Vicarious Liability (rev notes)

Question 1

Vicarious liability (def)

Answer 1

= a form of strict liability which involves holding a person accountable for the tortious acts of another due to the relationship between them (Angus in reading list)

Question 2

Vicarious lb - st lb

Answer 2

Rix LJ in Viasystems v Thermal Transfers:** vicarious liability “involves no fault on the part of the employer”**

=> “It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit”

Question 3

Vlb - 2 stage test

Answer 3

= Various Claimants v. Catholic Child Welfare Society :

1. Is the relationship sufficiently akin to employment for it to be fair, just & reasonable to hold employer vicariously liable for T’s acts ?
2. Was there a sufficiently close connection btw the act and the relationship for the act to be considered as done ‘within the course of employment’ ?

Question 4

Vlb - relationship akin to employment (1)

Answer 4

Question = whether relº capable of giving rise to vic lb / justified in doing so -> no need for there to be an employee contract btw T and D, as long as similar relº

= Lord Phillips in Various Claimants v Catholic Child Welfare Society

+ see also SC in BXB and Cox v Ministry of justice

Question 5

Vlb - relationship akin to employment (2) - Relevant factors

Answer 5

= SC in BXB : relevant features to determine whether relº ‘akin to employment’

1. (i) whether the work carried out by T was being paid for
2. (ii) how ‘integral’ T’s work was to the organisation
3. (iii) the extent of D’s control over T’s work
4. (iv) whether T’s work was being carried out for D’s benefit / furtherance of D’s aims
5. (v) Situation regarding appointment & termination
6. (vi) Whether there was a hierarchy of seniority into which T’s role fitted

Question 6

Vlb - relationship akin to employment (3) - Lord Philip’s Five incidents

Answer 6

make it ‘fair, just and reasonable’ to impose vic lb on ‘employer’ = Christian Brothers at [35]:

i. Employer is more likely to have the means to compensate V + can be expected to insure against such liability
ii. Tort committed as a result of an activity undertaken by employee on behalf of employer
iii. Employee’s activity is likely to be part of some business activity of the employer
iv. Employer created risk of the tort being committed by the employee by employing him to carry out hat activity
v. Employee will, to a greater or lesser extent, have been under the control of the employer

Question 7

Vlb - relationship akin to employment (4) - not voluntary

Answer 7

= Cox v Ministry of Justice : relationship does not have to be voluntary : relº btw prison employee and prisoners (performing some tasks for prison) was ‘akin to employment’)

Question 8

Vlb - relationship akin to employment (4) - not voluntary - Independent contractors

Answer 8

= Barclays Bank Plc v Various Claimants : independent contractors carrying out business of their own will not satisfy the test

Question 9

Vlb - dual vicarious liability ?

Answer 9

Yes, accepted in Viasystems v Thermal transfer, confirmed by SC in Various Claimants v Catholic Child Welfare Society

Question 10

Vlb - verify outcome against ‘policy considerations’

Answer 10

= SC in BXB

Question 11

Vlb - within course of employment (1)

Answer 11

Test : whether there is a sufficiently close connection btw the tortious act and employment for it to be fair, just and reasonable to impose vicarious liability on D, having regard to the circumstances of employment and inherent risks that it involves = Lister v Hesley Hall, approved in Christian Brothers, Barclays Bank

+ following Various Claimant v WM Morrison Supermarkets: was T engaged in furthering D’s business or on a ‘frolic of his own’? (Lord Reed at [47])

Question 12

Vlb - within course of employment (2) - former salmond test

Answer 12

a wrongful act is deemed to be done by a “servant” in the course of his employment if “it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master”

=> changed bcs sexual abuse cases

Question 13

Vlb - within course of employment (3) - broad & potentially problematic:

Answer 13

• Mattis v Pollock : T = doorman employed by D nightclub, got into a fight w/ ppl to whom he refused entry and later stabbed one of them
  => D found vicariously liable despite the fact that T attacked the claimants partly for personal revenge
• Mohamud v Morrisons Supermarkets : T employed by D in D’s petrol station – D shouted racist insults + threatened and assaulted C (who had come in to ask if he could print some documents) to make him leave
  => D found vic lb despite T’s behaviour being a ‘gross abuse of position’ + racially motivated, act was still ‘in connection’ w/ job D entrusted to him
  + suggestion that T’s motive = irrelevant

Question 14

Vlb - within course of employment (3) - reining in the test

Answer 14

= Lord Reed in in Various Claimants v Morrisons Supermarkets:
- timing and causation are not decisive, they do not by themselves satisfy the close connection test
- neither is “the mere fact that [T]’s employment gave him the opportunity to commit the wrongful act”
- Motive is relevant

Question 15

Vlb - within course of employment (4) - relevance of motive

Answer 15

= Lord Reed in in Various Claimants v Morrisons Supermarkets: motive is relevant

• Lord Toulson’s ‘motive is irrelevant’ “should not be taken in isolation” => tries to stretch Lord Toulson’s reasoning to avoid overruling Mohamud
• Approves Lord Nicholls in Dubai Aluminium: distinction between “cases where C the employee was engaged, however misguidedly, in furthering his employer’s business, and cases where the employee is engaged solely in pursuing his own interests: on a ‘frolic of his own”

Question 16

Vlb - within course of employment (5) - travelling between places

Answer 16

can be within the course of employment = Smith v Stages

Question 17

Non delegable duties (def)

Answer 17

= exception to the rule D (employer) is not lb for the acts of independent contractors

=> where the “duty extends beyond being careful, to procuring the careful performance of work delegated to others” = Lord Sumption in Woodland v Essex (leading case)

Question 18

NDD - leading case

Answer 18

= Woodland v Essex (2013) - Lord Sumption

Question 19

NDD - 2 categories

Answer 19

1. Where D employs and indep contractor to do smth which is (or lb to become) inherently hazardous
2. Where 3 characteristics are present :
   - The duty = a positive duty to protect a particular class of persons against a particular class of risks (as opposed to duty to refrain from acting in a way that causes injury)
   - There is an antecedent relationship btw D & C which gives rise to the duty
   - Bcs of that relationship, the duty is personal to D : work may be delegable but duty still D’s

Question 20

NDD - 5 characteristic features of category 2 cases

Answer 20

1. C is vulnerable and dependent on the protection of D (eg patient, child, prisoner, resident of a care home)
2. There is an antecedent relationship which (i) involves an element of control over C by D, (ii) places C in the custody or care of D, and (iii) from which it is possible to infer that D assumed responsibility of a duty to protect C from harm
3. C has no control over how D chooses to perform obligations (personally, through employees or through indep 3Ps)
4. D has delegated to a 3P some function which is an integral part of his duty to C + the 3P is exercising D’s custody or care of C and the element of control that goes with it
5. 3P has been negligent in performing the delegated function, not in some ‘collateral respect’

Question 21

NDD - justification for imposition

Answer 21

Lady Hale in Woodland v Essex at [34] : justification for imposition of lb in cases of NDD = AOR

=> school or hospital etc have undertaken to care for children or patients etc -> includes resp of being careful who they delegate duty to do that

Question 22

Justifications for vic lb [4]

Answer 22

• holding employer lb for employee’s tort will encourage employer to be careful
• Employer has deeper pockets than employee = better able to compensate C
• Spreading the loss – easier for employer bcs supposed to insure + loss can be born by his whole business / customers
• Enterprise liability = the person who gets benefit of an activity should also bear the burdens

Question 23

Justifications for vic lb - be careful

Answer 23

= idea that the employer is in control of employees / their activities so is in a position to reduce harm caused by them

=> Fails to explain why strict liability, employer still lb where has been careful

Question 24

Justifications for vic lb - deeper pockets

Answer 24

Acc to Stevens (disagree) fails to explain why employer, and not someone w/ even deeper pockets (eg the state), since employer not necessarily at fault

Question 25

Justifications for vic lb - spreading loss

Answer 25

pb for employers of domestic staff : no customers (and mb no insurance) + if stretched to the extreme, why not the state bcs would be able to spread loss even more broadly

Question 26

Justifications for vic lb - enterprise liability

Answer 26

how does that justify lb of non-profit organisations?

Question 27

Bauermann : need to clarify distinction btw Vic Lb and NDD

Answer 27

- vic lb = about relº btw D and T ('akin to employment') - NDD = about relº btw D and V (AOR)