Vicarious Liability Notes

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Table of Contents
TABLE OF CONTENTS
EMPLOYERS' PRIMARY LIABILITY................................................................................................................................................... 2
- McDermid v Nash Dredging [1987] 2 All ER 878.................................................................................................................................2

VICARIOUS LIABILITY......................................................................................................................................................................2
- Stevens, Torts and Rights (2007) 257-274.........................................................................................................................................3
- Kidner, Vicarious Liability: For Whom Should the Employer be Liable?.............................................................................................3

Employees and borrowed employees...........................................................................................................................................4
- JGE v Portsmouth Roman Catholic Diocesan Trust.............................................................................................................................4
- Mersey Docks v Coggins..................................................................................................................................................................... 5
- *Cassidy v Minister of Health [1951] 2 QB 343..................................................................................................................................5
- Ready Mixed Concrete v Minister of Pension.....................................................................................................................................6
- *Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510.............................................6
- Biffa Waste Services Ltd v Maschinenfabrik Abrik Ernst Hese GmbH [2008] EWCA Civ 1257, [2009] QB 725, [41]-[61].....................7
- Hawley v Luminar............................................................................................................................................................................... 7
- *Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1.........................................................................7
- NOTE Lord Hope, 'Tailoring the law on vicarious liability' (2013) 129 LQR 514..................................................................................8
- *Cox v Ministry of Justice [2016] UKSC 10, [2016] 2 WLR 806............................................................................................................9

Independent contractors and agents...........................................................................................................................................9
- McKendrick, "Vicarious Liability and Independent Contractors: A Re-examination".........................................................................9
- Honeywell v Larkin........................................................................................................................................................................... 10
- Salsbury v Woodland [1970] 1 QB 324.............................................................................................................................................10
- *Woodland v Essex County Council [2013] UKSC 66, [2014] AC 537................................................................................................10
Course of employment............................................................................................................................................................................. 11
- *Rose v Plenty [1976] 1 WLR 141.....................................................................................................................................................12
- *Lister v Hesley Hall Ltd [2002] 1 AC 215.........................................................................................................................................12
- Maga v Birmingham Roman Catholic Church...................................................................................................................................13
- NOTE Hoyano (Tort Law Review).....................................................................................................................................................13
- *Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11, [2016] 2 WLR 821.........................................................................13
- *Weddal v Barchester (Wallbank v Royal Bank)...............................................................................................................................14
- Century Insurance v Northern Ireland Road Transport.....................................................................................................................14
- Launchbury v Morgans.....................................................................................................................................................................14 EMPLOYERS' PRIMARY LIABILITY
- McDermid v Nash Dredging [1987] 2 All ER 878
Vicarious liability is justified on policy arguments and object is to ensure that liability is borne by a D with the means to compensate V (so far as it is fair, just and reasonable to do so)
Facts: C (inexperienced 18yo) employed by D as deckhand and sent to work on a tug and suffered serious injury caused by negligence of master of the ship (T).
Held: D held not to be VL because T is not D's EE, but nevertheless D was liable because he owed a non-delegable duty to C (before, ER owed NDD to provide competent staff, proper plant and equipment, safe place and safe system of work to
EEs, but this case extended this to operation (as distinct from provision) of a safe system of work).
Judgments:
Lord Hailsham:
- In this case the duty was ND in the sense that it could be delegated but D
would still be liable if it is not performed (NB Denning in Cassidy - was that case one of an NDD?)
- In this case D had delegated their NDD to the master of the ship and it had been inadequately performed.
NB their lordships thought the extension from provision to operation was self-evident but this isn't so as provision was under the control of ER while operation depends on isolated acts of negligence by an IC over which ER has no control. Thus the effect is as if VL had been imposed on D (per McKendrick)
VICARIOUS LIABILITY
I. General Principles
- A secondary liability imposed on one person for the tort of another (this party is usually better able to satisfy the judgment than tortfeasor)
- Most significant instance: tortfeasor is an employee of vicariously liable party
(or relationships 'akin to employment', but not for independent contractors)
- In an employment case court asks whether there is a sufficiently close connection between tort and relationship
- Non-delegable duty: tasks creating risks can be delegated, but duties in relation to these cannot (different from VL because here it someone else's breach for your duty - it is primary liability)
II. Requirements

1. Sufficient relationship

2. Sufficient connection with tort
III. Nature of Vicarious Liability
Two alternate views:

1. Tort is of the vicariously liable party 2. Tort is of the tortfeasor but liability is of the VLP (greater support of recent cases - Woodland)
IV. Justifications for VL
- Justice argument: the person who benefits from the activity that created the risk, or who contributed to creating the risk, should take the risk
- Economic argument: Costs of an enterprise ought to be internalized to stimulate most efficient level of risk-taking
- Incentive argument: employer has opportunity to select employees/supervise so should provide incentive (doesn't explain liability where accident is unavoidable)
- Deep pockets argument: need to compensate victims
- Stevens, Torts and Rights (2007) 257-274
I. Policy
- All arguments suffer from same flaw: fail to explain the "vicarious" part of VL
and are arguments for strict liability in general and none justifies confining liability to torts committed by EEs rather than all losses caused by EEs
- Often said that justifications are accumulated, but if none of them explain
"vicarious", then together they can't either
II. What is Attributed?
- Master's tort theory is usually dismissed as misleading. But it is possible to defend it -
o We are responsible for actions that we don't intend (carelessly knocking over a vase).
o If attribution of A's actions to B is fictitious, then so are authorization,
ratification, procurement and conspiracy

Attribution is common outside the law: in sports games one person's goal is attributed to the nation's
- However: attribution can lead to result that EE who carelessly injures himself can sue ER, or an agent who defames himself can sue D who gave authority to publish

Thus attribution fails - D simply takes responsibility
- BUT attribution explains much of modern law of VL:
o Presents an explanation as to why VL is vicarious

Same rules employed for contributory fault as for ER's liability

Corporation's "acts" are really the acts of the human agents; corporate liability thus necessitates attribution

Attribution may result in D committing a tort where EE doesn't (eg.
husband EE injures wife - partners not allowed to sue)
o Where duty is personal to EE, attribution doesn't lead to ER tort

Non-compensatory remedies illustrate attribution of act

If ER who is VL seeks to bring contribution claim, he is treated as the wrongdoer not an innocent party held liable for another's
- However: attribution is less forceful in cases of NDD
III. ConclusionVL largely based on policy led to distortion of the law resulting in uncertainty and confusion.

- Kidner, Vicarious Liability: For Whom Should the Employer be Liable? I. Introduction
- Change in nature of employment led to rise in legalism in employment law that produced technicalities concentrating on contract, so that our understanding of
"employment" is skewed towards this and is unsuitable for VL
- Possible solution: Increase range of activities for which ER can be liable for IC
(this may be useful but will be limited to cases where there is something special about the IC's activity, while what is needed is a principle that covers novel relationships between ER and EE)
- Thus definition of EE for the purpose of VL should be flexible enough to reflect the doctrine's objectives
II. Can "Employee" Mean Different Things for Purposes?
- A word should reflect the purpose for which it is to be used: question of who should be subject to income tax bears little relation to who should be VL for those working for them
- BUT there is benefit in using a known and recognized fundamental legal concept (Atiyah): different definitions for different purposes can "infect" each other inappropriately
- Also could become circular
III. Function of VL
- Distribution of loss doesn't help except suggesting that a wider test should be used
- Benefit/burden argument: helps decide which risks should be attributable to the ER
- Look at tort from POV of ER and ask whether he could have done anything to prevent it
IV. "Employee" for the Purpose of VL
- Should not be restricted by recent approaches in employment law
EMPLOYEES AND BORROWED EMPLOYEES
I. Requirements

1. Sufficient relationship a. An employer is liable for an employee's tort b. Traditionally a contract of employment was necessary but not relationships that 'fall short of employment' may apply
II. Employer v Independent Contractor
- A contract of service makes T D's employee
- A contract for services makes T is an independent contractor
- "Control test" rejected - now multiple factors relevant:
o Scope of duty (EE employed for particular period of time; IC hired to perform a job and can take whatever time he likes)
o Payment (EEs paid wages/salary while IC paid fees for job)
o Personal nature of duty (IC can subcontract but EE must do self)
o Source of income (ER is EE's sole source; IC often has multiple)
o Control

Equipment (EEs use ER's equipment but IC brings his own)
III. Dual Employment
- If T is an employee of D1 who sends him to work for D2:

Initial presumption: T is D1's employee (Mersey)
o But D2's if T so much under his control that he had power and responsibility to stop T (Hawley v Luminar)
o But if both D1 and D2 in control and responsibility to prevent tort, then both are ER (Viasystems)
IV. Other Situations Giving Rise to VL
- Police: Chief police officer of an area in which T works is VL
- Agency: D appoints T as agent and T commits a tort while acting within the scope of his authority - D is VL
- Car owners: D requests T to perform a task driving D's car and T commits a tort (eg. injuring someone) - D is VL (by analogy to agency)
- Partnership: S10 Partnership Act 1890: partners will be VL for actions of one partner "in the ordinary course of the business of the firm"
- Joint venture: D will be VL for T's tort committed in the course of furthering a joint venture between D and T
- JGE v Portsmouth Roman Catholic Diocesan Trust
Facts: C alleged sexual abuse by T, a priest, when living in a children's home operated by an order of nuns (D). D denied liability on ground that T wasn't an employee.
Held: Although T wasn't strictly speaking an employee the relationship was close enough in character to be "akin to that of an employee"
Judgment:
Ward LJ on the policy considerations underpinning VL
- Clash of two principles: there ought to be an effective remedy for V for another's wrongful act; D should not be held liable unless at fault. Triumph of former over latter can be explained on policy grounds:
o Control - however, per Atiyah it shouldn't be treated as sufficient for always imposing liability or a necessary reason for imposing it

Compensation (deep pockets) - ensures that V has solvent D but doesn't explain why ER not liable for IC
o Deterrence - larger economic units are in best position to reduce accidents through efficient organization and discipline of staff. However,
this implies that ER can avoid VL by showing no fault (eg. in Germany)
but this isn't true (eg sexual abuse cases)
o Loss-spreading - burden will be spread among ER's clients and insurers
(but ER of domestic servants?)
o Enterprise liability - liability for torts "characteristic of its activities" (but charitable organizations?)
- No single rationale provides complete justification - VL is justified by a combination of policy considerations
Ward LJ on whether there is a relationship akin to employment
- Control test: factual and not legal right to control is critical - depends on EE's integration into ER's organization and EE's accountability to ER
- Organization test: how far the activity is a central part of ER's business from
POV of its objectives
- Integration test: how far activity is integrated into organizational structure of the enterprise

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