Vicarious Liability - CASE LIST

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Vicarious Liability - Making a third party liable for someone else's wrongdoing - depends on their legal responsibility over your actions

Imperial Chemical Industries v Shatwell - The master, presumably for his own benefit, employed the servant, and is presumably better able to make good any damage and is answerable for all the torts committed by his servant within the scope of his employment.

Salmond - a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment - (1) a wrongful act authorised by the master or (2) a wrongful and unauthorised mode of doing some act authorised by the master. A master is liable for unauthorised acts as long as they are so connected with authorised acts that they could be considered improper modes of doing authorised acts.

Moynihan v Moynihan - Irish case - grandmother liable in vicarious liability for daughter leaving kettle within reaching distance of niece who was badly burned - the relationship in the circumstances was akin to master and servant - she asked her to make tea - she was therefore liable for the harm as this was akin to an employment relationship.

Relationship of Control:

Control, method of pay, integration into the business, dealings in tax affairs, entitlements to holidays and sick pay, use of own equipment

Morrissey v HSE [2020] - overall test must be one which considers the nature of the relationship, including the question of control, is such that it is similar in substance to the type of relationship which has traditionally been regarded as giving rise to vicarious liability. --> "The level of engagement by one party in the way the other is to carry out a task entrusted to it."

(1) Legal relationship (2) degree of control (3) relationship akin to employment?

Phelan v Coillte Teoranta - is there a relationship akin to employment? worked full time, was told where to go and what to do, was paid hourly and for mileage and expenses, yet he used his own tools and paid his own taxes. This was a relationship of master and servant.

Moynihan v Moynihan - told daughter to prepare tea - was liable in vicarious liability when grand-niece was burned by kettle - was a relationship akin to employment - the deciding factor should never be whether the person is being paid.

Cox v Ministry for Employment - dropped bag of rice on victim while working for the prison - 5 factors are to be considered - (1) employer is more than likely to have the means to compensate the victim when compared to the employee - (2) tort must have been committed as result of activity being done by employee for employer - (3) employee's activity is likely to be part of the employer's business - (4) the employer created the risk by employing the employee to carry on the activity (5) employee will have been under control of employer to some degree.

Armes v Nottinghamshire - plaintiff was fostered by the defendant to abusive parents who abused her - the court of appeal upheld earlier decision and stated that the defendant was not liable as they were not in charge of the most important decisions in the child's life - yet this was overturned in the Supreme Court on application of the 5 Cox principles. Defendant was vicariously liable.

Scope of Control:

Must be a close connection between the wrongful conduct and the nature of the employment so that it is fair, just and reasonable to impose liable.

were the employee's actions within the scope of the employer's control?

Farry v Great Northern Railway - 2 considerations - (1) the act done (2) the purpose for which the act is done --> if the act is outside the scope of the servant's employment, the master is not responsible - but if the act is within the normal scope of the servant's employment the arises the question whether the act complained of was done for the employer...

Smith v Stages - employees working and had travel expenses paid on top of wages - left work early and caused an accident - they were still on the clock and paid expenses and wages so the employer was vicariously liable. (anything reasonably incidental to employment)

Boyle v Ferguson - driving around with women in car - he was promoting the car to sell it - it was 7pm but he worked on flexible hours - his petrol was paid for by employer - held that employer was vicariously liable as he was acting within his employment at the time of the accident

Lawlor v O'Connor - abducted plaintiff and assaulted her - during course of his working day - he left company premises to abduct her - this was held to be outside the scope of his employment.

Frolics - not within scope of employment.

Daniels v Whetstone Entertainment - bouncer threw out a club attendant - then followed down road to beat him up - employer was vicariously liable for the throwing out as it was within the scope of employment - but the beating up was a solo-frolic which did not lead to vicarious liability.

Storey v Ashton - diverted from work route to visit his brother - was in an accident - employer was not vicariously liable as it was a solo-frolic.

Assault:

Graham v Commercial Bodyworks - prank of setting a person on fire did not result in vicarious liability for employer -

N v Chief Constable - defendant not liable for sexual assault of plaintiff by one of his employees who was a policeman who was off the clock at the time -

Muhamad v Morrisons - unbroken chain of events from acting in his role as a supermarket attendant and assaulting a customer and telling him never to return - was vicarious liability for employer.

Sexual Abuse:

Health Board v BC - hard to envisage a situation where sexual assault was within scope of employment - this would, of course, lead to injustice

Canada - Bazley v Curry - vicarious liability - depends on the connection between the creation or enhancement of risk and the wrongs that accrue therefrom - requires a close connection between (1) wrongful conduct and (2) nature of employment.

Delahunty v South Eastern Health Board - sexually assaulted by house master of orphanage while visiting a friend - no vicarious liability as she was a visitor but would have been if she was a tenant of the orphanage.

(UK) Lister v Hesley Hall - teacher abused a student - connection existed between the trust placed in a teacher and the sexual abuse - vicarious liability found.

(Ireland) O'Keeffe v Hickey - close connection test applied where student was abused by teacher - minister of education could not be found vicariously liable to help plaintiff recover damages as defendant was employed by the catholic church - plaintiff struggled to recover damages owed.

Reilly v Deveraux - sexual harassment of officer by superior in the army - no relationship of intimacy implicit in this role - no close connection - to find otherwise would leave open-ended liability for the defendant in almost all other circumstances.

Elmontem v Nethercross Ltd - Head chef attacked financial adviser - no close connection between being a chef and assaulting his co-worker - no vicarious liability

Close connection is the test in Ireland now.