What is the tort of vicarious liability concerned with?
Means an employer or someone with a relationship akin to employment can be held strictly liable for the torts of another
What are the two stages required for a claim in vicarious liability?
Various Claimants v Catholic Child Welfare Society
1. Was there a relationship capable of giving rise to vicarious liability?
2. Was there sufficient close connection between the act committed and the relationship between the defendant and committer? (adopting Lister Hall v Hesley)
How do we determine if there is a relationship akin to employment?
Catholic Child Welfare Society reiterated in BXB
1. Employer more likely to have the means to compensate the victim
2. Result of an activity being taken by the employee on behalf of the employer
3. Part of some business activity of the employer
4. Employer created the risk by engaging him
5. Employee was under the employers control
BXB: consider whether there is payment, heirarchy if they are doing it to further the business etc.
How has ‘a relationship akin to employment’ been expanded?
Various Claimants v Catholic Child Welfare Society Acts of sexual abuse have a sufficiently close connection to the relationship of employment where there is significant creation or enhancement of risk of abuse by the relationship
Cox v Ministry of Justice
Prisoners have a relationship akin to employment with the Ministry of Justice. They are intergrated into the operation of prisons to further its aims. It does not matter that the activity is not for the purpose of profit
How did Baroness Hale clear up the law on a relationship that can give rise to vicarious liability?
Barclays Bank Plc v Various Claimants
Does not apply to independent contractors. Question is whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant
How did Lister v Hesley Hall find an act to be in the course of employment?
Broader question used which asks whether there is a very close connection between the torts committed and employment, therefore in this case D was liable for intentional sexual acts carried out
How has the ‘course of employment’ strand of vicarious liability been expanded?
Mohamud v Morrisons Supermarkets
* Said there was a sufficient close connection between the position he was employed in and the act done, seems strange given that the employer was acting on his own personal prejudice
* Motive was irrelevant, committing the tort was part of a seamless episode where he purports to act for the employer’s business
How has the close connection element since been brought back under control?
Morrisons Supermarkets v Various Claimants
* D was not liable in this case because T was not acting within the scope of their employment because their wrongdoing was motivated by a desire to harm an employer
* There is a difference in cases where the employee is engaged in furthering his employer’s business and the employee is engaged solely in pursuing his own interests on a ‘frolic’
* Ts motive was relevant and there will be no liability where the employee acts for their own personal gain
What has recent developments within the case law shown us?
Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB
* The stage one test is whether the relationship is one of employment or akin to employment, the court should consider any payment, extent of D’s control over T, how appointment and termination works and whether there is a heirarchy
* The stage two test, i.e. close connection, is whether the wrongful conduct was so closely connected with acts authorised that it can be regarded as done while acting in the course of employment. Causal connection is not sufficient in itself (no special category of sexual abuse)
* Root of the idea is that employer who is taking the benefit of the activities should bear the costs of the wrong committed by the person in course of those actions
* Fact that the defendant and claimant were hanging out in a social context AFTER completing their quasi-employment was not sufficiently close
What does the Employers Liability (Defective Equipment) Act 1969 tell us?
S1- Where an employee suffers injury due to a defect in equipment provided by his employer and the defect is wholly or partially the fault of a third party, the employer will also be deemed to have contributed
What are the two categories of non-delegable duties cases?
Woodland v Essex County Council
1. Hazardous activities (those that are exceptionally dangerous whatever precautions are taken, Biffa Waste)
2. Relationship based duties, there is antecedent relationship between D and C which is a positive duty to protect a particular class from a particular risk
What are some examples of non-delegable duties under the second category in Woodland?
- Patient who is treated in an NHS Hospital can sue the NHS authorities, Cassidy v Ministry of Health
- School for the safety of its children, liability will arise for the negligence of independent contractors if they are performing functions which the school has assumed for itself a duty to perform. Does not arise for extra-curricular outside school hours
- Armes v Nottinghamshire CC: non-delegable duty may be created by statute. Local authority did not have non-delegable duty to foster children
When will an employer be liable for pyschiatric injury of an employee?
Barber v Somerset County Council
Test is whether employer breached the conduct of the reasonable and prudent employer taking positive thought and safety of its workers in the light of what it knows or ought to know
What academic commentary can be given about vicarious liability?
Stevens belives tort law is a two-party system, VL is an issue for this because it brings in a third party to the system. He argues the employeer acts through the employee but this cannot be right given how the law has developed, better to think of them as a servant (i.e. the tortfeasor and defendant are separate)
BXB confirms the policy reason underlying first stage test in vicarious liability is enterprise risk. Shows the close connection test is narrow
Employer will have deeper pockets due to insurance and finance to compensate victims. Winifield & Jolowicz, this alligns with the fundamental aim of tort law to protect the victim
Fleming, the law ensures that employers maintain high standards in employing people, training and supervision of work, meaning less claims
Consider the changing nature of work, such as gig economy where work is done on short term basis for online platforms (Uber v Aslam, uber drivers classified as workers)
