Vicarious Liability

Question 1

Vicarious Liability

Answer 1

Meaning: one person (D2) is answerable for the torts committed by another (D1)

Question 2

There are two conditions to be satisfied before vl arise

Answer 2

Stage 1: D1 is an employee or in a relationship akin to employment (Cox)

**Stage 2: ** The tort so closely connected to the relationship that it was right to impose liability (the close connection or field of activities test (Mohamud)

Question 3

What is currently meant by stage 1?

Answer 3

Cox - Anyone in relation that furthered the business

Barclays 2020 - drew line excluding independent contractors (not akin)

**BXB **

1.) Level of Control
2.) Is D1 integrated into D2?
3.) Did D1’s role benefit D2

Employye or akin to employment

Question 4

What is currently meant by stage 2?

Answer 4

Is the tort closely connected to D1’s assigned duties such that it is fair to impose liability on D2?

** BXB (2023):**
1. Even where D1 is in a position of power or trust (e.g. religious elder),

2. The tort (rape in this case) must be closely linked to the functions assigned to D1.

3.Social context or opportunity alone is not enough.

Question 5

Child Welfare case

Answer 5

• Brother James is an “employee” of the Institute even though he was not paid? YES
• Can he be an employee of both the Society and the Brothers? YES
• The torts (abuse) were not random acts — they were committed through the abuse of a role that the Institute and Society entrusted him with

Question 6

What are the key issues to consider in Stage 1?

Answer 6

1.) Independent Contractor v Employee

Employee works under supervision + IC Works independently, controlling how the work is done

Question 7

How to find out whether Independent Contractor v Employee

Answer 7

1.) Control Test Cassidy

2.)** Integration (Organisation) Test **- Is the worker integrated into the organisation or merely an accessory to it?

3.) Ready Mixed Concrete - Who owns equipment, unifromrs xyz

Question 8

Akin to Employment (Stage 1 in depth)

Answer 8

**Cox v Ministry of Justice **

• The prisoners were integrated into the work of the prison
• Their work furthered the aims of the prison
• They were in a position where there was a risk of negligent conduct
• They worked under direction of prison staff

Question 9

The situation where an employee is “borrowed” to work for another: is the main or temporary employer vicariously liable?

Answer 9

Mersey Docks - Main employer usually liable

Hawley - Borrowing employer liable because

1.) Control
2.) Integration

Question 10

Can both employers be liable simultaneously?

Answer 10

Viasystems

Both employers can be vicariously liable for the same tort

Re affirmed by Catholic Child - Rix LJ’s reasoning: Both can be “joint employers” for the period of the tort.

Question 11

2nd element tort must be committed in course of employment: two questions to ask

Answer 11

• What is the field of activities assigned to D1 or what is the nature of the job?
• To what extent was the wrongdoing connected to the field of activities so as to render it something for which D2 should be answerable?

Question 12

Newer caselaw on the 2nd test

Answer 12

MXX v A Secondary School [2023]

D1 (the defendant) was a former pupil doing a work experience placement at the school.
The abuse happened after the placement ended.
Contact was made through social media, outside school time and outside the school premises.
D1 had no teaching or pastoral responsibilities and was under supervision during the placement.
Because the wrongful act was not sufficiently connected to his authorized duties or the placement itself, the court held that the school was not vicariously liable.