded personal information of colleagues to a file and shared it to newspapers Held- the employees actions were outside the corse of employment and so no close connection

Question 51

Defences

Answer 51

Consent Contributory negligence

Question 52

Modern sections

Answer 52

Akin Intentional torts/crimes’ Independent contractors

Question 53

How is VL good

Answer 53

- better compensation - high workplace standards- public policy - makes sure employer liable for employees actions- more investigating when hiring

Question 54

How is VL bad

Answer 54

Goes against fault based liability Seems harsh Not always employers fault- somethings can control

Question 55

consent

Answer 55

the defence of consent can be used to argue that C voluntarily accepted the risks associated with the actions of the employee or agent. this defence can limit or eliminate the liability of the employer or principal smith v charles baker + sons

Question 56

smith v charles baker + sons- consent

Answer 56

employee injured by fallung stones and employer argued employee had consented by continuing to work in dangerous conditions held- did not imply consent- employer liable

Question 57

contributory negligence

Answer 57

CN in VL cases involves situations where the Cs own negligence contributes to their own harm, potentially reducing the damages awarded examples: jones v livox quarries ltd- C injured while riding on towbar, employer Vl for drivers negligence but damages reduced due to CN mckew v holland + hannen + cubitts