vicarious liability

Question 1

what is vicarious liability

Answer 1

• one person is held liable for the torts of another, even though that person did not commit the act itself
• a form of strict liability (in that D is not at fault)
• most common type is when employers are held liable for the torts of their employees that are committed during the course of employment

Question 2

what are the requirements for vicarious liability?

Answer 2

there are three requirements to establish that an employer was vicariously liable:
1. a person has committed a tort (usually negligence)

2. the person committing the tort was an employee
3. the employee was acting in the course of their employment when the tort was committed

Question 3

the person has committed a tort

Answer 3

• vicarious liability most frequently occurs where an employee has committed the tort of negligence

Question 4

employee

Answer 4

• c must show that the employee has ‘employee status’
• there are difficulties distinguishing between employees and independent contractors
• employers are liable for the acts of employees but not independent contractors

Question 5

employee vs contractors

Answer 5

employee:
- must obey instructions concerning when or how to perform the job
- has an ongoing relationship with the company
- company sets the work hours
- company requires full-time work at its business
- company controls where the work is performed and how it is done
- the company provides tools and materials

contractors:
- responsible for the outcome of the job and how it is done
- advertises and makes services available to the general public
- can set his or her own hours
- can work for more than one company at the same time
- can complete tasks at the office or home and decide how to finish the job
- provides own tools, materials and facilities

Question 6

what are the tests for ‘employees’

Answer 6

• the courts have established a number of different test to establish if a person is an employee or not:
  1. control test
  2. organisation test
  3. multiple test

4. sufficiently close test

Question 7

the control test

Answer 7

Yewens v Noakes
- a person would be considered an employee if the employer had control over the work and was in a position to lay down how the tasks should be done

Walker v Crystal Palace Football Club
- a person would be considered an independent contractor if they were engaged by the employer to do a particular task, but allowed discretion as to how and when to do it

Question 8

the organisation (or integration) test

Answer 8

• this test looks at how closely the worker is involved with the core business of the employer

Stevenson, Jordan and Harrison v MacDonald and Evans
- the more the worker is integrated into the organisation, the more likely they are to be employed

Question 9

the multiple test

Answer 9

the modern test was established in:
ready mixed concrete v minister of pensions

• lorry drivers were independent contractors because RMC did not retain enough control over them
• three conditions for being an employee are:
  1. employee agrees to provide skill in return for a wage
  2. employer exercises a degree of control
  3. nothing in terms of the work is inconsistent with employment (for example the worker cannot delegate their work to someone else)

Question 10

sufficiently close test

Answer 10

cox v MOJ (2016):
- the SC had to decide whether the prison service was liable for an injury to a catering supervisor caused by a prisoner working in the prison kitchen
- the prison service was held liable for the actions of a prisoner working in the kitchen because the relationship was ‘sufficiently close’ to an employment relationship

Uber v Aslam and Farra (2018):
- the COA dismissed an appeal by Uber against an employment tribunal ruling that uber drivers were employees

• this case illustrates the complexity of deciding whether a person is an employee or an IC. However, it shows the courts are willing to be flexible with employment status

Lewitt v Euro Building maintenance (2019):
- The court applied the sufficiently close test and said that even though Fowler was technically a subcontractor, the relationship was sufficiently close to an employer/employee relationship because Fowler was effectively under D’s control and was answerable to the site supervisors

Question 11

acting in the course of his employment

Answer 11

Century Insurance v northern ireland transport board:
- an employee was employed to deliver petrol to garages. whilst delivering petrol, he lit a cigarrette, dropped it and caused an explosion

• an employer will be vicariously liable where an employee is doing his job in a negligent way

rose v plenty
- a milkman was told by his employers not to let children help him while he was doing his rounds. regardless, he allowed a child to help and the child was hurt while riding on his milk float, due to the negligent driving of the milkman

• an employer was liable because the milkman was still doing his job, albeit in a negligent way

Question 12

frolic of his own

Answer 12

Storey v Ashton
- D sent two employees in a horse and cart to deliver some wine. on the way back the two employees went on a diversion to do some business of their own. while doing this, C was run over, owing to the negligence of the employee driving the horse and cart

• D was not liable for the negligence of his employee because he was on a frolic of his own

Question 13

doing authorised work in a forbidden manner

Answer 13

limpus v london general omnibus (1863)
- a driver was prohibited from racing with other buses. he disobeyed this and caused a crash
- he was doing an act which he was authorised to do (driving a bus) which meant he was in the course of his employment, even though the way he was doing it was improper and had been prohibited

Iqbal v London Transport Executive (1973)
- despite being forbidden to drive the bus, a bus conductor still did so and caused an accident
- the bus company was no vicariously liable because the conductor acted against direct instructions

Question 14

travelling to work

Answer 14

smith v stages (1989):
- this case clarified the issue of liability arising from journeys

• travelling to work is not in course of employment, travelling between work places is in the course of employment, derivation from journey is not in the course of employment

Question 15

an unlawful act of an employee

Answer 15

Lister and Others v Hesley Hall Ltd (2002):
- the Cs were residential students at a school for difficult children owned by the D. One of the wardens employed at the school has sexually abused a number of the children. The C’s argued that the owner of the school was vicariously liable for the harm they suffered as a result of the abuse

• HOL held that the owner of the school was vicariously liable . they used the ‘closeness of connection’ test to determine the vicarious liability