Tort Law: Vicarious Liability

Vicarious Liability Overview

• Vicarious liability may be found in law of torts exam papers as a problem question and/or an essay question
• It is a mechanism to sue someone other than the tortfeasor
• It is a form of secondary liability
• Vicarious liability is not a tort on its own
• It is not predicated on any wrongdoing by the employer; they often may be entirely blameless
• The employee remains primarily liable, but the employer is liable as well
• Vicarious liability simplifies the route for securing compensation

Examples

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

Vicarious Liability Evolution

• Expansion has caused uncertainty and a rapid growth of cases
• Six judgments from the House of Lords/Supreme Court occurred between 2001-2017
• Three Privy Council decisions occurred over the same period
• There have been numerous Court of Appeal and lower court judgments
• Attempts by the Supreme Court in 2012 in Various Claimants v Catholic Child Welfare Society to give greater guidance
• Further attempts in 2016 in Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets plc have failed to stem the flow of cases
• See also UKSC judgments in: Barclays Bank plc v Various Claimants, WM Morrison Supermarkets plc v Various Claimants and Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB

Key Questions

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

Justifying Vicarious Liability

• Suggestion that vicarious liability developed from social convenience and rough justice and not a clear legal principle (Imperial Chemical Industries Ltd v Shatwell [1965] p 685)
• Lord Phillips provides factors for vicarious liability justification
  • The employer is more likely to have means to compensate the victim and should have insurance
  • The tort will have been a result of the employee carrying out activities on behalf of the employer
  • The business activity of the employee is likely to be part of the employer's business activity
  • By employing the employee, the employer created the risk of the employee commiting a tort
  • The employee will have been under the control of the employer to varying degrees

Establishing Vicarious Liability - 2+ Stage Test

• Defendant will be vicariously liable when:
  • An employer-employee relationship, or one akin to employment, exists between the defendant and the tortfeasor (stage 1)
  • A connection exists between that relationship and the tortious wrongdoing of the employee (stage 2)
• Various Claimants v Catholic Child Welfare Society [2012] provides more information on the 2-stage test

Tort Requirement

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

Changing Employment Relationships

• Identifying an employment relationship does not have an exhaustive list
• Strict rules are not defined for the weight considerations have in particular cases (Market Investigations Ltd v Social Security [1969] p 184-185)
• Traditionally courts broadly used two tests
  • Control considers how far the employer is able to not only tell the employee what to do, but how to do it
  • Integration considers how far the 'employee's' work is integrated into and an integral part of the particular business
• Many employees use a skill or expertise that is not able to be directed by else in the company that employs them
• Today the significance of control is that the employer can direct what the employee does, and not how he does it

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

• Claimants were victims who suffered sexual and physical abuse by members of the Brothers of the Christian Schools
• The members were employed to teach at a residential school for children in local authority care attended by the claimants
• Claims brought by 170 men for abuse alleged to have place over a 40 year period.
• The school and the Institute were held vicariously liable for the abuse committed by the brothers
• Though the brothers were not employed by the Institute, the relationship between them was sufficiently 'akin to' employment to justify the imposition of vicarious liability

Christian Brothers Employees? (Stage 1)

• Remember Lord Phillips' five factors
  • The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insurance against that liability
  • The tort will have been committed as a result of activity being taken 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
• If a defendant and tortfeasor are not bound by employment contract, the relationship must characterized by the same 5 factors that relationship to warrant consideration
• This needs to be on the basis that it is of the nature that is 'akin to that between an employer and employee'
• Lord Phillips continued in the case

What the Court Said

• Many elements of this relationship of teaching brothers and the institute had elements of employer/employee dynamic
  • The institute was subdivided into hierarchical structure and conducted activities as if it was a corporate body
  • Teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it
  • The teaching activity was in furtherance of the objective, or mission, of the institute
  • The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by institute rules
• Differences existed in the relationship
  • Brothers were bound to the institute not by contract but by their vows
  • Brothers entered into deeds obligating them to transfer all earnings to the institute versus the institute paying them
• Neither of these difference is material, they rendered the relationship between brothers and the institute closer than if it were employer and employees

Close Connection (Stage 2)

• Living cloistered on the premises were vulnerable boys, the brother teachers were placed in the school to look after the educational and religious needs of the pupils
• Abusing the boys in their care while diametrically opposed to objectives was one of the factors that provided the close connection between the abuse and the relationship
• This close connection amounts to a strong causative link

Establishing Vicarious Liability (Revisited)

• Revisiting the conditions of vicarious liability
  • An employer-employee relationship, or one akin to employment, exists between the defendant and the tortfeasor (stage 1)
  • A connection exists between that relationship and the tortious wrongdoing of the employee (stage 2)

Key Case Law - Cox v Ministry of Justice [2016]

• A prisoner carrying out work under supervision in the kitchen negligently dropped a large bag of rice on catering manager's upper back
• The Ministry of Justice was held vicariously liable with the prisoner's activity being akin to employment, even though the relationship to the prison wasn't voluntary

Key Case Law - Armes v Nottinghamshire County Council [2017]

• Claimant was abused by foster carers over three years, argued LA was liable for the abuse perpetrated by foster carers either vicariously or on basis of non-delegable duty
• The relationship between LA and foster parents for the children put into their care akin to employment
• The authority bears vicarious liability for abuse carried out by the foster parents (but not in breach of their non-delegable duty), applying the principles in Cox
• Integration and business activity factors
  • LA recruited, selected and trained foster parents and supervised fostering
  • The foster parents were not carrying an independent business of their own, making it is impossible to draw a sharp distinction between LA and foster parents activity
  • Abuse committed by foster parents was in the course of an activity carried out for benefit of LA
• Creation of risk factors
  • Placing children creates a relationship of authority and trust for children where the LA cannot exercise controls
  • This renders children vulnerable to abuse
• Control factors
  • LA exercised control through approval, inspection, supervision and removal
• Ability to pay damages factors
  • Most foster parents cannot afford awards, LA can compensate victims easier
• There was no suggesting imposing vicarious liability would discourage LAs from foster parents and encourage moving care into residential homes

Independent Contractors vs Employees

• Independent contractors have a contract FOR services, defendant is not vicariously Liable for any torts
• Ready Mixed Concrete v Minister of Pensions and National Insurance [1968]
• Employees have a contract OF employment, the defendant may be vicariously liable for the employee's torts
• Market Investigations Ltd v Social Security [1969]; Uber BV and others v Aslam and others [2021]

Key Case Law - Barclays Bank v Various Claimants [2020]

• Claimants were employees or prospective employees of Barclays Bank, BB arranged for them to have medicals with Dr Bates
• The doctor was alleged to have sexually assaulted them and C sought to hold BB vicariously liable
• Dr Bates was never anything close to employee of BB so the court did not hold BB vicariously liable
• The court restated distinction between IC whom are acting on own business for whose torts the defendant is not liable VS employees whose actions are integral to another's business the defendant may be held liable

Lady Hale in Barclays Bank

• Key Point - Dr did work for the bank for a medical examination for the bank to send to fill in
• This is same for many independent contractors, ranging from company for hire or auditors
• He was on own account as medical practitioner with clients with bank being one of clients

Lady Hale Continued

• Question is whether Tortfeasor has own business or a relationship with the defendant
• In doubtful cases the five incidents identified may be helpful for fair and just relationship
• Key lies in key factors in Christian Brothers, Cox and Armes,
• Is is clear that tortfeasor is carrying on own independant

Lord Burrows in BXB

• Applying akin to the relationship depending on facts may consider features that can be contract dependent
• If it is paid in money the extent of the work carried out
• The relationship to whether seniority fits

Key Case Law - MXX v A Secondary School [2023]

• PXM, was 18, had weeks of unpaid work experience sexually assulted the client of 13, MXX
• Judgement - Not vicariously liable to PXM that didn't close the test due to the second stage
• However, the court held that the first stage the the test was fulfilled

Davis LJ in MXX

• School had to have test and they needed the favour between test and testfeasor
• The role carried role
• The tasks carried for the benefit and it released the staff
• By the Lady Hale facts it needs to directed

Establishing Vicarious Liabilty Re-Iterated

• There needs to be an employment or no employment and and need for the Tortfeasor stage one and 2

Key Case Law - Lister V Hesley Hall Ltd [2002]

• The warden was found to be liable for the assult

Key Case Law - Mohamud V WM Morrison Supermarkets PLC [2016]

• Attendant was of Somalian descent against the Brutual
• Morrison did to be attened

Lord Toulson in Mohamud

• Attedant was threathening client and not to report and the position need to held responsible for claimaints
• The defendant needs also held for abused

WM Morrison Supermarkets PLC V Various Claimaints [2020]

• Skelton was in charge with payor data breached s449
• There was not found in the employment
• The test if Motives
• Skelton was not engaged in test and it does not satisfy

Impact of Barclays Bank And Morrison

• It is for test and and test that is important
• Not a test but importnat
• Perosnal mortivation

Poula Gilliker on Barrclays Test

• Will this decsions to slow or leave and it seems to now be

Test of The Barry Congregation Of Jaw[HAS? V WXB

• Test the there organisation test and claimaints, not the with the

Stage One.

• To find the test

The Two course to test

• Not one of the tests

And File

• This is why they need test to to the claimatns

The test still test

• Test if with of that it be

Where This Test Is?

• The Supreme test and the test