Vicarious Liability

Vicarious liability

• This tort means that one person (even though otherwise not a tortfeasor) is liable for a tort committed by someone else.
• It is an extreme form of strict liability.
• An example in English law is the liability of employers for the torts committed by their employees in the course of employment.

Distinction between primary liability and vicarious

• Primary liability – deals with the defendant for their own torts e.g. Failing to control others as in Home Office v Dorset Yacht Co (1970).
• Vicarious liability – the defendant is liable for a tort committed by someone else, as in Home Office v Dorset Yacht Co (1970).
• The Home office in this case were vicariously liable for the torts of the borstal officers, but the borstal officers were not vicariously liable for the torts of the boys: they were primarily liable for their own torts in allowing the boys to escape and cause harm.

Further distinction examples between primary and vicarious liability.

• Attorney-General of the British Virgin Islands v Hartwell (2004) – The claimant in this case argued that the police authorities were liable for the wrongdoing of the policeman on 2 bases. 1. He argued that the authorities were primarily liable for their own negligence in allowing the policeman to remove the guns from the police station and use them for his own purposes and, 2. He argued that the authorities were vicariously liable for the policeman’s torts. He succeeded on the first and failed on the second.
• McDermid v Nash Dredging and Reclamation Co (1987) – The plaintiff was employed by the defendant as a deckhand on a tug, whose captain was employed by a third party (the defendant’s parent company). The plaintiff’s job was to untie the hawsers attaching the tug to a dredger and then knock twice on the wheelhouse door to tell the captain that it was safe to start the tug. One day the captain started the tug before the knocks were given, and the plaintiff, pulled into the sea by snaking ropes, suffered a serious leg injury. The trial judge held that the captain was to be treated as the defendant’s servant, even if he were not. The Court of Appeal held the defendant liable, even though the captain was not their servant.

Justification for the doctrine of vicarious liability

• An employer is more likely to have the assets to pay damages and to be insured against liability than an individual employee.
• It may sometimes be unclear which of a number of employees has actually committed the tort, but the employer will be vicariously liable for all of them.
• The employer has established a business and derives the economic benefits of commercial success: the employer ought therefore to be liable for damage caused by the business.
• The employer is more likely to take training and supervision seriously. Even though the employer has no defence based on care taken, there may be an overall advantage.

Establishing vicarious liability – the claimant has to prove that:

• The alleged tortfeasor was an employee.
• The employee committed a tort.
• The employee committed the tort in the course of employment.

Establish the employee R/ship.

• Distinguish between an employee and an independent contractor. e.g. If your chauffer carelessly knocks a pedestrian down, you are vicariously liable. If your taxi driver does it, you are not.
• There are different tax and national insurance implications for employees, and an employee has greater employment rights and protection. But see Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance (1968), where employer and ‘employee’ have entered into complicated contractual relations, for tax and National Insurance purposes.
• But what about agency staff, will the beneficiaries of these be liable, especially when used by customers and insurance companies?
• No single test has proved satisfactory as a distinction between employees and independent contractors. Courts have identified those features that are more like a contract of service (i.e employment) and those that are more like a contract for services, and considered where the balance lay. See Cassidy v Minister of Health (1951), Market investigations Ltd v Minister of Social Security (1969), (Inspector of Taxes) v Lorimer (1994).

Establishing the employee relationship.

• There is a particular problem with borrowed servants. e.g. Where one company supplies a crane and its driver to work for another company. Who is the employer? The presumption seems to be that the driver remains the employee of the lending company unless this is clearly displaced on the facts. See Bhoomidas v Port of Singapore Authority (1978)
• Casual delegation – This has been only applied in the case of a motor car, where the owner is liable for the negligence of a driver, who is driving with his permission or to some extent, the owners purposes. See Ormond v Crosville Motor services Ltd (1953)

 

The employee must commit a tort

• The employer is liable vicariously only if the employee has committed a tort. The employer can therefore take advantage of any substantive defence available to the employee e.g. Contributory negligence.
• If however, the employee has committed a tort, but cannot be sued because of some procedural bar, the employer cannot take advantage of such a defence. See Broom v Morgan (1953)

The tort must have been committed in the course of employment.

• The ‘Salmond’ test – ‘A master is liable for acts which he has not authorised provided that they are connected with acts which he has authorised that they may be rightly regarded as modes – although improper modes – of doing them’.

The explanation and application of the ‘Salmond’ test.

• The general approach – See Century Insurance Co Ltd v Northern Ireland Road Traffic Board (1942) and General Engineering Services Ltd v Kingston and St Andrew Corporation (1989) – In order to further their pay claim, firemen on a go-slow took five times long as usual to reach a fire at the plaintiff’s premises, which consequently became a total loss. The fireman’s employer was held not liable.
• There have been cases where the employee has deviated from the course of employment. Is this sufficient to take the employee out of the course of employment? In Williams v Hemphill (1966), a lorry driver, contrary to instructions from his employers deviated from his journey. The employers were still held liable.
• An employee is not in the course of his employment, when he is driving to and from work, but there are exceptions, depending on the nature of the job and contractual arrangements. See Smith v Stages (1989)
• What happens where the employee is doing something forbidden by the employer? The outcome is then said to depend on whether the prohibition limited the sphere of employment, in which case the employee is not in the course of employment or to limit the manner in which the employee carried out duties, in which case the employee is still in the course of employment. See Rose v Plenty (1976).
• Where employees have deliberately caused the damage to the claimant – the courts have imposed an orthodox test – they will impose vicarious liability where the employee is acting for the benefit of the employer. e.g. If an employee assaults a thief during the course of his employment. See Poland v Parr & Sons (1927).

The Lister test

• Lister v Hesley hall Ltd (2001) – The House of Lords decided that the warden of a residential school for children, who had some years after the events been convicted of sexual assaults on pupils in his care, was acting in the course of employment so as to make his employers vicariously liable.

The views expressed by various judges in the ‘Lister’ case.

• Their Lordships emphasised the close connection between the acts of the warden and the job he was employed to do. A number of judges noted that the warden was the very person selected to discharge the employer’s own pastoral responsibilities to the children.
• Which employees might fall within the Lister test? It was said that there will be no vicarious liability if the abuse had been perpetrated by a caretaker or handyman at the school (whose duties involve looking after property rather than the pupils)
• The scope of Lister has been considered in Mattis v Pollock (2003) and Attorney-General of the British Virgin Islands v Hartwell (2004)
• Does this test apply only to intentional wrongdoing by the employee?

Defences

• Contributory negligence
• Consent
• Exclusions of liability
• Agreements to face physical risks
• Illegality

Contributory negligence

• The Law Reform (Contributory Negligence) Act 1945 – provides for an apportionment of liability between the claimant and the defendant.
• The claimant must have failed to take reasonable care for his own safety, but no question of a pre-existing duty of care arises. The contributory negligence must be a cause of the damage and the damage must be a reasonably foreseeable consequence of the contributory negligence. The claimant’s negligence may have contributed to the accident itself. See Jones v Boyce (1816) and Froom v Butcher (1975)
• The apportionment – The judge must first determine the amount of damages payable if the claimant had not been negligent and then deduct a certain percentage to reflect the claimant’s contribution. There is modern authority for the view that damages cannot be reduced by 100 per cent, although of course another defence may be available that achieves that effect. See Stapley v Gypsum Mines (1955), Reeves v Commissioner of Police for the Metropolis (2000)

Consent

• The role of consent varies from tort to tort. The patient who consents to the incision and excision necessary to remove an appendix is agreeing to the very thing that would otherwise be battery. The position is very different when the tort involved is negligence or a tort of strict liability, where it is usually referred to as an assumption of risk. Here the claimant cannot usually know in advance what is going to happen in the way that a patient awaiting surgery does , and therefore the application of the defence has to be carefully controlled.
• No tort has occurred, if the defendant is an employer for instance, and the claimant works on a dangerous job. The employer has observed all safety regulations and taken the reasonable care required by the common law. The claimant therefore cannot sue. The issue of consent however arises, if there has been a breach of safety regulations, and the claimant knew of the breach, and agreed to face the risk.
• Consent can operate in 2 different ways as illustrated by sections 2(1) and 2(5) of the Occupiers Liability Act 1957. Section 2(1) envisages the occupier excluding liability by a notice saying ‘Enter at your own risk’, so the claimant cannot get compensation for any injuries sustained. Section 2(5) – the visitor incurring the risk of injury by for example, crossing a defective bridge.

Exclusions of liability

• The right to exclude liability is strictly controlled and has been further constrained by statute. A notice will only be effective only if (i) the claimant knew of the terms in advance, (ii) its terms clearly covers the situation that has occurred, (iii) the claimant was free to choose whether to encounter the risk or not – Burnett v British Waterways (1973)
• The Unfair Contract Terms Act 1977 – The Act is restricted to the exclusion of liability arising in the course of business or on premises occupied for the purpose of a business, but is otherwise of general application.
• Section 149 (3) – The Road Traffic Act 1988 – Prevents car drivers excluding liability to passengers by an agreement or understanding.

Agreements to face physical risks

• Employer and employee – The employee must not merely know of the danger but freely consent to run that risk. Smith v Baker (1891)
• Car Passenger and driver who is drunk, a learner, physically disabled etc – English courts are of the view that the passenger should be unable to sue because of the defence of consent, whilst the Australian courts have tended to say that the defendant only owed a duty of care of that expected from a drunk or learner driver. Cook v Cook (1986)
• Action by spectator/competitor in sporting event against organisers/competitor – No breach of duty because the defendant owed a lesser duty appropriate to someone striving to succeed in a competitive activity. See Wooldridge v Summer (1963), White v Blackmore (1972)
• Unlikely that the defence will apply if the very thing that the defendant was under a duty to do was to protect the claimant against his own voluntary actions, e.g. because the claimant was a known suicide risk. See Reeves v Commissioner of Police (2000)

Illegality

• No compensation payable if the claimant is engaged in some illegal and perhaps criminal activity.

Remedies

• The principles for the assessment of damages for personal injuries are laid down by the common law with some statutory modifications e.g. In the Administration of Justice Act 1982 and the Damages Act 1996. See Lim Poh choo v Camden and Islington Area Authority (1980).
• The object of the damages is to place the claimant in the position he or she would have been in if the tort had not occurred.
• Compensation is based on what the claimant has lost and not on the claimant’s present needs.
• Damages are awarded once and for all as a lump sum and the calculation cannot be reopened.

The heads of damages

• Damages are calculated under various headings and then added together, taking care that the same sum is not counted in twice.
• Pecuniary damage – Damage losses that are expressed or measured in money, such as loss of income if the claimant is unable to work.
• Non- pecuniary damage – Damage that is not so expressed. e.g. For pain suffered and loss of ammenities.

Pecuniary damage

• How do you calculate the loss? – The method used is the ‘multiplier’ method. The multiplicand is the claimant’s net (i.e. After deduction of tax, etc.) annual income. However, there are difficulties and uncertainty about the multiplier.
• What assumptions do you make about what the claimants will do with the money? – Both the courts and Parliament have recently decided to change the assumptions and envisage the typical claimant as using the money to make low-risk investments with a lower rate of interest. This has had the effect of increasing the multiplier and therefore the amount of damages awarded. See Wells v Wells (1999) and Damages Act 1996; Damages (Personal Injury) Order 2001.
• Any assumptions about the future value of money, interest rates and so forth? See Mallett v McMonagle (1970) – save in exceptional circumstances, future inflation is ignored.
• What if the tort has reduced the claimant’s expectation of life? – Pickett v British Rail Engineering (1980) – The House of Lords ruled that lost earnings should be compensated, but the sums that the claimant should have spent on himself should be deducted.
• What if the claimant receives money from other resources other sources as a result of the tort? See solutions on page 215 of your study guide (self explanatory)
• Expenditure incurred – The claimant is entitled to recover the costs resulting from the tort. e.g. Medical treatment, but avoid double compensation.

Non pecuniary damage

• The claimant is also entitled to receive compensation for pain and suffering and for loss of amenities. The awards are usually conventional, but have been known to increase as in the case of Hell v Rankin (2001)

An alternative approach – structured settlements

• See page 216 of your study guide.

Effect of death on damages

• Fatal Accidents Act 1976 – Protects the dependants of the breadwinner, if he/she is killed.
• Study page 217 of your study guide (self explanatory)

 

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JIDE OGUNDIMU IS A SOLICITOR OF ENGLAND AND WALES PROVIDING LEGAL SERVICES TO MEMBERS OF THE PUBLIC. HE IS REGULATED BY THE SOLICITORS REGULATION AUTHORITY. HE HAS LEGAL EXPERIENCE IN AREAS SUCH AS LANDLORD AND TENANT LAW, ANTI-SOCIAL BEHAVIOUR, WELFARE BENEFITS, DEBT AND MONEY ADVICE, NEIGHBOUR DISPUTES, CIVIL LITIGATION, FAMILY AND ESTATE MATTERS, PRIVATE LAW AND DATA PROTECTION. HTTPS://SOLICITORS.LAWSOCIETY.ORG.UK/PERSON/19333/JIDE-BENJAMIN-

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