vicarious liability
Vicarious Liability is where somebody is held liable for the actions of another person. Employers can be held liable for employees’ negligence. The idea is that the company or manufacturer or public body are in charge of making sure that their staff are equipped, trained and prepared to perform their roles. If they do their jobs incorrectly, then they are responsible for making sure they are punished with sanctions or dismissal. Companies often have liability insurance and can afford to take the hit, whereas an employed worker may not be able to afford the costs or damages that they might have to pay.
There are two questions that essentially make up vicarious liability.
There are two questions that essentially make up vicarious liability.
- Is the person an employee?
- Was the negligence during the course of the employment?
Employee status
There are three tests used but the main one now is the economic reality or multiple test. žIn particular, there are three conditions that should be met before an employment relationship is identified:
Employers are only liable for torts committed by employees during the course of their employment. Judges will decide on policy decisions which means lots of cases varies in their outcomes. žRegardless of reasoning, there are two lines of cases:
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Course of Employment
Courts have appeared to favour a test suggested by Salmond, that employers will be liable in two instances:
Authorised Acts
An employer will be liable for acts that he expressly authorised. They can also be liable for implied authorisation of tortious acts. In Poland v Parr (1927), it was stated that the tort will be during the course of employment if it had been authorised, expressly or impliedly by an employer. This is very rare and there is only this one example really and it is more likely that the liability will occur through an authorised act done in an unauthorised way. |
Authorised acts done in an unauthorised way
An employer can be liable for such acts in a variety of ways
Where something has been expressly prohibited by the employer; where the employee is doing the work negligently; where employees give unauthorised lifts contrary to instructions; and where the employee exceeds the proper boundaries of the job.
In general, an employer will not be liable when the employees’ tortious acts fall outside of the course of employment, or where the employee was ‘on a frolic of his own’.
In Vicarious liability, we are looking at an employer being held responsible for how an employer has carried out their work. There are countless different ways and relationships that employee and employers can have, so it is impossible to give one test that fits every role. There are lots of cases that give different parts of law for different situations. They help to explain what would happen in each situation and to predict and draw comparisons between employment roles.
An employer can be liable for such acts in a variety of ways
Where something has been expressly prohibited by the employer; where the employee is doing the work negligently; where employees give unauthorised lifts contrary to instructions; and where the employee exceeds the proper boundaries of the job.
In general, an employer will not be liable when the employees’ tortious acts fall outside of the course of employment, or where the employee was ‘on a frolic of his own’.
In Vicarious liability, we are looking at an employer being held responsible for how an employer has carried out their work. There are countless different ways and relationships that employee and employers can have, so it is impossible to give one test that fits every role. There are lots of cases that give different parts of law for different situations. They help to explain what would happen in each situation and to predict and draw comparisons between employment roles.
Expressly prohibited acts
Beard v London General Omnibus Co 1900. In this case, a bus conductor drove the bus even though he had been expressly told he was not allowed to. As he was not a conductor and was driving the bus, this fell outside of his employment role and the company were not vicariously liable. |
Frolic of his own’
Hilton v Thomas Burton (Rhodes) Ltd (1961). Here, workmen took an unauthorized break. Thy left their place of work and when returning in a works van they crashed and killed someone. The employer was not vicariously liable because they were said to be 'on a frolic of their own'. This situation often comes up as it is when the employee, maybe at work or during a break in the day, goes off on their own and does something that cannot be linked closely to work carried out in their everyday employment. |
Giving unauthorised lifts
Twine v Beans Express (1946). This case varies to the milkman with the boy because the boy was giving a service and they were benefitting from his help in that case. Here, a hitchhiker was injured through negligence of the driver. He was forbidden to give lifts. The employers were not liable in this case.
Twine v Beans Express (1946). This case varies to the milkman with the boy because the boy was giving a service and they were benefitting from his help in that case. Here, a hitchhiker was injured through negligence of the driver. He was forbidden to give lifts. The employers were not liable in this case.
Acts exceeding proper boundaries of the job
Makanjoula v Metropolitan Police Commissioner (1992) - in this case the claimant was persauded to allow a police officer to have sex with her in return for not reporting her to immigration. There was no liability on the employer as it was said that there was no way that this could be linked any way to the work that the officer carried out. |
Lister v Hesley Hall Ltd 2001
This case is a major development in the law of vicarious liability. Here it was stated that there must be a connection between the duties of an employee and the tort committed. The three claimants were sexually abused over a period of time by a warden at the school. He was convicted of criminal charges and the claim against the school was on the grounds that it had actual or constructive knowledge of the abuse taking place and that they had failed to prevent it. Important: this case rejected the test in Trotman when it got to the Court of Appeal. The claim was allowed originally but then was rejected in the CoA because the wrongful behaviour could not be considered to be 'in the course of employment' according to the establishment definitions. The House of Lords was satisfied that there was an inherent risk of abuse that the employer should have guarded against, and that vicarious liability was appropriate, despite appreciating the applicability of the floodgates argument. |
Mattis v Pollock – employers were VL. This applied the rule set out in Lister and approved it. A bouncer was employed by a nightclub and got involved in an altercation with a customer and the claimant intervened. The bouncer left the club, went home and got a knife, and returned intent on stabbing the claimant outside the club. The Court of Appeal stated that what the bouncer done was so closely connected to what the employer expected of him that the employer should be held vicariously liable. The bouncer was supposed to be intimidating and manhandle customers.
Mohhamud v Morrisons 2016 . Morrisons were held liable in the Supreme court because it satisfied the close connection test. Mr Khan was working at the petrol station when the claimant came in and asked to print off some things from a USB stick. Mr Kahn was really rude and also was violent to the claimant. Morrisons were being sued vicariously because they employed Mr Khan and he was carrying out their work. The claim was allowed in the Supreme Court because the close connection test was passed. It was also mentioned that because he told the claimant to never return, meaning the workplace he was at, he was closely connected to the workplace and work he was supposed to carry out.
If an Employer is successfully sued under VL because of a tort committed by the employee, then they can attempt to sue the employee for some of the money.
Mohhamud v Morrisons 2016 . Morrisons were held liable in the Supreme court because it satisfied the close connection test. Mr Khan was working at the petrol station when the claimant came in and asked to print off some things from a USB stick. Mr Kahn was really rude and also was violent to the claimant. Morrisons were being sued vicariously because they employed Mr Khan and he was carrying out their work. The claim was allowed in the Supreme Court because the close connection test was passed. It was also mentioned that because he told the claimant to never return, meaning the workplace he was at, he was closely connected to the workplace and work he was supposed to carry out.
If an Employer is successfully sued under VL because of a tort committed by the employee, then they can attempt to sue the employee for some of the money.