In the course of employment

An employer will only be responsible for torts committed by their employees if those
torts are committed in the course of the employment. Employer will be liable not
only where they have permitted the employee to do the wrongful act, but also in
some cases where they have not given such permission. In Century Insurance v
Northern Ireland Road Transport, the defendants employee, a petrol tanker
driver, was unloading petrol, when he struck a match to light a cigarette and
dropped it onto the ground, which caused an explosion, damaging the claimants
property. The defendants were found to be vicariously liable for his negligence, on
the basis that it was in the course of his employment, even if the match was struck
for his own purposes. In Bayler v Manchester Railway Co, a railway porter
thought the claimant was on the wrong train and, meaning to be helpful, pulled him
off it by force. The defendants were held vicariously liable because the porter was
trying to do what he was authorised to do, in helping a passenger to get to his
destination, even though he was doing it so badly as to have completely the
opposite effect.
Express prohibition
An employer who expressly prohibits an act will not be liable if an employee
commits that act. However, the employer may be liable if the prohibition can be
regarded as applying to the way in which the job is done, rather than to the scope of
the job itself. In Limpus v London General Omnibus Co a bus driver had been
given written instructions not to race with or obstruct other buses, which he
disobeyed. The court held that he was doing an act which he was authorised to do:
driving a bus in such a way as to promote the defendants business, which meant
that he was within the course of his employment, even thought he was doing the
job quite improperly and had been prohibited. The defendants were vicariously
liable. In Twine v Beans Express Ltd, the driver had been told not to give his
lifts to anyone who was not within a group of authorised passengers, and there was
a notice on the side of the vehicle stating who could be carried. The deceased was
not among them. The defendants were held not to be vicariously liable because the
driver was doing an unauthorized act and was therefore outside the course of his
employment. By contrast, in Rose v Plenty, the defendants were held vicariously
liable because the prohibition did not affect the job which the milkman had to do,
only the way in which he should do it. He was doing his allocated job of delivering
the milk, even though in a way prohibited by his employers (paying a child to help
him deliver the milk). The majority of the Court of Appeal pointed to the fact that in
Twine the lift was not given for a purpose which would benefit the employer, but in
Rose the boy was helping with deliveries, and therefore furthering the employers
business.
Criminal acts

The cases referred to in vicarious liability for criminal acts concern situations where
an employee has done something which is both a crime and a tort. In Lloyd v
Grace, Smith & Co, a solicitors clerk defrauded a client out of property, and his
employers were found vicariously liable, but largely because it was their lack of
supervision over his work that allowed him to commit the fraud. By contrast, in
Warren v Henleys Ltd, the managers of a petrol station were held not to be
vicariously liable for the actions of an employee who punched a customer on the
nose during a row; the court held that it was an act of personal vengeance and not
part of the course of his employment. In Lister v Hesley Hall, a legal principle
was established such that vicarious liability may be imposed for illegal acts, where
the act was so closely connected with the employees job as to make it fair to
impose vicarious liability. To answer this, it was necessary to look at the task an
employer had delegated to their employee. In this case, the school had the job of
looking after the boys in its case, and it has delegated part of this task to the
warden. The sexual abuse had been inextricably interwoven with his performing
this task, since it was carried out on the defendants time, on their premises. The
close link between the wardens work and the abuse made it fair, in the House of
Lords opinion, to make his employers vicariously liable for the abuse. Lister was
followed, and further explained in Dubai Aluminium Co Ltd V Salaam, where the
House of Lords confirmed that the correct test was whether there was a close and
direct connection between the employees duties and the criminal act: The
wrongful conduct must be so closely connection with acts theemployee was
authorised to do thatthe wrongful conduct may fairly and properly be regarded as
done while acting on the ordinary course ofthe employees employment. In
Mattis v Pollock, the Court of Appeal stated that vicarious liability for an act of
violence was more likely to be found in cases where using violence was expected
part of the employees job than where it was not. In MAGA v Trustees of the
Birmingham Archdiocese of the Roman Catholic Church, which involved the
acts of child abuse committed by a Roman Catholic Priest even though the abused
boy was not involved with the church in any way. The church therefore argued that
the abuse could not be said to be so closely connected with the priests work and
even though Father Clonans position as a priest gave him the opportunity to abuse
the claimant, it was made clear in Lister that there had to be a closer connection
than mere opportunity. The Court of Appeal took a different view and held a
number of factors which, taken together, meant that the abuse passed the Lister
test, and the church was vicariously liable. These factors included the fact that he
was usually dressed in priests robes; had been a special responsibility for youth
work; that part of his job was to spread the Catholic faith; and the abuse itself had
frequently happened on church premises.
Frolics of their own
An employer will not be responsible for acts done by employees which have nothing
to do with their employment (frolics of their own). In Heasmans v Clarity

Cleaning Co, the Court of Appeal held that the unauthorised use of the claimants
telephone by a cleaner to make private long-distance calls was not connected with
cleaning it, and could not be regarded as the cleaning of it in an unauthorised
manner, so the defendants were held not vicariously liable. In Hilton v Thomas
Burton (Rhodes) Ltd, four workmen decided to stop and go to a cafe 7 miles away
for tea after half a days work. On the way back, one driver negligently crashed the
van killing one of them. The employer was held not to be vicariously responsible, as
the men were not acting in the course of their employment, but on a frolic of their
own. Employees travelling within work hours are more likely to be found to be
acting in the course of employment. In Whatman v Pearson, an employee was
not to go home for lunch, nevertheless did so, which was a quarter of an hour away
from his workplace, taking together the employer's horse, which broke free and
damaged the claimants property. The employee was found to be acting in the
course of his employment, as he was still within the general scope of his job, which
included guarding the horse and cart all day. By contrast, in Storey v Ashton,
some employees had finished delivering wine and were on their way back after their
official work hours were over. They decided to take a detour to visit a relation of
one of the employees and while on the way there they negligently ran over the
claimant. His attempt to sue their employer failed as they were treated as being on
a new and independent journey from their work trip at the time of the accident. In
Mattis v Pollock, an incident which happened away from the employers premises,
and after the employee had gone home and armed himself, could still be considered
in the course of his employment because it was the culmination of a series of earlier
incidents that did take place at the employers premises and in the performance of
his duties. It was also still within his working hours. In Majrowski v Guys and St
Thomas NHS Trust, it was held that an employer can also be liable for an
employees breach of a statutory duty, even if the statute appears to impose
liability only on individuals.

Employers indemnity
Because vicarious liability makes employer and employee joint tortfeasors, each
fully liable to the claimant, an employer who is sued on the basis of vicarious
liability is entitled to sue the employee in turn, and recover some or all of the
damages paid for the employees tort. This is called an indemnity, and the
employers entitlement to sue may derive either from the provisions of the Civil
Liability (Contribution) Act 1978, or in common law under the principle in Lister v
Romford Ice and Cold Storage. In this case, a lorry driver drove negligently in
the course of his employment, and ran over his father, who was also the companys
employee. The damages were paid by the employers insurance. The employer
then exercised its right to sue the driver for an indemnity and it was decided that
the employer was entitled to damages equivalent to the amount which it had had to
pay to the father.

Independent contractors
An employer is generally not liable for the acts of an independent contractor.
However, there are circumstance in which the acts of an independent contractor
may give rise to the employer having primary liability because the employer was
breaching their own duty to the claimant. The employer will then be liable as a joint
tortfeasor with the independent contractor. The type of duty that the employer
must have breached is described as a non-delegable duty. An employer can also be
liable for the torts committed by an independent contractor where they have
delegated a delegable duty but failed to take reasonable steps to find a competent
person to do the work, or make sure it was done properly. Where there is potential
liability for something done by an independent contractor, the employer will only be
liable if the act was part of the work the contractor was engaged to do. In Padbury
v Holliday and Greenwood Ltd, a sub-contractor installing some windows left a
tool on a window sill. It blew off, and hit the plaintiff, who now sought to recover
damages from the main contractor. It was held that this was an act of collateral
negligence by an employee of sub-contractors, and the main contractors were not
responsible.