Vicarious Liability: Torts Law

• Vicarious liability can be found on law of torts exam paper as a problem question and/ or an essay question.

Vicarious Liability - Basic Principles

• Vicarious liability allows one to sue someone other than the tortfeasor.
• It is a form of secondary liability, not a tort itself.
• It is not predicated on the employer's wrongdoing; they may be entirely blameless.
• The employee remains primarily liable, but the employer is liable as well.
• Provides an easier, more effective route for securing compensation.

Examples

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

Vicarious Liability 'On The Move'

• The expansion of vicarious liability has caused uncertainty as litigants test its boundaries, leading to a growth in cases.
• Six judgments from the House of Lords/Supreme Court occurred between 2001-2017.
• Three Privy Council decisions occurred during same time period.
• Numerous Court of Appeal and lower court judgments have been made.
• Attempts by the Supreme Court in 2012 and 2016 have not stemmed the flow of cases.

Two Key Questions

• What justifies vicarious liability?
• How is vicarious liability established?

Justifying Vicarious Liability

• It has developed not as a result of clear legal principle, but to provide rough justice through social convenience.
• Suggested justifications:
• The employer is more likely to have means to compensate the victim and be insured against liability.
• The tort was committed as a result of an activity done on behalf of the employer.
• The employee's activity is likely part of the employer's business activity.
• By employing the employee, the employer created the risk of the tort.
• The employee is, to a greater or lesser degree, under the employer's control.

Establishing Vicarious Liability: 2+ Stage Test

• The defendant will be vicariously liable if:
• There is an employer-employee relationship/akin to employment (stage 1).
• there is a connection between that relationship and the tortious wrongdoing of the employee (stage 2).
• Various Claimants v Catholic Child Welfare Society [2012] is relevant.

A Tort

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

Changing Employment Relationships

• There is no exhaustive list of considerations which are relevant in determining employment relationships.
• Traditionally, courts consider control, how much the employer can dictate what the employee does, and integration, how much the employee's work is part of the business.
• Many employees use skills not easily directed, so employer control lies in directing what is done, not how it is done.

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

• Claimants were abused by members of the Brothers of the Christian Schools, employed as teachers.
• The school and Institute were vicariously liable for the abuse committed by the brothers.
• Although the brothers were not employed by the Institute, the relationship was sufficiently 'akin to' employment to justify vicarious liability.

Were The Christian Brothers Employees? (Stage 1)

• Factors from Lord Phillips to consider:
• The employer is more likely to have the means to compensate the victim than the employee can be expected to have insured against the tort.
• Tort have been a result of activity by the employee on behalf of the employer
• The employee's activity is part of the employer's business activity.
• By employing the employee, the employer created the risk oftort.
• The employee, will to a greater or lesser degree, be have been under control the employer
• If D and tortfeasor lack contract but have same 5 factors properly, their relationship may give rise to VL akin to that betwixt employer and employee.

Lord Phillips Continued

• The relationship between teaching brothers and the institute contained many or all essential elements of employment.
• The institute was subdivided as if a corporate body
• The provincial directed the brothers teaching activity
• Brothers entered contracts because provincial required them to do so.
• Teaching for the brothers was in furtherance of objective/mission for the institute.
• Manner of teachers obligations by institutes rules.
• Differences compared to employment that teacher brothers bound by their vows, not contract and brothers transferred earnings to their needs catered.
• Differences are material, indeed renders relation closer employer than employees.

A Close Connection? (Stage 2)

• Living cloistered school premises were vulnerable because children in school, virtually prisoners in school, personal stories would been believed.
• Teachers in school for educational and religious needs of children.
• Abusing pupils in care opposite objectives, but provided close connection bewixt abuse and relation gave rise liability on parts of latter.
• There was very close connection bewixt abuse of teachers school and sexual abuse assumed be committed

(II) Establishing Vicarious Liability: 2 Stage Test

• D will be vicariously liable when:
• There is an employer-employee relationship/akin between defendant and tortfeasor (stage 1)
• Connection bewixt relationship and tortious conduct by employee (stage 2)

Cox v Ministry of Justice [2016]

• Prisoner carrying out paid work in kitchen negligently dropping bag on prison catering managers uppers at HM Prison Swansea
• UK Supreme Court held minsitry was vicariously liable
• The prisoners activity whilst was unloading supplies akin to employment with prisons relationship not voluntary

Armes v Nottinghamshire County Council [2017]

• C abused by foster carers over three years.
• LA, not being negligent for supervision selection foster parents was liable
  • Either vicariously parent
  • Basis for breach non delegatable duty,
• UK Supreme court Held: relationship bewixt LA responsible children care and foster parents who place kids made authority vicariously liable their non delegatable duty -Integrations and activity business: foster parent trained recruited selected them LA paid -Creation risk child placed to foster homes created authority trust bewixt parents rendering vulnerability -Control approved inspections -Damages insufficient pay compensate victims who can be more easier

Aside: Independent Contractors vs Employees

• Independent Contractors operate contract FOR services = D not VL torts when involved in Mixed Concrete v Minister Pensions
• Employee under OF employment = may be liable tor sorts Market investigations or. VAslam

Barclays Bank v Various Claimants [2020]

• Claimants were employees of Barclays BB Dr Bates had sex assault claim C sought BB liability
• Held: Supreme court found no liability for acts by doctors. Court restated that there are independent contracts who have no liability for for the forms a contract of service the other could be held accountable

Impact Barclays Bank and Morrison

• Limitations akin of employment
• Rein expa close
  • Personnel motor

Paula Giliker on Barclays Bank and Morrison

• The ruling of cases the vicarious can turn situation where employers
• BXB a further by the code to establish principle certain

Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023]

• Mrs B a member of Jehovah's Congregation reported she was raped MS which was by trust and she sought to make liable because actions
• The Judge said D. was legally 62 thousands by The health Organisation
• Court to Jehovah's org agreed relations be like that so proper in acting and was his actions

Stage One: 'Akin to Employment'

• Features relationship for elders being assignment integral the hierarchical for appointed

Stage Two 'Course of Employment'

• Test what to be conduct what for raped so be fairly regarded the role. In para and not what by the

And Finally

• No in there this for that organisation. The

No 'Tailored Test For' Sexual Abuse Cases

• Testing need for this

So Where Does This Leave Us?

• UKSc the UK supreme read and reduce