Establishing Grounds of Claim:
Catholic Child Welfare case
VL is a form of secondary liability- employers liable for the tortuous conduct of their employee.
Catholic: to establish a case:
- Employee has to have commited a tort.
- A relationship between the employer and the employee
- there needs to be a close connection that links the relationship between the employee and employer.
- Did the employee commit a tort?
- Majrowski
refers to all tortuous conduct both at common law and in statute.
case facts: civil wrongs case can be committed vicariously/
- Relationship between employer and tortfeasor.
Types of relationship:
- Contract of service - D is the employee
- Contract for service - where independent contractor is involved - usually doesn’t attract liability.
- relation ‘akin’ to employment: people who engage in casual work ‘Uber’
- Relationship between employer and tortfeasor.
- Significance of ‘control’
Yewens
Cassidy
Kahn-Freud
Yewens - an employer is anyone who has control over employee.
- master/servant relations.
Cassidy - this case highlighted employer/employee relations that do not have ‘control’
- eg. doctors use their own initiative, they are not subject to the control of their employer.
Kahn - the reference to control is ‘unrealistic and grotesque’
- Relationship between employer and tortfeasor.
How employer/employee relationship looks:
- Ferguson
- Market Investigations
- Ready Mixed Concrete
Ferguson: workers identified themselves as ‘self-employed sub-contractors’
- they however can be dismissed or deployed by the employer, he provided them with tools.
- held: does matter what the employee calls himself there is evidence of control.
Market: control isn’t the only determining factor - when fixed wages and stable work place is involved.
Ready: drivers bought their own vehicle and maintained it with there own expenses.
- LJ Mekener: drivers owning vehicles and taking advantage of loss and profit = independent contractors.
- Relationship between employer and tortfeasor.
Relationship ‘akin’ to employment
Catholic Child Welfare
Cox
Catholic Child - sexual assault scandal with teachers in school.
- the brothers lived and worked at the school under the control of teaching order.
- it was held that the ‘teaching order’ was liable for the brothers actions as they acted in ‘furtherance of the teaching order mission which is to teach the boys. The relationship they had is akin to one of employment.
Cox: the ministry of justice was vicariously liable for the tortuous actions of prisoners who worked in the prison -
- court held the prisoners were well integrated into the kitchen system and the relationship was akin to one of contract.
- Relationship between employer and tortfeasor.
Relationship ‘akin’ to employment
Armes
Barclays Bank
Mersey Docks
Armes - LA liable for action of foster parents due to statutory duty.
Barclays: bank held liable for sexual misconduct of DR they refer their employees to.
- held the DR was an IC and it was part of the banks activity to refer him.
Mersey: MD was liable for injury their hired driver caused.
- where there are 2 or more employers it is unlikely the the worker would be an employee of the hiring company.
- Relationship between employer and tortfeasor.
Relationship ‘akin’ to employment
Viasystems Ltd
Viasystem - where the employee is integrated into the operations of both employers then they are both vicariously liable.
- Close connection between D, the tortfeasor and the commission of the tort?
Salmond test.
Closely connected test - Lister
Salmon test: tortfeasor’s conduct had to be
- authorised by the employer or
- an unauthorised means of performing the Job.
Lister: D is liable is T’s conduct falls within the course of employment:
case fact:
- warden sexually abused kids in car home
- not authorised by employer or unauthorised means
- closely connected test developed.
If the tort committed is closely connected to the employment then the employer is liable
- Close connection between D, the tortfeasor and the commission of the tort?
Scope of employment
- Century Insurance
- Smith
Century: having cigarette break at the petrol station catches fire.
- that break was classed as part of employment.
Smith: 2 employees on work travel - with expenses paid for.
- had accident - the employe liable as the journey fell within the course of employment.
- Close connection between D, the tortfeasor and the commission of the tort?
Scope of employment
- Storey
- Staton
storey: driving to friends house after work is not included - social visit.
Staton: E cycled to pick up wages, this was classed as an incidental act of employment.
3.Close connection between D, the tortfeasor and the commission of the tort?
Prohibited/criminal conduct
- Limpus
- Rose
Limpus: D told employees not to race buses
- T raced the bus - D is still liable - its unauthorised use of vehicle.
- Rose: Milk man who allowed child to do his milk runs, child got injured.
D is liable as the child was furthering the employer’s interest.
3.Close connection between D, the tortfeasor and the commission of the tort?
Prohibited/criminal conduct
- Mohamud
- Bellam
- Brayshaw
Mohamud: Morrision worker case:
- T was subject to racism - hit the C while serving
- D was liable for as it fell within the field of employment any interaction with consumer counts as field of activities.
Bellam: managing director punched one of his employees at Christmas party after party, he punched him after he criticise his policy on work issue
- Court said it happened within the course of his employment - he was directing mind of company and punch was brought about when he was challenged on work issue
Brayshaw: DR who befriended patient in GP.
- went to religious gathering together C tried to claim psyc harm.
- no VL this is a private activity.
Liability for Independent contractors.
exceptions to no VL
- Woodland
- Ellis
- where employer owes a non-delgable duty to the C
woodland: C a student went swimming lesson delivered by instructor who was hired by LA
- C drowned and suffered brain damage.
- Held the LA was liable via a non-delegable duty they owed to C.
- This duty arises in institutional settings where C is vulnerable.
- Employer authorised the IC to commit a tort.
Elis: Gas company liable for T’s action once they authorise the action.
Woodland - Lord Sumption duties
- C is vulnerable or dependant on the protection of D.
- where there is a pre-existing relationship between C and D
- C is placed in custody of charge of D
- where it can be imputed that D was under duty to protect C
Woodland - Lord Sumption duties 2
D delegates to 3rd party a function that is a part of his duty to C
3rd party is negligent in performance of the function.
