Vicarious liability

This is where one person is liable for a tort committed by someone else. There is usually a relationship between the tort feasor and the person who is made vicariously liable. The principle of this tort is that if you have a degree of authority over anothers actions, then you must take some responsibility for his mistakes as well since you benefit from his actions. Vicarious liability is a practical tool that compensates the innocent party by placing the liability with a person who is more likely to be insured than the tort feasor. This principle is usually always applied to the employee employer relationship. The rationale for vicarious liability Employers are in control of the conduct of their employees, and therefore should be responsible for their acts Since employers benefit from employees work, they should be liable for any damage the employee may cause in its performance Resources employer will be in the best financial position to meet a claim Preventing negligent recruitment Promotion of care

In order to decide whether vicarious liability applies in a particular situation, the courts address two questions: 1. Was the person who committed the tort an employee of the defendant? 2. Was the tort committed in the course of that persons employment?

Who is an employee? To determine who is an employee the courts apply the degree of control test, as it is necessary to distinguish employees who work for the firm in comparison to independent contractors who complete certain jobs for the firm. The degree of control test is where the control exercised over that person by the employer is considered. This test has become quite outdated as workers become more specialized, therefore as established in the Ready Mixed Concrete Ltd. V Minister of Pensions case the foll. Points are considered when debating whether the person in question is an employee; A person agrees to provide his work and skills to the employer in return for payment He agrees to be subject to the employers control Other terms of the contract are consistent with the existence of a contract or service Who owns the tools and equipment used? Whether he is on business on his own account? {Hall v Lorrimer the def. who was a television technician was considered an employee as he was not on business on his own account}

It is important to differentiate between employees and independent contractors because independent contractors are not covered under vicarious liability where by an employer would be liable only for the actions of an employee. Independent contractors are people who own their own equipment, employ or hire workers, take financial risks, have management and investment responsibilities, charge varying amounts, have quite a few clients and send out invoices. Ferguson v Dawson here a building labourer was considered an employee based on the type of work done and degree of control exercised he was and therefore protected by certain safety legislation. Carmichael v National Power Plant plc. here the claimants who worked as tour guides were held to be independent contractors and not employees as they worked on an as required basis with no mutual obligation between the employee and the employer.

Agency workers are not considered as employees as established in the case of Montgomery v Johnson Underwood Ltd. here Mrs. Montgomery was held to be self-employed and therefore couldnt sue Orenstein and Kopple where she was employed via an agency for unfair dismissal. Where sometimes an employer lends the services of his employee to another firm the conflict as to who is vicariously liable can arise, as outlined in the cases below. Mersey Docks and Harbour Board v Coggins and Griffiths Ltd. this, is where a worker is negligently injured

Was the tort committed in the course of that persons employment?

An employer will only be responsible for torts committed by their employees if those torts are committed in the course of employment, rather than, as the courts have put it, when the employee is on a frolic of his own. The test for whether an employee is acting in the course of his employment has been laid out by the Salmond on torts book, where it is stated that a wrongful act would be classified as done in the course of employment if it is either 1. A wrongful act authorised by the employer 2. A wrongful and unauthorised mode of doing some act authorised by the employer This means that an employer can be liable not only where they have permitted the employee to do the wrongful act but also where the wrongful act committed by the employee is so closely connected to the task that the employee has been asked to do that it can merely be considered as part of doing that task even if it is not the way the employer had wanted or authorised. Century Insurance v Northern Ireland Road Transport The employer was held liable here for the action of the employee which was lighting a cigarette and dropping the lighted match to the ground which caused an explosion damaging the claimants property. The employer was held vicariously liable as the employee was still doing his job though negligently done.

 Bayler v Manchester Railway Co. Here the employer was held vicariously liable for the porters actions as the porter was merely trying to do what he was authorised to do, i.e. helping the passenger to get to his destination, though he was doing a bad job of it. If an employee is engaged on a private matter personal to him then the employer would not be held liable for injuries caused by the employee during this time. Britt v Galmoye and Nevill Mattis v Pollock Express prohibition An employer who expressly prohibits an act will not be liable if an employee commits that act. However the employer may be liable if prohibition can be regarded as applying to the way in which the job is done, rather than the scope of the job itself. Limpus v London General Omnibus Co The employer was held vicariously liable here for the employees action of racing the bus which caused the collision with the claimants bus and the inevitable damage as a result. He was held to be acting in the course of his employment, even though the way he was doing it was improper and had been prohibited. Twine v Bean Express Ltd the employer was not held vicariously liable, as the employee had been expressly prohibited from giving lifts to anyone not within a group of authorised passengers. Rose v Plenty Here the employer was held vicariously liable as though the employer had prohibited the milkman from letting children help with the deliveries of milk, it further his business, thus he was liable for the injuries sustained by the boy.

Frolics of their own An employer would not be held responsible for acts done by employees which have nothing to do with their employment; judges often refer to this as employees going off on frolic of their own. Heasmens v Clarity Cleaning Co. here the employer was not held liable as the employee was not acting in the course of employment when taking those long distance calls in the cleaning process Hilton v Thomas Burton Ltd. here the employer was not held liable as the employees were on a frolic of their own when they went for tea and one employee was killed in the accident Whatman v Pearson the employer in this case was held liable as he was acting in the course of employment though he left the horse unguarded and it caused damage. Storey v Ashton the employer was not held liable here as the employee was considered to have been making a new journey after working hours that was not in the scope of his job. Employers defences 1. Consent of the victim / voluntary assumption of the risk 2. Contributory negligence Note: The Civil Liability (Contribution) Act 1978 allows an employer who has been found liable to get a contribution from the employee who caused the accident (however this is rarely used as the employers carry insurance) Lister v Romford Ice and Cold Storage (in this case the employers could successfully sue the employees in return as the lorry drivers negligent driving was a breach of an implied term in his employment contract)