Flashcards
Tort Law - VICARIOUS LIABILITY
Cards in this deck (13)
- 1Vicarious Liability1. Vicarious liability is the liability of D to C for damage caused to C by the negligence of a third party. It is a substituted liability whereby a party who is not morally liable is made responsible for the liability of another.
2. Vicarious liability arises not because of any fault on the part of D (the liability is strict), but rather because D stands in a particular relationship with the third party which pertained to the third party’s tort. - 2Requirementsa. vicarious liability is not an inquiry into the negligence or wrongdoing of the defendant; it is possible that D also be primarily liable for their own negligence through breach of a duty owed by D to C, but this is to be distinguished from the vicarious liability inquiry (for example, D may be vicariously liable for the negligence of their doctor while also being primarily liable for, say, failing adequately to train the doctor);
b. there must, however, be an underlying tort committed by the third party; and
c. two elements need both to be satisfied in order to establish D’s vicarious liability:
i. there needs to be a sufficiently close relationship between D and the tortfeasor; and,
ii. there needs to be a sufficiently close connection between the tort and that vicarious relationship. - 3Justifying vicarious liability1. It is a lazy but commonplace observation that the justification for vicarious liability lies in ‘deep pockets’ or the ability of D to distribute the cost. This, like similar policy arguments relating to duties of care, says nothing in particular or at all about why D specifically should be liable. It may well be convenient that D is able or better able to meet the damages required by C, but D would be justified in asking why appeals to convenience mean that he or she is to be placed in a worse position simply because the tortfeasor is unable to meet the costs of his or her tort.
2. The answer has nothing to do with convenience and everything to do with the relationship between master and servant, viz. the positioning of the defendant vis-à-vis the third party. The factors that define such a relationship will form much of the second part of this lecture, but for now it suffices to say that the master should assume the liability of the servant because ‘the servant is doing the master’s business’ (Broom v Morgan [1953] 1 QB 597, 608 per Denning LJ) and, in taking the benefit of and - 4Requirement of the relationship1. Prior to Cox, the leading authority on the close relationship question was Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the “Christian Brothers” case). In that case, which concerned the vicarious liability of the Institute of the Brothers of the Christian Schools in respect of the torts of its members, albeit that they were not employees of the Institute and were employed elsewhere, Lord Phillips had listed five factors which were indicative of a relationship justifying vicarious liability (at [35]). These were: ‘
a. 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;
b. the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
c. the employee’s activity is likely to be part of the business activity of the employer;
d. the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
e. the employee will, to a greater or lesser degree, have been - 5Weighting of the elements1. As was intimated earlier, and as Lord Reed in Cox stated, not all of these five factors are of equal weight.
a. The first (means/insurance) is clearly not a reason to impose liability: it relates in no way to the moral imperative to make the master assume the liability of the servant (and who would insure themselves if the mere act of so doing was sufficient to generate liability?).
b. It has also become increasingly clear that the fifth factor (control) is relevant only in a negative formulation: the absence of any control over what work was done will probably negative a finding of liability, but there needn’t be extensive control over how the work was done (Cox at [21]). The UKSC in Armes, reversing the decision of the Court of Appeal, found that a Council could be vicariously liable for torts committed by foster parents over their foster children, and were at pains to note that the absence of day-to-day control over how family life was run was insufficient to negative a finding of liability. The clear control with respect to what work was done was sufficient. - 6Multiple liabilityIt is also worth emphasising that dual vicarious liability between two institutions (in this case, of the Society and the Institute) is not precluded. See also Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151.
- 7Relationship - On behalf of the defendantThis justification is based upon the deemed authorisation or delegation by the employer. In Turberville v Stampe (1698) 1 Ld Raym 264, Holt CJ distinguished express command from deemed authorisation; the latter was not dependant on the former (at 265). A fire started by the servant spread to another’s property, and the master was held liable on the basis that the servant had authority from the master (despite lack of specific instruction) as it was for his benefit. It was more reasonable that the master suffer the wrongs of someone acting for his benefit than should complete strangers. See also Bartonshill Coal Co v McGuire (1858) 3 Macq 300, 306 per Lord Chelmsford LC.
- 8Relationship - Part of the business of the defendantThe second factor is clearly closely related to the first. It has long been established that the integration of the servant’s acts and the business activities of the master should justify liability. Per Denning LJ in Broom, at 608, the master ‘takes the benefit of the work when it is carefully done, and he must take the liability of it when it is negligently done.’
- 9Relationship - Defendant created risk of tortBy employing someone to carry out your activities, you introduce the risk that they will be carried out negligently. ‘[Enterprise] involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on’ (Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 at [21] per Lord Nicholls of Birkenhead). See also J Bell, ‘The Basis of Vicarious Liability’ (2013) CLJ 17.
- 10The connection between relationship and the tort (1)1. The UKSC in Mohamud affirmed the ‘close connection’ test from Lister v Hesley Hall Ltd [2001] UKHL 22. The question to be asked is whether the servant’s tort was so closely connected with his employment that it would be just to hold the employer (master) liable.
2. Vague though this test undoubtedly is, it is a significant improvement on the old Salmond test (‘an unauthorised mode of doing some act authorised by the master’). It is clear that vicarious liability can arise in circumstances where the act was specifically not authorised (see, e.g., Lister, which concerned abuse of children in care, and Rose v Plenty [1976] 1 WLR 141, which concerned a milkman taking a child on his milkrounds, specifically against company policy: the prohibited act was still within a generally authorised act, and did not take it outside the sphere of employment altogether). - 11The connection between relationship and the tort (2)1. In Lister, the close connection test was explained on the basis that the employers were liable because they undertook care of children through the warden and he abused them. This is one of the inherent risks of the enterprise (upon which the vicarious relationship was justified): the master cannot escape liability simply because that risk then materialised. See Bazley v Curry (1999) 174 DLR (4th) 45, para 31 (McLachlin J), in which substantially the same issues arose (sexual abuse of children in care).
- 12The connection between relationship and the tort (3)1. Therefore, the act must be defined broadly, rather than dissected into component tasks (Mohamud at [44] per Lord Toulson). The act of coming out from behind the counter was not to be separated from the abuse shouted from behind the counter: it was one chain of events that together fell within the assigned ‘field of activities’. This confirmed Lord Diplock’s ruling in Ilkiw v Samuels [1963] 1 WLR 991, 1004 in which a lorry driver allowed (against the express instructions of his employer) an unqualified third party to drive his lorry; the employer was still held vicariously liable for the resulting accident.
- 13The connection between relationship and the tort - Relevance of motivationFinally, it should be noted that motive is irrelevant. It does not matter that the servant was acting for his own personal reasons and not out of a desire to benefit his master’s business (Mohamud at [48]).
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- Law (Tort Law) Flashcards on Tort Law - VICARIOUS LIABILITY, created by thierry fasnacht on 18/04/2018.
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