Flashcards
Tort - Vicarious Liability
Cards in this deck (47)
- 1What kind of liability does a defendant in a case of vicarious liability incur?Strict liability.
- 2Is vicarious liability a tort?No, it's a mechanism for making a claim.
- 3What is the meaning of 'primary' and 'secondary' liability in this context?Primary refers to employer's liability, and secondary refers to vicarious liability.
- 4What are the implications of this strict liability?Claims under VL can sometimes be easier to make. All you need to do is find an employee at fault, and then you have strict liability.
- 5Can an employer be sued for both simultaneously?Yes, this is advisable.
- 6What are the justifications for vicarious liability?Benefits and burdens of employees
Deep pockets
Loss allocation
High standards - 7What torts (on the syllabus) can an employer be held vicariously liable for?• Battery
• Assault
• False imprisonment
• Negligence
• Libel
• Slander - 8What are the three necessary elements of vicarious liability?(a) that a tort as been committed (by the tortfeasor),
(b) that the tortfeasor is in an employment relationship or relationship akin to employment with the defendant, and
(c) that the tort was committed in the course of employment. - 9Things to bear in mind about vicarious liability• Each case decided on a fact by fact basis
• Few of the authorities involve torts - because defining who is an employee is relevant to lots of types of claims. Case law that answers that question can come from any related area of the law.
• Consider the year that authorities were decided - 10Who is an employee? control test. Case.Master and servant. A servant is subject to the command of his master. Level of 'control' the most important factor.
Yewens v Noakes (1880) - 11Who is an employee? control test. Case.Control is not as important as it used to be, and not decisive in every case. Still considered a factor.
Argent v Minstry for Social Security (1968)
Facts: part time teacher / actor. He could cancel teaching commitments if an acting job came in. Held: he was held to be an independent contractor, so he had a contract FOR service, not a contract OF service. - 12Who is an employee? integration test. Case.Whittaker v Minster of Pensions (1967)
Facts: claimant a trapeze artist who was injured. She had complete control over her act - what stunts she was going to do, etc.. When she was not doing her act, she was helping with the running of the circus.
Held: she was sufficiently integrated into the work of the employer to be considered an employee. - 13Who is an employee? mutuality of obligations test. Case.What is the worker required to do for the employer, and in return what is the employer required to do? O’Kelly v Trusthouse Forte (1984)
Facts: claimant worked as a wine waiter. Many hours, sometimes more than those who WERE labelled as employees - he was 'regular casual'.
Held: the employers had no obligation to offer him work, and if they did, he had no obligation to accept. Employment not found. - 14Who is an employee? Labelling test. Case.How are they labelled in the contract? Massey v Crown Life (1978)
Facts: claimant labelled as contractor.
Held: this is an issue, but not decisive. - 15Who is an employee? Multiple factors (economic reality) test. What is the difference between an employee and an independent contractor? Case.Control and pay the most important factors, followed by all the other elements.
Ready Mixed Concrete v Minister of Pensions [1968]
Facts: In this case the court examined whether a worker was an employee or an independent contractor. The worker drove a concrete mixer, painted in the company’s colours and the contract stated that he was responsible for running the lorry. The lorry could not be used for any other business but the contract stated that the drivers were independent contractors and were to share in the profit and risk of loss.
Held: the driver was an independent contractor. MacKenna LJ: "An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant." - 16What is the three limb test from Ready Mixed Concrete?A finding of employment will depend on:
1. Remuneration in exchange for personal service and mutuality of obligations. Personal service means the employee cannot substitute himself. Even if the contract states he can, if the reality is that he cannot, a relationship of employment will be found. Mutuality of obligations means there are set hours for each party, i.e. the opposite of ‘zero hours’ contracts.
2. Control. The more control the employer has, the more likely a relationship of employment will be found. Control over tools, systems, hours and locations.
3. All other contractual factors consistent with an employment relationship. - 17What if the contract stipulates that the worker is an independent contractor, when in reality, the relationship is much closer to one of employment? Case.Autoclenz v Belcher [2011]
Facts: 20 valets worked for Autoclenz. The valets' contract stipulated that they were independent contractors, and contained terms indicative of that relationship. In reality, the relationship between the valets and Autoclenz was much more akin to employment.
Held: what mattered was the real world relationship between the valets and Autoclenz. The court found that they were employees. - 18Give a case that expanded on the criteria for defining employment outlined in Ready Mixed. What were the 10 criteria?Warner Holidays v SoS for Social Services [1983]
1. level of control (see above);
2. provision of tools and equipment (See Ready Mixed, above);
3. salary;
4. tax/PAYE/national insurance;
5. sick pay;
6. bearing the risk of profit and loss (if remuneration is linked to the profitability of the purported employer, this can be evidence of self-employment);
7. integration within the organisation (see Whittaker v Minister of Pensions [1966] 3 All ER 531);
8. control over hours of work;
9. right/ability to do other work; and Argent v Minister of Social Security[1968] 1 WLR 1749. An actor who taught part-time in a school was held to be self-employed. He did not have to teach if he was offered an acting job.
10. how parties describe their relationship, i.e.labelling (see above). In Massey the court made it clear that the use of labels by either party as to the relationship was a factor to consider, but would not be conclusive. - 19Quashie v Stringfellows [2012]Facts: claimant a lapdancer. She was given holidays. There was no contractual stipulation that she would not work elsewhere, but it was accepted by the dancers that they wouldn't. The lapdancers were not paid by the employer but by the clients.
Held: The fact that they weren't paid directly by the employers not important, but on balance it was decided that they weren't. The contract stated that the dancers were self employed.Dis agreement between the courts on mutuality of obligations. Their pay varied on how well they did on a given night, which is more consistent with being an independant contractor than an employee. You have to look at all the factors. - 20Until 2012, claims for vicarious liability could only succeed where there was a traditional employment relationship. Give the case that changed all that.Relationship akin to employment
JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012]
Facts: the claimant sought damages for sexual abuse and rape carried out by a parish priest whilst she was living in a children’s home run by nuns.
Held: although the priest was not an employee of the trust, and received no direct remuneration, the courts found a 'relationship akin to employment'. Policy concerns were crucial and it was felt the defendant should be held responsible for the actions of the priest. It was clearly relevant that the defendant was insured. There was also a 'close connection' between the quasi-employment duties and the torts. - 21Give another case that provides 5 justifications for finding a relationship akin to employment in certain claims for vicarious liability.Various Claimants v Institute of the Brothers of the Christian Schools [2012] ('The Christian Brothers')
Facts: the brothers were supplied to teach in a residential school and abused pupils.The brothers were appointed verbally, the Institute had no right to dismiss the brothers, had little by way of control over them and did not pay the brothers formal wages. They were neither employees nor independent contractors. - 22Various Claimants v Institute of the Brothers of the Christian Schools [2012]Held: the brothers were in a relationship ‘akin to employment’ with the Institute. Lord Phillips stated that the policy underlying vicarious liability ‘is to ensure, so far as it is fair, just and reasonable, that liability for a tortious wrong is borne by a defendant with the means to compensate the victim’. Lord Phillips identified five key issues to consider:
(1) the employer is more likely to have the means to compensate the claimant than the tortfeasor;
(2) the tort will have been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf;
(3) the tortfeasor’s activity is likely to be part of the business activity of the employer;
(4) by allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed; and
(5) the tortfeasor will, to a greater or lesser degree, have been under the control of the employer.
There was also a 'close connection' between the quasi-employment duties and the torts.
These decisions leave uncertainty as to the boundaries of vicarious liability, and how important policy is. - 23Give a case in which the Christian Brothers was applied to a prisoner working in a prison kitchen.Cox v Ministry of Justice [2016]
Facts: Mrs Cox was the catering manager, injured when a prisoner who worked for her in the kitchens, negligently dropped a sack of rice onto her back as she was leaning forwards. It was accepted that the prisoner, Mr Inder, had been negligent. The prisoner was paid a small amount of money but in all other ways it was clear that he did not satisfy the requirements of an employment relationship.There was no contract and the purpose of his work was for rehabilitation purposes.
Held: JGE / Christian Brothers applied, liability found. Lord Reed focused on elements 2, 3 and 4 of the Christian Brothers judgment: (2) the tortfeasor was carrying out an activity on behalf of the defendant that was (3) integral to the defendants business (feeding prisoners) and by doing so the defendant had (4) created the risk of the tort being committed. It was therefore fair, just and reasonable to hold the defendant vicariously liable. - 24The 'akin to employment test' is applicable to relationship beyond an independent contractor relationship. Recently it has been applied to foster carers. Show how the principles from Christian Brothers were applied.NA (Armes) v Nottinghamshire County Council [2017]
Facts: foster carers who had abused children in their care.
Held: used the approach in Cox and found the Local Authority to be vicariously liable for the torts of of the foster carers. Although foster carers are clearly not employees in the traditional sense, the court provided the following justification:
1. The Local Authority had the means to provide compensation.
2. The torts were committed as a result of activity taken on behalf of the Local Authority.
3. Fostering was an integral part of the Local Authority’s business.
4. The Local Authority created the risk in placing the children in foster care.
5. A high degree of control is not necessary for vicarious liability to be imposed. - 25When an employee is hired out to another company, who is held vicariously liable for that worker's torts?Mersey Docks v Coggins & Griffith [1947]
Facts: A harbour authority contracted with a firm of stevedores. The contract involved the harbour authority lending out a crane and a craneman to work the crane. The contract stipulated that the worker would be ‘the servant of the hirers’. However, the harbour authority retained control over pay and also whether the worker could be dismissed. The craneman injured a third party through the negligent working of the crane and the question arose as to whether the harbour authority or the stevedores should be vicariously liable for thecraneman’s negligence.
Held: as a general rule, the employer (E) would remain vicariously liable and that it would be difficult for E to rebut this presumption. With a particular emphasis on the element of control, the harbour authority was found liable. - 26Can dual liability exist for the tort of a worker, where both a contractor and subcontractor are involved?Viasystems v Thermal Transfer [2006]
Facts: There were three defendants: a contractor, a subcontractor, and a further subcontractor. The workman negligently damaged a sprinkler system, flooding the factory, and the question arose who would be held vicariously liable.
Held: the court found dual liability between the two subcontractors, as the worker was equally under their control. Liability was apportioned equally. The judge pointed out that it would be rare to find facts supporting this approach.
The decision from Viasystems does not affect the general rule established in Mersey Docks. However, the Supreme Court affirmed the principle of dual liability in Christian Brothers (see above) in which the Institute and School were both held vicariously liable. - 27The Course of Employment: What is the Salmond test? Does it still apply?1. expressly or impliedly authorised by the employer, or
2. incidental to the carrying out of the employer’s proper duties, or
3. an unauthorised way of doing something authorised by the employer.
This test has now been replacted by the 'close connection to employment' test from Lister. - 28Although the emphasis of the courts seems to have changed now these cases are still of value and should be referred to where relevant (for example, they can help establish a ‘close connection’ between the wrongful act and employment). An over zealous train conductor. Case.Bayley v Manchester, Sheffield and Lincolnshire Railway (1873)
Facts: an over-zealous railway porter charged with ensuring that customers were on the correct train, injured the claimant whilst pulling him from the train.
Held: This was during the course of employment as the porter’s duties included taking action when a customer was on the train with an incorrect ticket (he was carrying out his duties in an unauthorised manner). - 29Involving a match.Century Insurance v Northern Ireland Road Transport Board [1942]
Facts: In this case the driver of a petrol tanker threw a lit match onto the floor whilesimultaneously smoking a cigarette and transferring the petrol to a storage tank.This resulted in an explosion. The question which arose for the court was whether the careless act was done in the course of employment.
Held: this act was in the course of employment, being an unauthorised way (smoking and dropping the match) of doing something authorised (filling the tank with petrol). This case extended the law to cover the possibility that acts done for the employee’s benefit and not for the employer’s benefit could also be deemed to be in the course of employment. - 30Involving a long lunch break.Harvey v RG O’Dell [1958]
Facts: a workman travelled five miles during working hours to get lunch.
Held: This was incidental to his work and therefore within the course of employment. Stopping to take a lunch break was a reasonably expected act by an employee. - 31Give another historic case that demonstrates what might be considered 'in the course of carrying out the employer's business' even if the practice is expressly prohibited.Rose v Plenty [1976]
Facts: The defendant, Mr Plenty, was a milkman. There were notices up at his depot expressly forbidding the milkmen to take children on their vehicles while making deliveries. Nevertheless, the practice continued. Mr Plenty was deemed to have been aware of the notices, but allowed a 13-year old boy, Leslie Rose, to assist him in his deliveries. On 21 June 1970, after delivering to a house, the boy jumped on to the milk float and then sat on it with one foot dangling down ready to jump off quickly. Mr Plenty carelessly drove too close to the kerb as herounded a corner, and the wheel caught the boy’s leg. The boy sustained a broken foot. - 32Rose v Plenty contHeld, Lord Denning: "In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employers' business, it is usually done in the course of his employment, even though it is a prohibited act. But if it is done for some purpose other than his masters' business, as, for instance, giving a lift to a hitchhiker, such an act, if prohibited, may not be within the course of his employment."
- 33Give the definitive authority for when a journey might or might not be considered to be in the course of employment.Smith v Stages [1989]
Facts: This case involved two workers who had been sent to work in Pembroke and were paid for travelling time, although the method of transport had not been specified. There was an accident on the return journey which involved negligence on the part of the worker. The issue arose as to whether the accident occurred during the course of employment.
Held: The House of Lords held that the employees were in the course of employment. The judge gave a number of examples of when travelling might be considered in the course of employment. If the journey was mandated and provided by the employer, or carried out during employed time, or in occured while carrying out duties, it might be considered in the course of employment. Travelling to a fixed work place of work, or outside working hours might not. - 34Outside the Course of Employment: driving a bus.Beard v London General Omnibus [1900]
Fact: a bus conductor, with delusions of grandeur, attempted to drive a bus and in doing so managed to run over the claimant.
Held: The bus conductor was not authorised to drive the bus, driving the bus was not incidental to his duties and he was not carrying out an authorised act in an unauthorised manner. - 35Outside the Course of Employment: ticket machine.Keppel Bus Co. v Saab Bin Ahmad [1974]
Facts: a bus conductor, somewhat lacking in customer service skills, hit a passenger with his ticket machine.
Held: The argument had not been in relation to ticket fares, but was to do with the conductor’s dislike of the passenger. - 36Outside the Course of Employment: sexual favours.Makanjuola v Commissioner of Police for the Metropolis (1992)
Facts: a Nigerian woman claimed against the Police Commissioner for intimidation and sexual assault. She had consented to sex in return for a police officer refraining from reporting her alien status to the immigration authorities.
Held: Although s 48 of the Police Act 1964 stated that the Commissioner of Police would be vicariously liable for the actions of his police officers, this would only apply if such acts were in the course of the police officer’s employment. The police officer’s actions were notin the course of his employment. - 37Outside the Course of Employment: bouncer.Daniels v Whetstone [1962]
Facts: The case concerned a ‘bouncer’ for a dance hall. He assaulted a customer once while inside the dance hall, and then a further time when the customer had already left the dance hall and presented no further threat of any affray. The question for the court to decide was whether the assaults were in the course of employment.
Held: the first assault was inside the course of employment, but the second was outside. The bouncer was 'engaging in an act of private vengence'. - 38Outside the Course of Employment: detour.Storey v Ashton (1869)
Facts: a driver returning from delivering wine as instructed by his employers was persuaded by his colleague to set off on a deviation from the route back to his employer’s premises.
Held: The claimant, who was injured by the driver’s negligent driving, was denied recompense from the employer, on the grounds that the employee was not acting in the course of employment.
Much depends upon the extent of the deviation, whether travelling was in working time and the actual purpose of the journey. In Storey the deviation was not within the course of employment as it was a new and independent journey, entirely for their own purpose (to visit relatives). - 39Outside the Course of Employment: hitch hiker.Twine v Bean Express [1946]
Facts: despite express instructions not to do so, the lorry driver (an employee) picked up a hitch hiker, who was subsequently injured as a result of the driver’s negligent driving.
Held: the hitch hiker was a trespasser and the employee was not acting within the scope of employment as he was doing something expressly prohibited. - 40Outside the course of Employment: giving a lift to employees of other companies.Conway v George Wimpey [1951]
Facts: drivers were expressly prohibited from giving lifts to employees of other companies. The claimant was injured as a result of negligent driving by the employer’s driver.
Held: The defendant evaded vicarious liability as the driver was doing an expressly forbidden act.
Contrast Conway and Twine with Rose v Plenty. A consideration of policy is probably helpful in squaring the decisions made. Denning distinguished Rose from Twine and Conway on the basis that in Rose the prohibited act was being done for the purpose of the employer’s business (the boy was helping the milkman to deliver milk). In Conway and Twine, giving lifts to passengers was not for the purpose of the master’s employment. - 41Give the authority for the close connection test.Lister v Hesley Hall [2002]
Facts: The claimants in this case had been pupils at a boarding house which was attached to a school. They had been sexually abused by the warden who was an employee of the defendants. The question for the court to decide was whether the warden had been acting in the course of employment when carrying out the sexual abuse, which was completely unknown to the defendants.
Held: Salmond's test was rejected in favour of a 'close connection' test. Lord Steyn: "The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House." The tort was committed on the employer’s premises during working hours.
The close connection test was subsequently applied in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust 2012 and in Various Claimants v Institute of the Brothers of the Christian Schools 2012 - 42Inside the Course of Employment: bouncer.Mattis v Pollock (t/a Flamingo’s Nightclub) [2004]
Facts: A bouncer was chased out of the defendant’s nightclub where he was an employee. The bouncer ran to his home and returned with a knife. A short distance away from the nightclub he came across a group of people, including the claimant, some of whom had been involved in the earlier incident. The bouncer grabbed the claimant and stabbed him in the back, causing him severe injuries.
Held: The Court of Appeal held that since the stabbing represented the culmination of the incident that had started within the club, the nightclub was liable for the bouncer’s assault on the claimant. Approaching the matter broadly, at the moment when the claimant was stabbed, the defendant’s responsibility for the bouncer’s actions was not extinguished. Note that the court appear to have been influenced by the fact that Flamingo’s advocated violence by their bouncers which was not responsible. This was seen as a just result for the claimant who had been left paralysed. - 43Inside the Course of Employment: rugby.Gravil v Carroll [2008]
Facts: the claimant was injured by a punch from the first defendant during a rugby match. The claimant sought damages vicariously from the defendant’s rugby club, who employed the defendant.
Held: Even though the player’s contract required him not to engage in such behaviour, there was a close connection between the punch and the first defendant’s employment to play rugby. When he punched the claimant there was still a melee of the kind which frequently occurred during rugby matches, despite the fact the whistle had gone. The melee was part of the game and the kind of thing rugby clubs would expect to occur. The throwing of punches was not uncommon in situations like this and could be regarded as an ordinary (though undesirable) incident of a rugby match. An employer ought to be liable for a tort which could be regarded as a reasonably incidental risk to the type of business being carried on. - 44Close connection: Morrisons.Mohamud v Morrisons [2016]
Facts: The defendant, Morrisons, employed Mr Khan, who worked in a kiosk at one of their petrol stations. Mr Mohamud approached Mr Khan at the kiosk and asked if he could print out some images from his USB stick. Mr Khan responded abusively and, after Mr Mohamud objected to the way he was spoken to, Mr Khan became racially and verbally abusive. Mr Mohamud returned to his car, followed by Mr Khan who opened the passenger door to Mr Mohamud’s car, told him in a threatening manner never to come back and punched him in the head. Mr Mohamud got out of his car to close the passenger door at which point Mr Khan launched a fiercely violent attack on him.
Held: The court saw Mr Khan's behaviour as part of an unbroken sequence of events, connected to his job in customer service. Lord Toulson claimed the closeness of connection test is actually a two-fold test:
1. What was the nature of the employees job?
2. Was there sufficient connection between the position in which he was employed and his wrongful conduct to make it just for the employer to be held liable? - 45Not close connection: crossing the road.Fletcher v Chancery Lane Supplies [2016]
Facts: The Claimant, a police officer, was riding a bicycle in a cycle lane when he collided with the defendant’s employee. The employee was crossing the road on foot at the time. The defendant had offices on opposite sides of the road that the employee was crossing. The employee's shift finished at 12pm and the accident occurred at 12.45.
Held: it was not clear that the employee was in the course of carrying out his duties, furthermore the court used the 'close connection' test and found that there was not a close connection between the activity of the employee at the time of his accident and his duties. He may have been going home. - 46What is the difference between a contract of service, and a contract for services?The former is an employment contract, and the latter a contract with an independent contractor.
- 47As a general rule is an employer liable for the torts of an independent contractor?Generally, no. This is known as the ‘Personal Duty Theory’. Independent contractors are responsible for their own actions and should take appropriate precautions, including obtaining professional indemnity insurance (Rowe v Herman[1997]) although the courts have not always been consistent in their approach to this issue.
Information
- Description
- Tort Law Flashcards on Tort - Vicarious Liability, created by Sam Grimley on 04/07/2019.
- Created by
- Sam Grimley
- Views
- 3
- Rating