Vicarious Liability

Question 1

What is the definition of vicarious liability?

Answer 1

The strict liability of ‘D1’ for delicts committed by D2 against P.

Question 2

What are the stages of vicarious liability?

Answer 2

First, D2’s conduct to the pursuer must have amounted to a delict.

Stage 1 - the relationship between D1 and D2 must be that of employment, or ‘akin to employment’.

Stage 2 - D2’s wrongful conduct must be closely connected to its authorised acts, that it can be fairly treated as done in the course of its employment, and thus holding D1 liable.

Question 3

Stage 1: Establishing an “employment” relationship

Answer 3

A multifactorial test: was D2 integrated in the business of D1?

Non-exclusive list of factors:
1. Whether D2 was under the management of D1
2. Whether D2 was accountable to D1.
3. To what extent D2 was integrated into D1’s organisation.
4. Whether D1 collected income tax and NI contributions on behalf of D2
5. Whether D1 supplied D2 with necessary equipment

Question 4

Akin to employment relationships

Answer 4

Lister v Hesley Hall Ltd [2001] UKHL 22 (resident school for housemaster).

BXB (jehovah’s witnesses

Cox v Minister of Justice [2016] (prisoners working in kitchen services).

Question 5

Lister v Hesley Hall Ltd [2001]

Answer 5

Case involving historic child sex abuse by a warden at a boarding school so HL developed the ‘close connection’ test to deal with the facts of that case. While abuse of children was not undertaken ‘in the course’ of a warden’s employment, those acts had a sufficiently ‘close connection’ to that employment.

Now, this has become accepted as the general test for establishing the connection between D2’s wrongdoing and the relationship between D1 and D2.

Question 6

BXB v Jehovah’s Witnesses 2024

Answer 6

Confirms the test ‘is whether the relationship between’ D1 and D2 ‘was one of employment or akin to employment’

Question 7

Grubb v Shannon 2018

Answer 7

Confirms that a formal employment relationship is not required for vicarious liability, in situations where D2 was entrusted to carry out tasks for D1 (for D1’s benefit) and was a sufficiently integrated part of D1’s business.

Question 8

Stage 2: The course of employment test.

Answer 8

Whether the wrongful conduct was so closely connected with acts that D2 was authorised to do that it can fairly and properly be regarded as done by D2 while acting in the course of their employment.

Question 9

indicators of a close connection

Question 10

Rose v Plenty

Answer 10

D1 had expressly prohibited the use of children to help deliver milk. D2 continued to do so and one kid was injured because of his negligent driving. Court found it was still within the scope of his employment, even though expressly prohibited.

‘”In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employers’ business, it is usually done in the course of his employment, even though it is a prohibited act.”

Question 11

What about deviations from the assigned task?

Answer 11

If the conduct results from purely a ‘frolic of the employee’s own’, then the employer will not be liable.(Williams v Hemphill)

Question 12

Matthis v Pollock 2003

Answer 12

A bouncer authorised to use force left after an incident where he was embarassed, armed himself at home, returned, and stabbed a patron. The court still imposed vicarious liability because the attack retaliated against a challenge to his authorised authority and was closely connected to his role.

Established that an employee acting pursuant to a personal vendetta while discharging their authorised functions does not necessarily prevent the finding of a close connection.

Question 13

What is pro hac vice employment?

Answer 13

Where an employee is hired out to work under instructions of another employer.

General rule is that the original employer remains liable.

The way to escape liability, B must establish that it has transferred to A not only the power to tell the employee what to do, but also the power to direct the employee how to perform that instructed task.

Question 14

Can there be dual employment?

Answer 14

Viasystems v Thermal Systems says yes, if it can be shown that the employee was sufficiently integrated into the business of both employers

An English case not yet brought into Scots law but endorsement of the supreme court makes it likely