Vicarious Liability Tort Law Essay

Outline the concept of vicarious liability in tort and discuss the relevance of this principle today

The first point to establish when considering the matter of vicarious liability is that it is not a tort as such. It is a method or principle, by which the courts have determined that someone else should be held liable for the wrongdoings of others.

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This work is about the principle of vicarious liability and covers the various approaches or tests which have evolved to determine liability.

 

Outline the concept of vicarious liability in tort and discuss the relevance of this principle today.

The first point to establish when considering the matter of vicarious liability is that it is not a tort as such. It is a method or principle by which the courts have determined that someone else should be held liable for the wrongdoings of others. The wrongdoer is known as the tortfeaser.

Many might argue that the principle is out of date and does not relate to present day legal concepts. They may be right as the principle has its origins in conceptions about capability stemming from control under the master and servant laws which have long been modernised. The fairness of the principle is not necessarily so readily seen nowadays as it once may have been.

The main thrust of the principle is that one party (the employer) is held liable for the torts of another (the employee). It is strange that anyone other than the perpetrator should be held liable so we need to see how this situation has come about.

 

The courts, as usual, have imposed rules as to when such vicarious liability arises. The main rules are that the tortfeaser must be an employee and that the tort must occur in the course of employment.

 

In many cases the nature of the relationship between the employer and employee will be readily established but on other occasions the position may be less clear. To cover these situations the courts have developed a series of tests to help them determine whether the wrongdoer is an employee. These basic tests consist of the control test, the integration test and the economic reality or multiple test. It may be worth examining these tests and how they may help.

 

The control test was the original test and as we have already noted it is not surprising that this test has its origins in master and servant law. The test examines the nature and extent of the control of the 'employee'. In the case of Performing Rights Society v Mitchell & Booker Ltd (1924)the defendants were sued for the breach of copyright by a jazz band. The defendant owned a dance-hall and had agreed in writing for a band to play at the hall as long as it did not infringe any copyright in the music it chose to perform. Unfortunately the band chose to play some music but did not have the plaintiff's permission. The plaintiff decided to sue the owners of the dance hall looking to hold them responsible for the actions of the band. However the defendant’s liability depended on it being proved that the band were employed by them. The court looked at the facts that regular hours where worked each day by the band, there was a fixed period of employment, the band had been told where they should work, and they had exclusivity of service, there was also a right to dismiss the band for the breach of any fair instructions or requirement. In short the court looked at the 'nature and degree of detailed control over the person alleged to be a servant' and the band was held to be an employee.

 

Practical considerations come into play and Lord Thankerton in Short v J & W Henderson Ltd (1946) had, by this stage, identified four important factors."(a) The master's power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master's right to control the method of doing the work; and (d) the master's right of suspension or dismissal." The test did not always produce clear results but at times was found to be sufficiently useful to show that the principle could be extended to workers contracted or 'borrowed' as in Mersey Docks & Harbour Board v Coggins and Griffiths (1947). In recent times the test was found to be appropriate in the case of the hirer who was able to give detailed instructions as opposed to the employer Hawley v Luminar Leisure Plc (2005).

Lord Denning, not one for shying away from a challenge, came up with the integration or organisation test. Lord Denning put forward his ideas in Stevenson, Jordan and Harrison Ltd v MacDonald and Evans (1952).

Lord Denning proposed that 'It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.' The test found favour and was followed in Whittaker v Minister of Pensions and National Insurance (1967).

The third and most modern of the tests is the economic reality or multiple test as put forward by Mr J Mackenna in Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968). According to Mackenna J three conditions must be satisfied if the wrongdoer is to be properly considered an employee:

  • The employee has agreed to provide skill in return for a wage;

  • A degree of control is exercised by the employer;

  • other terms of the contract are consistent with its being a contract of service.

As part of the court's considerations they would look at such factors as Tax and National Insurance liability as statute places specific burdens on both employer and employee, as well as ownership of tools which might suggest that the person concerned was self employed and not employed as such.

We ought now turn to the question of whether the tort falls within the course of employment. If it does then, under the rule, the employer would be found vicariously liable for the wrongful acts of the employee and if the acts fell outside the course of employment then the employer would not be liable.

Liability will follow if it can be shown that the wrongful acts were authorised or if authorised acts are carried out in a wrongful way. Examples of where the employee has acted in an unauthorised way include cases where the employee has ignored an express or direct prohibition such as in Limpus v London General Omnibus Co 1862. This concerned the bus drivers involvement in competitive driving and racing and blocking buses from a rival company, thus going directly against orders and resulting in injury to a third party. The defendants (the bus company) were liable. The driver was acting within the course of his employment at the time of the incident. It made no difference that his act had been forbidden.

Careless acts may also result in vicarious liability as in the leading case of Century Insurance v Northern Ireland Road Transport Board (1942) when a delivery driver caused an explosion by lighting a cigarette while refuelling a petrol tanker.

Vicarious liability was applied in the infamous case of Rose v Plenty 1976 which involved a milkman who, against company orders, took a 13 year old boy with him on his round. The boy was injured due to the milkman's negligent driving. The boy, who sued both the milkman and the dairy, initially lost his case but the matter came before the Court of Appeal when Lord Scarman found a crucial factor to be that the boy was actually helping in an unauthorised way by helping deliver milk.

One question which has exercised the minds of the courts is what happens in the event of an accident when an employee is travelling to and from work? The usual rule is that this would not normally be thought to be within the course of employment unless the travel is particularly closely related to the employee's work and therefore is outside the rule.

In Smith v Stages (1989), an employee was involved in a road accident whilst travelling back to his normal place of employment. He had been working elsewhere. This was held to be within the course of his employment. Lord Lowry considered a decisive factor being that he was paid a normal working day pay for his day of travel.

The courts have held that vicarious liability does not arise in situations where the wrongful acts are not within the course of employment. Activities which are clearly outside the scope of the employment cannot give rise to vicarious liability as in Beard v London General Omnibus (1900),in this instancethe plaintiff was run over by a bus belonging to the defendants. Beard brought an action against the company for the negligence of the person who was driving the bus. The person driving the bus at the time was not employed as a driver – he was employed as a bus conductor. The bus company were found to be not liable due to the fact that a conductor, whose job it was to collect fares, had been driving the bus and this was considered completely outside the scope of his job.

An employer will not be found liable for the acts of an employee who goes off on a 'frolic of his own' as in Hilton v Thomas Burton (Rhodes) Ltd (1961). Hilton went for a drink one lunchtime with some of his colleagues. They drove to the pub in the work van belonging to the company they worked for. On leaving the pub the van crashed due to the negligence of the driver and Hilton, one of the passengers, was killed. Hilton's wife sued the company on the basis that they were vicariously liable for the van driver's negligence. The employer was held not liable as Hilton and his colleagues had been on a “frolic of their own" at the time of the accident and were not acting in the course of their employment.

Likewise the courts have found no difficulty in denying liability in cases of employees giving unauthorised lifts as in Twine v Bean's ExpressLtd (1946) where the driver of a vehicle, contrary to express orders from his employer, gave the claimant a lift.

Having considered the nature of the principle of vicarious liability we now turn to the issue of whether such a concept still has a place in our legal system. We found out that the beginnings of liability flowed from the notion that an employer, as he has control of his employees, ought to accept responsibility for their actions including their wrongdoings. We have also reflected on the fact that ordinarily the law of tort is concerned with culpability and fault but that the courts sought to justify making the employer responsible for the torts of his employee. These justifications and legal arguments needed to be considered further.

The law of master and servant may have led to the view that as the employer clearly gained from the work so he should be responsible. One has to question whether present employment law as we understand it today could have spawned such a concept.

The notion of control is not very far away from the related idea that, as the employer is responsible for having the work carried out, it is only right and proper that they are responsible for ensuring that the work is carried out safely as they should exercise control over their employees.

The law dates back to times when workers pay would not have been significant and it is questionable whether ordinary workers, if sued alone, would have had sufficient means to meet compensation claims. It has for some time been debatable whether it is advisable or worthwhile to sue a 'man of straw'. The same could not be said of the many wealthy industrialists who employed these workers at the time. Surely, bearing in mind the wealth that some had accumulated, it was only right that they should bear the loss rather than the employee.

With the beginnings of legislation intended to bring about a fairer system came compulsory insurance schemes intended to protect third parties. Such schemes may have resulted in the payment of insurance premiums by employers but this will have facilitated the meeting of compensation claims from the proceeds of insurance claims rather than such damages having to be paid by the employers themselves.

The concept of the scope of the employment or in the course of employment may seem harsh, but the principle of vicarious liability developed when it was largely up to the employer who they appointed and to decide if training and discipline were appropriate, it seemed to follow that the employers also had a responsibility to train their employees and provide supervision. Again this may seem unfair until we consider that we were entering a brave new world of industrialisation and technology and invention where it was becoming increasingly important for work to be conducted safely using properly trained workers. If the appropriate supervision or training was not provided then it would raise the question whether it would have been right to sue individual employees or fairer to sue employers who had not properly trained or supervised their employees.

You may wonder whether some of the above justifications are fair and you may be right to do so and issues may arise as to whether it is right to apply such arguments now to our present employment law. In addition some specific questions may be raised.

As already suggested the concept contradicts basic fault principles and therefore seems at odds with other general principles intended to establish liability. What more can an employer be expected to do if they have prohibited or outlawed a method of working? Some may see this as unfair on responsible and safety minded employers.

The rules have more to do with the origins of master and servant law than other legal principles of finding who is at fault. Therefore the rules and mechanisms can be seen as artificial and inconsistent. This view may be further exacerbated when trying to relate the concept to our modern employment law which has developed and grown as a result of Parliament's involvement in the form of statutory provision and the development of common law principles.

The rules, on occasions, seem to encourage legal argument and defences for instance where an employer can escape liability if it can be shown that the employee was out 'on a frolic of his own'. In practice it is difficult to see the fairness of such cases when they are compared with those where the employee still embarked upon a course of action, even thought the conduct had been prohibited by his employer, and this still resulted in an employer being found liable.

On balance, there seems to be arguments for and against vicarious liability, but having said that, one wonders whether it can be argued that there is a manifest wrong that requires the attention of Parliament or law reform bodies. The law is concerned with the identification of someone who can be held to account, and so long as vicarious liability allows this to happen and therefore provide a remedy, it is difficult to see how it can be done away with even with its faults.

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Tort; Tortfeasor; Vicarious Liability; Control Test; Economic Reality Or Multiple Test; Integration Or Organisation Test:

 

  1. In order to advise Freddy Hobart Ltd, one would have to explore the rules of vicarious liability of an employer and case law which may apply. Vicarious liability arises where there is a relationship between the tortfeasor and the party who becomes vicariously liable which justifies giving the latter responsibility for the acts of the former[1]. This means that a victim of a tort, in the present scenario being Flora, can claim compensation from the employee’s company if it is proven that the tort occurred as a result of the employee’s fault when he was in the course of his employment.
In order for Freddy Hobart Ltd to be vicariously liable for Jameel’s negligence, three requirements will need to be satisfied. First, there must be an employer/employee relationship between Freddy Hobart Ltd and Jameel. Employers are only vicariously liable for the acts of their employees as is shown in the case of Ready Mixed Concrete v Minister of Pensions[2]; an employer is not liable for the act of its independent contractors as is illustrated in the case of Honeywill and Stein v Larkin[3]. This requirement has clearly been met since it is mentioned that Jameel was under a contract with Freddy Hobart Ltd with all the rights and duties of a full employee. Second, it must be established that Jameel has committed a tort. We are told that the lorry crashed because of Jameel’s negligent behaviour. So it would appear that this requirement has also been met. The third requirement is more complex. It must be established that Jameel’s negligence was engaged in while he was in the course of his employment with Freddy Hobart Ltd. If this requirement is not met, then Freddy Hobart Ltd will not be vicariously liable but Jameel will be personally liable in respect of Flora as was shown in Beard v London General Omnibus Co[4]. There are two tests used by the court to determine if the third requirement has been met; namely, the Salmond test as established in Salmond’s Law of Torts[5] and the ‘close connection’ test as established in Lister v Hesley Hall Ltd[6]. Where the tort is committed intentionally, the latter test is preferable. However as we are dealing with negligence, we will consider both tests. Under the Salmond test, the third requirement will be met if the tortious act was either a wrongful act authorised by the employer or a wrongful and unauthorised mode of doing some act authorised by the employer[7]. Jameel’s act of negligence will not come within the first part of the Salmond test but it could come within the second part. He is authorised to drive the lorry to make deliveries. The problem which arises is that instead of being accompanied by another company driver, he took his niece, Flora with him. He moreover drove for seven hours without a break despite having company regulations which clearly states that company drivers should alternate driving shifts of no more than four hours each. In Century Insurance Co v Northern Ireland Road Transport Board[8], it was held that the fact that an employee was doing his job negligently does not necessarily take him outside the course of his employment. Again the court will examine all the circumstances. As noted in Cooke, an employer may be vicariously liable for an act if the prohibition applies to the way that the job is done, rather than the scope of the job itself. Similarly in the present scenario, company regulations only mentioned about the way long haul deliveries is to be carried out. The scope of the job was still the same – making deliveries. In Limpus v London General Omnibus[9], the court stated that a bus driver is within the scope of his employment when he races other buses even if he is strictly prohibited from doing so. However in the present scenario, Jameel was not just going about his work. He also planned to visit Scotland with his niece. An important question that arises here is whether or not this act would amount to a ‘frolic’ of Jameel’s that takes him outside the course of his employment. This will be heavily dependent upon the facts of the case. In Storey v Ashton[10], an employer was not held liable when the driver completed his work and then went to visit a relative. This was a new journey which had nothing to do with the employment[11]. Other cases involved in frolics are Harvey v RG O’Dell[12] , Hilton v Thomas Burton Ltd[13]. Similarly, if we apply this principle to our current scenario, it is probable that the court regards Jameel’s journey with his niece as being an independent one outside his course of employment. If such is the case, then Freddy Hobart Ltd is very likely to escape liability in respect of Flora. The second limb of the test has been rejected by the House of Lords in Lister. Modern case law suggests that the second part of the Salmond test may need to be modified to a close connection test. The close connection test asks whether or not the tort was so closely connected with the employee’s employment, that it would be fair and just to hold the employer vicariously liable. Again all the facts are relevant. If Jameel’s contract of work provides that the lorry is only to be used for work-related business, then one might argue that he was not acting within the course of his employment. Finally the court might feel that there was no sufficient closeness between the employment in question and the tort in order to impose liability on Freddy Hobart Ltd.
  1. If Jameel had been accompanied by Barney, then Freddy Hobart Ltd could be vicariously liable for Jameel’s negligence since unlike with Flora, there would have been no ‘frolic’ this time. He would have been acting in the course of his employment when the tort occurred and therefore the three requirements for vicarious liability would have been satisfied. As noted in Cooke, an employer may be vicariously liable for the negligence of an employee which leads to the claimant employee being injured. The employer’s liability here is strict. Unlike the case with Flora, Freddy Hobart Ltd also owes a personal duty of care towards Barney since he is their employee. In Wilsons and Clyde Coal[14], the court stated that this duty is ‘non-delegable’- the employer must provide a competent staff, adequate material, a proper system and effective supervision. In the present scenario, we are not given sufficient information on the experience of Jameel as a driver. Freddy Hobart Ltd may be personally liable in respect of Barney if Jameel is judged as not being sufficiently experienced and Barney is injured as a result. However, one might also argue that since Barney is a fellow driver, should he not have taken the wheel after the four hours. In that situation, it is up to the court to decide whether it is fair and just to impose liability on Freddy Hobart Ltd since it was partly because of Barney’s fault that the tort occurred.

[1] Catherine Elliot and Frances Quinn, Tort Law (9th edition, Pearson Education, 2013) p 377 [2]Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 [3]Honeywill and Stein v Larkin [1934] 1 KB 191 [4]Beard v London General Omnibus Company [1900] 2 QB 53 [5] J Salmond, Law of Torts, (Sweet and Maxwell, 1907) p 83 [6]Lister v Hesley Hall Ltd [2002] 1 AC 215 [7] John Cooke, Law of Tort (11th edition, Pearson, 2013) p 536 [8]Century Insurance Co v Northern Ireland Road Transport Board [1942] AC 509 [9]Limpus v London General Omnibus Co (1862) 1 H&C 526 [10]Storey v Ashton (1869) LR 4 QB 476 [11] Ibid p 537 [12]Harvey v RG O’Dell [1958] 2 QB 78 [13] Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 WLR 705 [14]

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