Law of Torts: Vicarious Liability

• Vicarious liability may arise in a problem or essay question on the Law of Torts exam paper.

Basic Principles of Vicarious Liability

• Vicarious liability is a mechanism that allows a plaintiff to sue someone other than the tortfeasor.
• It's a form of secondary liability.
• Vicarious liability is not a tort in itself.
• It is not predicated on any wrongdoing by the employer, who may be entirely blameless.
• The employee remains primarily liable, with the employer being liable "but as well as" the employee.
• It can offer a simpler and more effective route for securing compensation.

Examples of Vicarious Liability Scenarios

• An ambulance driver negligently jumps a red light, causing injury to a pedestrian.
• An office worker experiences sustained homophobic bullying by a supervisor.
• A school pupil is sexually assaulted by a teacher.

Vicarious Liability Expansion

• The legal boundaries have been tested by litigants leading to a rapid growth in cases.
• There were Six judgments from the House of Lords/Supreme Court between 2001-2017.
• There were three Privy Council decisions over the same period.
• Attempts by the Supreme Court in 2012 (Various Claimants v Catholic Child Welfare Society) and 2016 (Cox v Ministry of Justice, Mohamud v WM Morrison Supermarkets plc) failed to stem the flow of cases.

Key Questions Regarding Vicarious Liability

• What are the justifications for vicarious liability?
• How is vicarious liability established?

Justifying Vicarious Liability

• Vicarious liability is understood as developing not from a clear legal principle, but from social convenience and rough justice (Imperial Chemical Industries Ltd v Shatwell [1965] p 685).
• An employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.
• The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
• The employee's activity is likely to be part of the business activity of the employer.
• The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee.
• The employee will, to a greater or lesser degree, have been under the control of the employer.

Establishing Vicarious Liability: The 2+ Stage Test

• A defendant will be vicariously liable if two conditions are met.
• There is an employer-employee relationship, or one akin to employment, between the defendant and the tortfeasor (stage 1).
• There is a connection between that relationship and the tortious wrongdoing of the employee (stage 2).
• See Various Claimants v Catholic Child Welfare Society [2012].

A Tort Must Occur

• An employee must commit a tort for vicarious liability to arise
• This applies to; negligence and intentional torts, the statutory tort of harassment, and misuse of private information

Changing View on Employment Relationships

• There's no exhaustive list of considerations for determining employment relationships.
• Strict rules cannot be laid down due to relative weight of various considerations in particular cases (Market Investigations Ltd v Social Security [1969] p 184-185).
• Courts consider factors, typically understood under two tests
• Control: how far the employer is able not only to tell the employee what to do but also how to do it
• Integration: how far the 'employee's' work is integrated into, and an integral part of, the particular business
• Significance of control dictates that the employer can direct what the employee does, not how he does it.

Various Claimants v Catholic Child Welfare Society [2012] (The Christian Brothers Case)

• Claimants were victims of sexual and physical abuse by members of the Brothers of the Christian Schools, employed as teachers at a residential school.
• Claims were brought by 170 men for abuse which took place over a 40-year period.
• Both the school and the Institute were found vicariously liable for the brothers' abuse.
• The relationship between the brothers and the institute was 'akin to' employment, justifying vicarious liability, despite the brothers not being directly employed by the Institute.

Establishing Vicarious Liability: Stage 1 Considerations (Christian Brothers Case)

• Remember Lord Phillips' five factors

• Where the defendant and tortfeasor are not bound by a contract of employment, the same five factors can properly give rise to vicarious liability if the relationship is akin to that between employer and employee.

Lord Phillips on Christian Brothers Case

• The relationship between the institute and the teaching brothers had all the essential elements of an employer-employee relationship
• The Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body.
• The brothers taught students at the direction of the provincial.
• Teaching activity undertaken by the brothers was in furtherance of the mission of the institute.
• The conduct of brother teachers was dictated by the institute's rules.
• Their relationship was closer than employer/employee because:
  • Brothers were bound by vows to the institute instead of contracts.
  • Brothers transfered all earnings under deeds whereas the institute catered to their needs
• These differences are not material as the close relationship rendered them closer than an employer and their employees.

Establishing Vicarious Liability: Stage 2 Considerations (Christian Brothers Case)

• The boys were triply vulnerable given imprisonment at school. The brother teachers were placed in the school to care for the educational and religious needs of these pupils.
• Abusing the boys was diametrically opposed to the teachers roles,.
• This established the necessary close connection between the abuse and the relationship between the brothers and the Institute.
• This ammounted to a strong causative link.

Cox v Ministry of Justice [2016]

• A prisoner carrying out paid work under supervision in the kitchen negligently dropped a large bag of rice on the prison catering manager's upper back.
• The Ministry of Justice was vicariously liable because the prisoner's activity in unloading supplies was 'akin to employment', despite the relationship to the prison not being voluntary.

Armes v Nottinghamshire County Council [2017]

• C experienced abuse by her foster carers over three years.
• C did not ague the local authority (LA) were negligent in the selection or supervision of the foster parents.
• The LA was vicariously liable for the actions of the foster partents due to breach of a non-delegable duty.
• Held; Th relationship was 'akin to employment' and the authorithy was vicariously liable.
  • The LA recruited, selected and trained the foster parents, paid their expenses, and supervised the fostering.
  • Foster parents were not carrying out an independent business of their own.
  • The abuse was committed by the foster parents in the course of an activity carried on for the benefit of the LA.
  • Placement of children creates a relationship of authority and trust where close control cannot be exercised.
  • The LA exercised significant control; approval, inspecton, supervision and removal.
  • Imposing vicarious liability would not discourage Placing children with foster parent and thus at much great cost.

Independent Contractors vs Employees

• Independent Contractors: under contract FOR services = D not VL for torts
• Employee: under contract OF employment = D may be VL for employees' torts

Barclays Bank v Various Claimants [2020]

• Claimants were employees of Barclays Bank (BB) arranged to have medical examinations with a Dr Bates.
• Dr.Bates sexually assualted them the claimaints sougth to hold BB vicariously liable for those assaults
• Dr.Bates was never deemed 'anything close to an employee or BB.
• BB was not vicariously liable.
• Restated the legal distinction which holds that independant contrations actions are not BB is liability whereas employee the actions are intregral.

Lady Hale in Barclays Bank

• The Bank made the arrangements for the examinations and sent him the forms to fill in, and Therefore chose the questions to which it wanted answers.
• The same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books.
• He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.

Lady Hale Continued

• Th question to consider is if the tortfeasor is carrying business on their own account or is in relationship akin to employment with the defendant.
• The five incidents identified by Lord Phillips may be helpful in identifying a relationship that is fair, just and reasonable to impose vicarious liability.
• Understatnding relationship is key where tortfease carryinhg business on their independent business

Lord Burrows in BXB

• 'akin to employment, the court must consider similarites between the contract depending on whether or not the work is paid.
• Relevant features whether the work is paid is performed by tortfeasor, extenf of the defendants control for defendants benefits of appoinment
• Also consider; the appoiintment, termination and if there is a herichary.

MXX V A Secondary School [2023]

• A student undertoop unpaid woek experience at teh school.
• He sexually assultated the claimnant.
• The school was not vicaiously liable because of stage two if the test for vicarious liability.
• The coutd agreed that stage one of vicarious liability.

Davis LJ in MXX

• Providing pysical classes was part if national cumcullar and business, also played a role.
• The defendant made sure PXM was supervised which showed their employment type relationship
• It was one of the ifidents that LAdy had identified for being helpfult.

Lister v Hesley Hall Ltd [2002]

• The case was about Cs who were sexually abused which brought claim of negligence,
• The House master was found to be vicariously liable for the houseactions actions.
• The actions was closely connected fair to hold the employment with inextricapably

Mohamud v WM Morrison Supermarkets PLC [2016]

• Petrol station attendant verbally and physically assaulted a customer of Somali orgin.
• This took place in the garage where the brutality of the un unprovoked attack took place.
• Held the employerrd vicariously to employee attack
• Lord Touloson declared; employers are responsible for the duties of their employees

Lord Toolson in Mohamud

• when the front passenger door, he again told the claimant in threatening words that he was never to come back to the petrol station.
• That was not something personal between them; it was an order to keep away from his employer's premises, which he reinforced by violence. In
• It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. It's their duty that they

WM Morrison Supermarkets PLC V Various Claimants [2020]

• A disgruntled employees skelton to submit to morrisons auditor.
• also made a file available to the public.
• breach happened because in his line of work he had to submit to Morris
• Held action were not line with course of engagement While leak could have seen as a culmination by the court,
• This was not the case with the consideration of the other parties when dealing with an employer,

Impact of Barclays Bank and Morrison

• Limitations on the employment rate and the importance of those employment.
• The test will focus not just on test, but on the details and personal motivation.

Paula Giliker on Barclays Bank and Morrison

• The Supreme court now has a better understanding of the Supreme Court the message that he needs to
• The message seems clear, should now no longer be the case.
• Vicarious Liability can be a costly matter which most lower count and most hope they will heed this message.

TRUSTEES OF THE BARRY CONGREGATION OF JEHOVAH'S WITNESSES V BXB [2023]

• Mrs. b member the the the ajehovah which she sued them, and they were vicariously liable for for ms actions
• Trial and judge and and the awards was said to have been 6200 (UKSC) Jehovah orgnisation not viaibly liable however this was not to say
• That the actions had properly and can regarded

STAGE ONE: 'AKIN TO EMPLOYMENT'

"The features were there rendering the relationship to to show work that that was integral to the orgnaition

• There was hiercharly that followed.

STAGE TWO 'COURSE OF EMPLOYMENT'

• The correct test that should had has been had be proper and failr

AND FINALLY

• There is not sufficient to just extend, vicarious liabilities which would beyond these boundies
• It would not make a principled agreement
• It's important that all boundaries are heard between them.

NO 'TAILORED TEST FOR' SEXUAL ABUSE CASES

• The way is which the law and still needs Taylor.
• The the cases is misleading, the new necessary tailing is already refected in, and embaled by modern tests