Vicarious Liability

• A form of secondary liability under which employer may be held liable for the acts of the employee.

  • The employer is strictly liable to pay the claimant.

• Justification:

  • Lord Phillips in Catholic Child Welfare: so long as it is fair, just and reasonable, liability for a tortuous wrong is born by someone with the means to pay compensation. (Deep Pockets Justification)

    • Can still sue the original tortfeasor but under Employers’ Liability (Compulsory Insurance) Act 1969 all employers have to obtain compulsory insurance for their employees.

  • Rex LJ in Viasystems v Thermal Transfer: basis that those who gain profit from the actions of their employees should also bear the consequences of the negligence of their employees (benefit/burden theory)

  • Also:

    • Employer may be careless in selecting negligent employees. Should suffer the consequences.

    • Employer exercises control and supervision of its employees.

    • Encourages employees to provide better training etc.

• Requirements:

  • 1) A tort (excluding nuisance) has been committed by X

  • 2) X was D’s employee (or akin to an employee)

  • 3) The tort was committed in the course of employment (or a relationship akin to employment)

• Defining an Employee:

  • Ready Mixed Concrete v Minister of Pensions [1968] – driver paid for lorry, but had company uniform, colours and a salary. No set hours, instructions, routes, breaks etc. Held he was an independent contractor. Established ‘economic reality’ test. Must take account of:

    • Remuneration

    • Control

      • Viasystems v Thermal Transfer [2005] – can even have two masters if they both have control over the worker.

        • Dual liability might occur where an employee is lent or transferred to work for another and both employers are entitled, and obliged, to control the employee’s actions so as to prevent the negligent act

      • Hawley v Luminar Leisure [2006] – Nightclub hired bouncer who attacked claimant through a third organisation. Held employee of nightclub not third party as:

        • Nightclub had control (third party did not). Also dressed in uniform of nightclub, and had worked for so long as to become an integral part of the nightclub.

      • Biffa Waste v Maschinenfabrik – D supervised a sub-contractor in building a plant for C. Sub-contractor caused a fire.

        • Mere supervision is not control

    • Other Contractual Provisions consistent with employment relationship

  • Warner Holidays v Secretary of State for Social Services [1983] – additional considerations were listed by McNiel J:

    • Tax/PAYE/insurance

    • Sick pay

    • Risk of profit/loss

    • Integration in organisation

      • Stevenson v McDonald [1952] – Copyright case. An engineer wrote a book that used knowledge that he acquired whilst he was working for a firm in different capacities.

        • Distinguished between a “contract of service” and “contract for services” provided to the firm.

        • Someone is an employee if they are an integral part of the business of the defendant (Denning)

    • Right/ability to do other work

    • How the parties describe the relationship

      • Ferguson v Dawson (1976) – Claimant fell from roof working for claimant. Despite both parties calling it ‘self-employed’ held he was in fact employee as they had control to move him and provided tools.

• Defining ‘Akin to an Employee’

  • Recent development of the law.

  • JGE v English Province of Our Lady of Charity [2012] – sex abuse by Catholic priest. Priest is not paid by church but by donations. Yet degree of control exercised (code of conduct etc) meant church is liable.

  • Various Claimants v Catholic Child Welfare Society [2012] – Trained ‘brothers’ as teachers before sending them around Europe. Brother donated money back to institute. High degree of control. Close connection between the role they had and the sexual abuse committed.

    • Held the ‘close connection’ was sufficient to imply a relationship akin to employment.

  • Cox v Ministry of Justice [2016] – prisoner working in canteen injured a caterer. Held Prison service was liable, tortfeasor:

    • Carried out activities as “an integral part of the defendant’s operation and for its benefit”

    • The defendant “must, by assigning those activities to the tortfeasor, have created the risk of committing the tort.”

  • Armes v Nottinghampshire CC [2017] – found LA vicariously liable for the torts of foster carers who had abused children in their case. Court outlined five relavent factors:

    • 1) The LA had the means...

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