The Liability of Employers: Vicarious Liability 10.0

Various Claimants v Institute of the Brothers of the Christian Schools [2012]

('the Christian Brothers' case) the Institute, an unincorporated association of lay brothers of the Catholic Church, was held vicariously liable for the acts of brothers supplied to teach in a residential school who 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. However, the Supreme Court held that the brothers were in a relationship 'akin to employment' with the Institute. The vows operated in much the same way as a contract, the Institute directed them as to what work to do within the school and this work was done in furtherance of the Institute's mission. 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. These decisions leave uncertainty as to the boundaries of vicarious liability, and they also demonstrate, once again, the extent to which policy pervades tort law.

Liability for Independent Contractors: General Rule

A person who engages an independent contractor is not generally liable for torts committed by them in the course of their work. This is known as the 'Personal Duty Theory'. As such they are responsible for their own actions and should take appropriate precautions, including obtaining professional indemnity insurance, (Rowe v Herman [1997] 1 WLR 1390) although the courts have not always been consistent in their approach to this issue. The main reason for this is that the employer has less control over independent contractors than over employees.

Was the Tort Committed in the Course of Employment? : General

An employer is not responsible for the wrongful acts of his employee unless such acts are done in the course of employment. Historically courts and academic texts focused on Salmond's definition of the phrase 'course of employment'. Following Salmond's's interpretation, an employee is in the course of employment if the wrongful act is: expressly or impliedly authorised by the employer; or, incidental to the carrying out of the employee's proper duties; or, an unauthorised way of doing something authorised by the employer. Since 2016 it seems the emphasis has now changed. An employer will be held vicariously liable for the acts of their employees if there is a 'closeness of connection' between the employee's wrongful act and his employment. The courts focus on the time the wrongful act was committed and all other relevant circumstances.

Viasystems Ltd v Thermal Transfer Ltd and Others [2005]

Court of Appeal found that, in certain circumstances, given there is no binding authority against the concept of dual vicarious liability, it is possible for two parties to be vicariously liable for the actions of the same, negligent employee. 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 i.e. the employers have an equal measure of control over the tortfeasor. In practice, dual liability such as arose in this case is rare, and in any event 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 Various Claimants (see above) in which the Institute and School were both held vicariously liable.

McFarlane v Glasgow City Council [2001]

However, if the worker's written contract includes a substitution clause but the right to send a substitute is fettered so that the employer controls who is actually selected as the substitute this may not negate employment status.

Express and Echo Publications v Tanton [1999]

If a worker is entitled to send a substitute to do the work in his place this cannot be an employment relationship

Was the Tort Committed in the Course of Employment? Pre 2016 Case Law - Outside the Course of Employment

If the employee's act was unauthorised or expressly prohibited he/she was traditionally deemed to have been on a 'frolic of his own' (Joel v Morrison (1834) 6 C & P 501) and the employer would not be vicariously liable. In the following cases employers escaped the imposition of vicarious liability for the actions of their employees since the employees were deemed to have been acting outside the scope of their employment. As above, although 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 whether or not there was a 'close connection' between the wrongful act and employment): Beard v London General Omnibus Co [1900] 2 QB 530 in which a bus conductor, with delusions of grandeur, attempted to drive a bus and in doing so managed to run over the claimant. 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. Keppel Bus Co. v Saab Bin Ahmad [1974] 2 All ER 700 in which a bus conductor, somewhat lacking in customer service skills, hit a passenger with his ticket machine. The argument had not been in relation to ticket fares, but was to do with the conductor's dislike of the passenger. Daniels v Whetstone Entertainments Ltd [1962] 2 Lloyd's Rep 1, in which an employee (a 'bouncer') assaulted the claimant twice - once, during the course of a fracas inside his employer's premises, and a second time, outside the night club. Whilst the employers were held liable for the first assault inside the club, they evaded liability for the second. This was seen as an act of personal revenge and was, therefore, outside the course of employment. An unusual situation arose in Makanjuola v Commissioner of Police for the Metropolis (1992), The Times, 8 August 1989 in which a Nigerian woman unsuccessfully 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. 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 not in the course of his employment. In Storey v Ashton (1869) LR4 QB 476, 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. 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). In Twine v Bean Express Ltd [1946] 62 TLR 458, 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. The Court of Appeal found that the hitch hiker was a trespasser and the employee was not acting within the scope of employment as he was doing something expressly prohibited. Similarly, in Conway v George Wimpey & Co [1951] 2 KB 266 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. The defendant evaded vicarious liability as the driver was doing an expressly forbidden act. Contrast these two cases with Rose v Plenty (see above). 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.

Joel v Morrison (1834)

If the employee's act was unauthorised or expressly prohibited he/she was traditionally deemed to have been on a 'frolic of his own' and the employer would not be vicariously liable.

A Tort Has to be Committed by Another (X)

It is essential to establish that a tort has been committed by another person (X) before the defendant can be made vicariously liable. If there is no tort there can be no vicarious liability. In the vast majority of cases the tort is negligence, although an employer may also be held liable for an assault, a battery, an act of false imprisonment and a defamatory statement made by an employee.

Makanjuola v Commissioner of Police for the Metropolis (1992)

Nigerian woman unsuccessfully 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. 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 not in the course of his employment.

The Employment Relationship: Introduction

Once it has been established that a tort has been committed, the identity of the tortfeasor and his/her relationship with the defendant needs to be determined. This requires two considerations: 1. is the tortfeasor an employee? 2. is the defendant the tortfeasors employer? The relationship of employer/employee is one where there is a contract of service. It is to be contrasted with the employer/independent contractor relationship where there is a contract for services. Historically where the tortfeasor was deemed to be an independent contractor operating under a contract for services, vicarious liability would not arise. However, recent case law suggests this may no longer always be the case providing it can be established that the tortfeasor has a 'relationship akin to employment' (see below). Over the years, the courts (and tribunals) have developed several tests to ascertain whether or not an employer/employee relationship exists (including the control test and the organisation/integration test). As such, many cases have not always been concerned with tortious issues, but rather with questions of employment law, such as unfair dismissal and the right to industrial benefits, or the liability for tax all of which require the courts to determine the employment status of the individual (i.e. employee vs worker/independent contractor).

Current Approach: Close Connection tests

Recent case law emphasises the importance of the connection between the employees' employment duties and the tort committed: is there a close connection between the employee's tort and the role he/she is employed to do? In Lister v Hesley Hall Ltd [2002] 1 AC 215 the defendant company, who ran a local authority childrens' home, was held vicariously liable for sexual abuse committed by one of its employees, a house father. Lord Steyn stated that the correct approach when determining this issue 'is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort.' In this case, the warden's torts were closely connected with his employment as it was because of his position that he was able to exploit the children so it was held to be fair and just to hold the employer vicariously liable. The tort was committed on the employer's premises during working hours. The 'close connection' approach from Lister was used in Mattis v Pollock (t/a Flamingo's Nightclub) [2004] 4 All ER 85. 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. 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. The close connection test was also applied in Gravil v Carroll and Another [2008] EWCA Civ 689 in which 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. On appeal the claimant was successful. 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. Similarly in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA and Various Claimants (see above) there was held to be a close connection between the role of the priest/brothers and what they were supposed to do and the torts committed. The defendants placed the abusers in a pastoral role and it was this role that allowed them access to the children and to carry out the abuse. The test appears to be very much driven by notions of policy and what is fair and just. The significant judgment of the Supreme Court in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 1 has emphasised the courts willingness to rely on the Lister closeness of connection test in lieu of the previous Salmond tests for determining when something is in the course of employment. Morrisons supermarket was found to be vicariously liable for the serious assault and battery perpetrated by one of its employers, Mr Khan, on a customer, Mr Mohamud, which happened on the forecourt of a petrol station owned by Morrisons. Lord Toulson (with whom the other Judges agreed) stated that the closeness of connection test is actually a two-fold test: What functions or "fields of activities" have been entrusted by the employer to the employee (what was the nature of his job)? 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? It was held that it was Mr Khan's job to serve and help customers and answer their inquiries. When Mr Mohamud first approached the petrol station kiosk and asked Mr Khan if he could print some documents from his USB, Mr Khan's rude response was clearly 'closely connected' with his duties (responding to inquiries). The verbal, racial and physical abuse that ensued as Mr Khan followed Mr Mohamed to the forecourt and his car was held to be a "seamless episode", an unbroken sequence of events that started with an act that was closely connected to his employment duties. The abuse was not an act of personal vengeance and as Morrisons had entrusted Mr Khan to deal with members of the public it was held to be just that they should be responsible for his abuse of trust. The tort was committed on the employer's premises during working hours. The courts have also used the 'close connection' test to determine whether a negligent act is committed in the course of employment. In Fletcher v Chancery Lane Supplies [2016] EWCA Civ 1112 the claimant, a policeman, was cycling when he collided with an employee of the defendant, a pedestrian who was crossing the road without looking properly. The defendant had a shop and office on opposite sides of the road. At the time of crossing the road the tortfeasor was wearing his company uniform with the company logo and work boots. He had finished his work shift at midday and the accident happened 40 minutes later. He was near the shop where he worked but there was no evidence that his crossing the road was in any way linked to his job (there was no evidence he was heading back to the shop/office). The court applied the approach from Mohamud and said the importance was whether there was a connection between his work and the negligence. It was held on the evidence that it could not be established that there was a close connection. It was impossible to know if crossing the road was sufficiently connected to the tortfeasor's work at the time to make it reasonable to find his employer vicariously liable because it was unknown why the tortfeasor had been crossing the road. The significance here being that yet again the traditional Salmond approach was not followed. In summary, when considering whether a wrongful act has occurred during the course of employment, start by applying the Lister close connection test. Refer to similar/relevant cases to your fact pattern when establishing whether there is a close connection, including any relevant pre-2016 case authorities.

Lending Employees

Sometimes the situation arises where the employer (E) lends his employee (X) to another employer or hirer (H). If X then commits a tort, it is necessary to establish which of E or H is vicariously liable. This is a common occurrence in specialist work, such as in the construction and catering industries. In Mersey Docks and Harbour Board v Coggins and Griffiths [1947] AC 1 the House of Lords stated that, as a general rule, the employer (E) would remain vicariously liable and that it would be difficult for E to rebut this presumption. Interestingly, in the case of Viasystems Ltd v Thermal Transfer Ltd and Others [2005] EWCA Civ 1151 the Court of Appeal found that, in certain circumstances, given there is no binding authority against the concept of dual vicarious liability, it is possible for two parties to be vicariously liable for the actions of the same, negligent employee. 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 i.e. the employers have an equal measure of control over the tortfeasor. In practice, dual liability such as arose in this case is rare, and in any event 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 Various Claimants (see above) in which the Institute and School were both held vicariously liable. Much emphasis is placed on the level of control enjoyed by the hirer over the worker and the provision of equipment. Mersey Docks involved the hire of X (a crane driver) and his crane to H (a firm of stevedores), under a contract that specified that X was to be the servant of H. X's wages continued to be paid by the original employer and although H could instruct him as to the work to be done on a day to day basis they did not tell him how to operate his crane. The original employer also retained the power of dismissal. Taking all these factors into account (with particular emphasis on control), the House of Lords found that X was still the employee of E; the original employer (E) had authority to tell X the manner in which his work should be done (X was using E's crane), E paid X's wages, had the power to dismiss X and the duration of the post was temporary. For a recent application of the Mersey Docks principle, see Hawley v Luminar [2006] EWCA Civ 18.

Cox v Ministry of Justice [2016]

Supreme Court applied the approach followed in JGE and the Christian Brothers case, and found the prison service to be vicariously liable for the torts of a prisoner working within the catering section of HM Prison Swansea. Lord Reed focused on criteria (2) to (4) from the judgment of the Christian Brothers' case (see above). In short, 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. The court held that the defendant should be liable applying JGE as an authority; the tortfeasor was carrying out an activity on behalf of the defendant that was integral to the defendants business (feeding prisoners) and by doing so the defendant had created the risk of the tort being committed. It was therefore fair, just and reasonable to hold the defendant vicariously liable.

Mattis v Pollock (t/a Flamingo's Nightclub) [2004]

The 'close connection' approach from Lister was used. 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. 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.

Warner Holidays Ltd v Secretary of State for Social Services [1983]

The approach in Ready Mixed Concrete was further developed. McNeil J attempted to set out a non-exhaustive list of points a court should consider in determining the economic reality of any particular relationship. The points were as follows: level of control (see above); provision of tools and equipment (See Ready Mixed, above); salary; tax/PAYE/national insurance; sick pay; 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); integration within the organisation (see Whittaker v Minister of Pensions [1966] 3 All ER 531); control over hours of work; right/ability to do other work; and Argent v Minister of Social Security [1968] 1 WLR 1749. An actor who taught pat- time in a school was held to be self-employed. He did not have to teach if he was offered an acting job. 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.

Gravil v Carroll and Another [2008]

The close connection test was also applied. 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. On appeal the claimant was successful. 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.

Fletcher v Chancery Lane Supplies [2016]

The courts have also used the 'close connection' test to determine whether a negligent act is committed in the course of employment. claimant, a policeman, was cycling when he collided with an employee of the defendant, a pedestrian who was crossing the road without looking properly. The defendant had a shop and office on opposite sides of the road. At the time of crossing the road the tortfeasor was wearing his company uniform with the company logo and work boots. He had finished his work shift at midday and the accident happened 40 minutes later. He was near the shop where he worked but there was no evidence that his crossing the road was in any way linked to his job (there was no evidence he was heading back to the shop/office). The court applied the approach from Mohamud and said the importance was whether there was a connection between his work and the negligence. It was held on the evidence that it could not be established that there was a close connection. It was impossible to know if crossing the road was sufficiently connected to the tortfeasor's work at the time to make it reasonable to find his employer vicariously liable because it was unknown why the tortfeasor had been crossing the road. The significance here being that yet again the traditional Salmond approach was not followed.

The Employment Relationship: The Multiple or Economic Reality Test

The favoured approach to determining employment status is not to apply one single test but to use an 'economic reality, composite' test, sometimes referred to as the 'multiple factors' test. In Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497, the court had to consider the status of X who drove a concrete mixer. X was responsible for hiring, insuring and running the lorry and was paid by the company on the basis of his mileage. He had no set hours, no instructions on routes or set breaks and was defined in the contract as an independent contractor. However, the company exercised control over uniform and colours of the lorry (he could not use the lorry for another business), but, despite this, the court held the driver to be an independent contractor. The driver was seen as being in business on his own account; 'he who owns the assets and bears the risk is unlikely to be a servant'. The three part test to be applied following the approach in Ready Mixed Concrete is; 1. Remuneration in exchange for personal service and mutuality of obligations •Personal service means the employee must be required to fulfil his duties personally. If a worker is entitled to send a substitute to do the work in his place this cannot be an employment relationship (Express and Echo Publications v Tanton [1999] IRLR 367). However, if the worker's written contract includes a substitution clause but this does not reflect the reality of the arrangement between the parties (AutoClenz Ltd v Belcher 2011 UKSC 41) or if the right to send a substitute is fettered so that the employer controls who is actually selected as the substitute (McFarlane v Glasgow City Council [2001] IRLR 7) this may not negate employment status. •Mutuality of obligations simply means the employer is required to provide work to the employee and the employee is required to do the work. In O' Kelly v Trusthouse Forte [1983] 3 All ER 456 a casual waiter was found not to be an employee on the grounds that there was no mutuality of obligations i.e. he had no obligation to work, nor did his employers have any obligation to provide him with work. Where a person is on a 'Zero hours contract' the absence of mutuality of obligations means they are unlikely to be deemed an employee. 2. Control •The more control the employer exercises, the more likely it will be that the other party is an employee. Consider who has control over the tasks to be done, the way in which the tasks are performed (including who provides the tools) and when and where the work is to be completed. 3. All other contractual factors consistent with an employment relationship It is often in the employers interest to label their workers as independent contractors rather than employees so they can avoid paying certain benefits, tax, national insurance and to protect them from unfair dismissal claims (only available to employees). Labelling, i.e. the 'labels' a contract gives to the parties (e.g. self- employed/worker/employee) will be relevant but by no means conclusive. In a number of cases the courts have emphasised the importance of looking beyond the 'labels' the parties are given to the reality of the relationship and arrangement between the parties. In Massey v Crown Life [1977] EWCA Civ 12 the courts emphasised the need to ensure consistency between the contractual labels and the reality of the relationship. In Autoclenz Ltd v Belcher the Supreme Court confirmed that the written terms of an agreement (including the labels, any substitution clause) are the starting point but the focus should be on the actual legal obligations of the parties and the true nature of the agreement. The approach in Ready Mixed Concrete was further developed in Warner Holidays Ltd v Secretary of State for Social Services [1983] ICR 440, in which McNeil J attempted to set out a non-exhaustive list of points a court should consider in determining the economic reality of any particular relationship. The points were as follows: level of control (see above); provision of tools and equipment (See Ready Mixed, above); salary; tax/PAYE/national insurance; sick pay; 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); integration within the organisation (see Whittaker v Minister of Pensions [1966] 3 All ER 531); control over hours of work; right/ability to do other work; and Argent v Minister of Social Security [1968] 1 WLR 1749. An actor who taught pat- time in a school was held to be self-employed. He did not have to teach if he was offered an acting job. 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.

Was the Tort Committed in the Course of Employment? Pre 2016 Case Law Inside the Course of Employment

The following cases illustrate examples of when an employee was found to be acting in the course of employment and their employer held vicariously liable. Although 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): Bayley v Manchester, Sheffield and Lincolnshire Railway (1873) LR 8 CP 148 in which an over-zealous railway porter charged with ensuring that customers were on the correct train, injured the claimant whilst pulling him from the train. 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). Century Insurance v Northern Ireland Road Transport Board [1942] AC 509 in which a lorry driver caused an explosion by carelessly smoking a cigarette whilst filling his lorry with petrol. This was held to be in the course of employment as he was doing something authorised (filling the lorry with petrol) in an unauthorised manner (smoking whilst filling the lorry with petrol). Harvey v RG O'Dell [1958] 1 All ER 657 in which a workman travelled five miles during working hours to get lunch. 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. Rose v Plenty [1976] 1 WLR 141 in which a 13-year-old boy was injured whilst assisting a milkman on his rounds. The milkman had been expressly prohibited from enlisting help by his employer. Due to the milkman's negligent driving, the boy had his leg trapped under the milkfloat. Denning LJ found the employers vicariously liable, on the basis that the prohibited act (i.e. enlisting the help of the boy) was done 'for the employer's business'. Scarman LJ, who also found the employers liable, followed the more traditional analysis, holding that the prohibited act simply constituted an unauthorised mode of performing the task he was employed to carry out. He noted, 'The proper approach to the nature of the servant's employment is a broad one.' Smith v Stages [1989] 2 WLR 529 in which two employees were injured in a car crash. As they had been paid travel expenses, were paid for travelling time and were within working hours, the House of Lords held that they were in the course of employment. In determining whether an employee is acting within the course of employment when travelling on the highway, the material question is whether he was going about his employer's business at the material time. It is well established that employees are generally outside the scope of their employment whilst travelling to and from work unless on their employer's business.

The Rationale Behind Vicarious Liability

The following justifications (though not always that convincing) have been cited for vicarious liability: The employer is in a better financial position to compensate a victim - colloquially known as the 'deep pockets' argument; Under the Employers' Liability (Compulsory Insurance) Act 1969 all employers have to obtain compulsory insurance for their employees. The employer exercises both control and supervision over its employees; An employer may be careless in selecting negligent employees and should suffer the consequences thereof. Vicarious liability should encourage employers to select staff carefully; The benefit/burden theory - an employer obtains the benefit of an employee so it is only fair that it suffers any corresponding burden; and Vicarious liability encourages employers to provide better training, supervision and control of employees (maintains standards of good practice).

Introduction

The term vicarious liability refers to situations where one party is held liable for the torts of another. It arises because of a specific relationship between the parties. In fact, the term 'vicarious' actually means 'on behalf of another'. It is not a tort itself, but merely a determination of who is potentially liable. Vicarious liability can be described as a form of secondary liability. While a defendant who is held liable to compensate a claimant is normally being held liable for his own wrong doing (primary liability), a defendant who is vicariously liable is being held responsible for the wrongdoing of another person. Such a defendant is being required to compensate the claimant for harm caused by that other person's tortious actions. There is no need to prove fault on the part of the defendant. The defendant who is vicariously liable incurs strict liability. Vicarious liability merely provides a convenient device to enable a claimant, in certain cases, to look beyond the immediate cause of his harm to a person who is often in a better position to pay compensation, e.g. the employer. Vicarious liability has been most commonly exercised in employer and employee relationships (originally master and servant); though you should be aware that it can arise in other situations, such as principal and agent (a concept which is not tested on the GDL). In vicarious situations there are often joint tortfeasors, i.e. two parties, such as employer and employee, who are jointly liable. In reality, the party sued is often the one in the best position, financially, to meet any judgment.

Elements of Vicarious Liability

To establish vicarious liability it must be shown that: A tort has been committed by another (X); X is an employee of the defendant being sued; and The tort was committed in the course of employment.

The Employer's Indemnity/Contribution

Under s 1(1) Civil Liability (Contribution) Act 1978 an employer may be entitled to seek an indemnity from his employee should he be forced to pay damages in respect of the employee's tort. The court will allow such a claim if it is 'just and equitable' to do so. There is an analogous common law remedy under what is known as the 'Lister Principle', derived from the case of Lister v Romford Ice and Cold Storage Co [1957] AC 555. This right is rarely exercised by insurers following their compliance with a 'gentleman's agreement' not to do so in the absence of wilful misconduct or collusion.

A Relationship Akin to Employment

Until 2012 the only cases that had succeeded in vicarious liability were those where there was a traditional relationship of employee/employer between the parties. In JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 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. The court accepted that the priest was not an employee of the Roman Catholic diocese (there was no contract between the Trust and the priest, the Trust had no control over the priest and the priest did not receive direct remuneration). However, sympathetic to the claimants, the courts took the radical step of extending vicarious liability to a relationship 'akin to employment'. The test was whether the relationship of the diocese and the priest was so close in character to one of employer/employee that it was just and fair to hold the diocese vicariously liable. 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. In Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 56 ('the Christian Brothers' case) the Institute, an unincorporated association of lay brothers of the Catholic Church, was held vicariously liable for the acts of brothers supplied to teach in a residential school who 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. However, the Supreme Court held that the brothers were in a relationship 'akin to employment' with the Institute. The vows operated in much the same way as a contract, the Institute directed them as to what work to do within the school and this work was done in furtherance of the Institute's mission. 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. These decisions leave uncertainty as to the boundaries of vicarious liability, and they also demonstrate, once again, the extent to which policy pervades tort law. In the significant case of Cox v Ministry of Justice [2016] UKSC 10, the Supreme Court applied the approach followed in JGE and the Christian Brothers case, and found the prison service to be vicariously liable for the torts of a prisoner working within the catering section of HM Prison Swansea. Lord Reed focused on criteria (2) to (4) from the judgment of the Christian Brothers' case (see above). In short, 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. The court held that the defendant should be liable applying JGE as an authority; the tortfeasor was carrying out an activity on behalf of the defendant that was integral to the defendants business (feeding prisoners) and by doing so the defendant had created the risk of the tort being committed. It was therefore fair, just and reasonable to hold the defendant vicariously liable. These three case authorities are the leading authorities on when relationships outside of employment contracts can give rise to vicarious liability. The 'akin to employment' test appears to be relevant when the tortfeasor is neither an employee nor independent contractor.

O' Kelly v Trusthouse Forte [1983]

a casual waiter was found not to be an employee on the grounds that there was no mutuality of obligations i.e. he had no obligation to work, nor did his employers have any obligation to provide him with work. Where a person is on a 'Zero hours contract' the absence of mutuality of obligations means they are unlikely to be deemed an employee.

Keppel Bus Co. v Saab Bin Ahmad [1974]

bus conductor, somewhat lacking in customer service skills, hit a passenger with his ticket machine. The argument had not been in relation to ticket fares, but was to do with the conductor's dislike of the passenger.

Beard v London General Omnibus Co [1900]

bus conductor, with delusions of grandeur, attempted to drive a bus and in doing so managed to run over the claimant. 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.

JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012]

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. The court accepted that the priest was not an employee of the Roman Catholic diocese (there was no contract between the Trust and the priest, the Trust had no control over the priest and the priest did not receive direct remuneration). However, sympathetic to the claimants, the courts took the radical step of extending vicarious liability to a relationship 'akin to employment'. The test was whether the relationship of the diocese and the priest was so close in character to one of employer/employee that it was just and fair to hold the diocese vicariously liable. 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.

Massey v Crown Life [1977]

courts emphasised the need to ensure consistency between the contractual labels and the reality of the relationship. In Autoclenz Ltd v Belcher the Supreme Court confirmed that the written terms of an agreement (including the labels, any substitution clause) are the starting point but the focus should be on the actual legal obligations of the parties and the true nature of the agreement.

Twine v Bean Express Ltd [1946]

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. The Court of Appeal found that the hitch hiker was a trespasser and the employee was not acting within the scope of employment as he was doing something expressly prohibited.

Storey v Ashton (1869)

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. 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).

Daniels v Whetstone Entertainments Ltd [1962]

employee (a 'bouncer') assaulted the claimant twice - once, during the course of a fracas inside his employer's premises, and a second time, outside the night club. Whilst the employers were held liable for the first assault inside the club, they evaded liability for the second. This was seen as an act of personal revenge and was, therefore, outside the course of employment.

The significant judgment of the Supreme Court in Mohamud v WM Morrison Supermarkets plc [2016]

has emphasised the courts willingness to rely on the Lister closeness of connection test in lieu of the previous Salmond tests for determining when something is in the course of employment. Morrisons supermarket was found to be vicariously liable for the serious assault and battery perpetrated by one of its employers, Mr Khan, on a customer, Mr Mohamud, which happened on the forecourt of a petrol station owned by Morrisons. Lord Toulson (with whom the other Judges agreed) stated that the closeness of connection test is actually a two-fold test: What functions or "fields of activities" have been entrusted by the employer to the employee (what was the nature of his job)? 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? It was held that it was Mr Khan's job to serve and help customers and answer their inquiries. When Mr Mohamud first approached the petrol station kiosk and asked Mr Khan if he could print some documents from his USB, Mr Khan's rude response was clearly 'closely connected' with his duties (responding to inquiries). The verbal, racial and physical abuse that ensued as Mr Khan followed Mr Mohamed to the forecourt and his car was held to be a "seamless episode", an unbroken sequence of events that started with an act that was closely connected to his employment duties. The abuse was not an act of personal vengeance and as Morrisons had entrusted Mr Khan to deal with members of the public it was held to be just that they should be responsible for his abuse of trust. The tort was committed on the employer's premises during working hours.

AutoClenz Ltd v Belcher 2011

if the worker's written contract includes a substitution clause but this does not reflect the reality of the arrangement between the parties this may not negate employment status.

Conway v George Wimpey & Co [1951]

rivers 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. The defendant evaded vicarious liability as the driver was doing an expressly forbidden act. Contrast these two cases with Rose v Plenty (see above). 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.

Mersey Docks and Harbour Board v Coggins and Griffiths [1947]

the House of Lords stated that, as a general rule, the employer (E) would remain vicariously liable and that it would be difficult for E to rebut this presumption (lending)

Ready Mixed Concrete v Minister of Pensions [1968]

the court had to consider the status of X who drove a concrete mixer. X was responsible for hiring, insuring and running the lorry and was paid by the company on the basis of his mileage. He had no set hours, no instructions on routes or set breaks and was defined in the contract as an independent contractor. However, the company exercised control over uniform and colours of the lorry (he could not use the lorry for another business), but, despite this, the court held the driver to be an independent contractor. The driver was seen as being in business on his own account; 'he who owns the assets and bears the risk is unlikely to be a servant'. The three part test to be applied following the approach in Ready Mixed Concrete is; 1. Remuneration in exchange for personal service and mutuality of obligations •Personal service means the employee must be required to fulfil his duties personally. If a worker is entitled to send a substitute to do the work in his place this cannot be an employment relationship (Express and Echo Publications v Tanton [1999] IRLR 367). However, if the worker's written contract includes a substitution clause but this does not reflect the reality of the arrangement between the parties (AutoClenz Ltd v Belcher 2011 UKSC 41) or if the right to send a substitute is fettered so that the employer controls who is actually selected as the substitute (McFarlane v Glasgow City Council [2001] IRLR 7) this may not negate employment status. •Mutuality of obligations simply means the employer is required to provide work to the employee and the employee is required to do the work. In O' Kelly v Trusthouse Forte [1983] 3 All ER 456 a casual waiter was found not to be an employee on the grounds that there was no mutuality of obligations i.e. he had no obligation to work, nor did his employers have any obligation to provide him with work. Where a person is on a 'Zero hours contract' the absence of mutuality of obligations means they are unlikely to be deemed an employee. 2. Control •The more control the employer exercises, the more likely it will be that the other party is an employee. Consider who has control over the tasks to be done, the way in which the tasks are performed (including who provides the tools) and when and where the work is to be completed. 3. All other contractual factors consistent with an employment relationship

Lister v Hesley Hall Ltd [2002]

the defendant company, who ran a local authority childrens' home, was held vicariously liable for sexual abuse committed by one of its employees, a house father. Lord Steyn stated that the correct approach when determining this issue 'is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort.' In this case, the warden's torts were closely connected with his employment as it was because of his position that he was able to exploit the children so it was held to be fair and just to hold the employer vicariously liable. The tort was committed on the employer's premises during working hours.