Vicarious Liability

Vicarious Liability

1. Stage 1: Employment/Akin to Employment?

   • Akin to Employment: Multi-Factorial Test
     • Jehovah's Witnesses v BXB [2023]: The most authoritative restatement of the Stage 1 Test: multi-factorial approach.
       • Payment of Money
         • Jehovah's Witnesses [2023]:"The fact that there is NO payment of money for the work is indicative that the relationship is not akin to employment but it is far from decisive.
         • Blackpool FC v DSN [2021]: "The fact he was an unpaid voluntee...is not determinative...but is indicative [of not employee]
       • How integral to the organisation is the work of the tortfeasor?
         • Jehovah's Witness [2023]: Sewell performing duties in furtherance, and integral to, organisation's aims.
         • Cox v MOJ [2016]: Work of the prisoner integral part of the prison operation and for the MOJ's benefit.
       • The extent of D's control over the tortfeasor in carrying out the work
         • Barclays Bank [2020]: The doctor able, at any time, to refuse work from the bank. Paid a fee each time. An independent contract in any case.
         • Cox v MoJ [2016]: The prison service exercised power to compel the prisoners and provide them with certain jobs...it could not reasonably be said they were carrying out independent business.
         • Blackpool FC v DSN [2021]: "There is no evidence of any control or direction of what he [a scout] should do, or how to do it."
         • Armes v Nottinghamshire CC [2017]: The local authority was continuouslyinvolved in the monitoring, approval, and supervision of foster parents. VL.
         • Kafagi v JBW Group [2018]: No VL where Bailiff SENT WORK it could acce[t
       • Whether the work is being carried out for D's benefit or in furtherance of the organisation's aims
         • Jehovah's Witnesses [2023]: Sewell carrying out work on behalf of, and assigned by, the Organisation
       • The situation regarding appointment/termination
         • Jehovah's Witness [2023]: Appointments process to remove/admit an elder.
         • Hughes v Rattan [2022]: No disciplinary procedures
       • Hierarchical Structure into which the tortfeasor fits
         • Christian Brothers [2012]: Tortfeasor had clearly delineated role within organisation. Same in Jehovah's Witness [2023]
       • Barclays Bank v Various Claimants [2020]: INDEPEDENT CONTRACTORS NO LIABILITY; Summarised in TVZ v Manchester City [2022]
         • TVZ v Manchester City FC [2022]: "Barclays Bank concerned the extent to which Christian Brothers had expanded the first stage of the classic test for vicarious liability. The argument of D was that it is TRITE LAW that no vicarious liability for independent contractors...
         • Whether X works SOLELY for D, or has a portfolio
           • Barclays Bank [2020]: Multiple clients
           • TVZ v Manchester City [2022]: Bennell had multiple teams/independent activities.
           • Hughes v Rattan [2022]: Ability of dentists to work for other practices too
         • Whether profits/loss accrue to X or D
           • Barclays Bank at [13]: "The independent contractor works in and for his own business at his risk of profit or loss."
           • Hughes v Rattan [2022]: The dentists took their insurance risks, chose laboratories to use, took some of financial risk
         • Whether X owes D a duty of obedience
           • Christian Brothers [2012]
         • Nature of control: control over HOW work done, and what he DOES NOT do
           • Where there is no 'vestigial control' i.e. right to control what X does, 'militates against relationship being akin to employment' (TVZ v Manchester City)
     • Independent Contractor: Also Multi-Factor Test
   • Stage 2: Close Connection Test
     • Morrison [2020] (Lord Reed): "The wrongful conduct must be SO CLOSELY CONNECTED with acts the employee WAS AUTHORISED TO DO that...it may fairly and properly be regarded as done by the employee while acting in the COURSE OF HIS EMPLOYMENT"
       • Motives of Tortfeasor
         • Morrison [2020]: X not engaged in FURTHERING HIS EMPLOYER'S BUSINESS...he was pursuing a PERSONAL VENDETTA, seeking VENGEANCE...
       • Location & Work
         • BXB [2023]: "The rape was not committed while Swell was CARRYING OUT ANY ACTIVITIES on behalf of D...he was AT HIS OWN HOME and not engaged in any work for D..."
         • Christian Brothers [2012]: The tort carried out during their conduct as quasi-employee.
         • TVZ v Manchester City [2023]: "Abuse generally occurred at Bennell's homes..."
         • Mohamud [2016]: Occurred at work
       • Causual Connection between Role and Tort
         • But-For insufficient (BXB [2023]) BUT it WAS relevant that, at the time of the tort, Sewell was 'not exercising control over Mrs B because of his position as an elder."
         • Lister [2001]/ Christian Brothers [2012]: Sexual abuse DURING work
           • Steyn: "They were committed in the time and on the premises of the employers while the warden was also busy caring for the children.
     • Old Salmond (1907) test, rejected in Lister and beyond: "If the unauthorised and wrongful act of the servant is not so connected with the authorised acts as to be a mode of doing it, but is an independent act, the master is not responsible.: