Vicarious liability (D)

Question 1

What is the definition of vicarious liability?

Answer 1

The transfer of legal liability / obligation of reparation from A to B for a legal wrongdoing committed by A.

Question 2

What is the rationale behind vicarious liability?

Answer 2

1. He who acts through another is himself the actor (Gregory v Hill (1869) 8 M 282, per Lord Benholme).
2. The Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56.
   - Why? (Lord Phillips).
   The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.

Question 3

Stage 1: Establishing an “employment” relationship.

Answer 3

Supreme Court approach (Catholic Child Welfare… per Lord Phillips).
1. Whether A was under the management of B.
2. Whether A was accountable to B.
3. To what extent A was integrated into organisational structure of B.
4. Whether A was working on behalf of B in course of B’s enterprise.
5. Whether A was really working on their own behalf as part of their own enterprise.

Question 4

Employment type relationships.

Answer 4

Heatens Transport (St Helens) Ltd v Transport and General Workers Union and others [1973] AC 15 (trade union for members).

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

JGE v Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (Roman Catholic Church for priests).

Catholic Child Welfare…. (monastic order for monks).

Susan Cox v Minister of Justice [2016] UKSC 10 (prison services for prisoners).

Armes v Nottingham CC [2017] UKSC 60 (local authority for foster parents).

Question 5

Stage 2: The course of employment test.

Answer 5

Kirby v National Coal Board 1958 SC 514.
- Within the course of employment? During a break. Restricted area.
4 types of actions an employee can take:
- Authorised act. Gives rise to VC.
- Unauthorised mode of doing authorised act. Might fall within course.
- Outwith the scope.
- For his own purposes.

Question 6

Within the course of employment:

Answer 6

Neville v C & A Modes Ltd 1945 SC 175.
- Authorised mode.
Angus v Glasgow Corporation 1977 SLT 206.
- On work time, but not on authorised route.
Ashmore v Rock Steady Security Ltd 2006 SLT 207.
- Bouncer using violence - for personal reasons, not related to employment. Unauthorised mode of unauthorised action.

Question 7

Pushing the boundaries of the course of employment:

Answer 7

Lister v Hesley Hall Ltd [2001] UKHL 22.
- Was it within the course of employment?
ESTABLISHED A TEST!!!
Sufficiently close connection between the acts of the employee and the type of work that he was employed to do on behalf of the employer.

“It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities. His general duty was to look after and to care for, among others, the appellants. That function was one which the respondents had delegated to him. That he performed that function in a way which was an abuse of his position and an abnegation of his duty does not sever the connection with his employment.” [50] per Lord Clyde.
- Unauthorised mode.

Question 8

Indicators of a close connection: per Lord Clyde in Lister.

Answer 8

1. Determining the scope of employment should be done broadly and not technically but according to the context and circumstances - a purposively approach should be taken.
2. If the employer has conferred authority to the employee over the victims, then a generally broad approach should be adopted when considering if the act falls within the scope of employment - a contextualised approach should be taken.
3. Consideration should be given to the time and place where the act took place, but this is not conclusive – during working hours and at the place of employment.
4. Weight should be given to, but not conclusively, to whether the nature of the employment presented the opportunity to commit the act wrongfully – does the job present the risk that the employee might abuse their position, authority or discretion which has been delegated to them?

Question 9

Interpreting Lister: Dubai Aluminium Co Ltd v Salam [2002] UKHL.

Answer 9

Para 22-26 per Lord Nicholls.
“It affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged.

Question 10

Expanding Lister: Mr A M Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.

Answer 10

Para 44 ff per Lord Toulson.
“In the simplest terms, the court has to consider two matters. The first question is what functions… have been entrusted by the employer to the employee, … what was the nature of his job…
Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to Holt. To try to measure the closeness of connection, as it were, on a scale of 1 to 10…, it would miss the point…”

Lord Toulson says:
Employer creates potential risk of wrongful act being caused - if they do, they should be held liable.

Question 11

Restraining Lister and Mohamud: W M Morrison Supermarkets plc v Various Claimants [2020] UKSC 12.

Answer 11

Para 31 per Lord Reed.
“The general principle set out by Lord Nicholls in Dubai Aluminium… has to be applied with regard to the circumstances of the case before the court and the assistance provided by previous court decisions. The words “fairly and properly” are not, therefore, intended as an invitation to judges to decide cases according to their personal sense of justice, but require them to consider how the guidance derived from decided cases furnishes a solution to the case before the court. Judges should therefore identify from the decided cases the factors or principles which point towards or away from vicarious liability in the case before the court, and which explain why it should or should not be imposed. Following that approach, cases can be decided on a basis which is principled and consistent.”

Question 12

Lister’s reception in Scotland.

Answer 12

Sharp v Highlands and Islands Fire Board [2005] CSOH 111 para 33 per Lord MacPhail.
Employee injured by another employee during a football match.
- Scotland will follow SUFFICIENTLY CLOSE CONNECTION TEST.

Vaickuviene v J Sainsburys plc [2013] CSIH 67 per Lord Carloway.
- Reaches same conclusion as reasonably close connection test.

Wilson v Excel UK Limited [2010] CSIH 35 para 17 ff per Lord Carloway.
- Inner House followed Lister cautiously.

Question 13

Claiming back loss from vicarious liability cases.

Answer 13

Double recovery is prohibited.
(Tang Man Sit v. Capacious Investments Ltd [1996] AC 514 at 522 per Lord Nicholls (affirmed by Lord Hope in Jameson and Another v. Central Electricity Generating Board and Others [2000] 1 AC 455 referring to Broady Norman & Co. 1928 SC 351)).

Employer can reclaim from employee.
(Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555).

“Where the risk of a servant’s negligence is covered by insurance, his employer should not seek to make that servant liable for it”.
(Morris v Ford Motor Co Ltd [1973] 1 QB 792)
But they did in (Annabell Bell v Alliance Medical Ltd and others CSOH [2015] 34 para 104- 119).