UNIVERSITY OF THE WEST INDIES

MONA CAMPUS

FACULTY OF LAW

LAW OF TORTS II
LA 20A (LAW2010)

WORKSHEET 1
2018-2019

VICARIOUS LIABILITY

A person will be held liable for torts committed by him, as well as those torts committed by a
person acting or purporting to act on his behalf, subject to certain conditions. Where the tort has
been either expressly authorized or subsequently ratified, the liability of the person who
authorizes or ratifies it is clear.

Arguably “the doctrine of vicarious liability is founded more on social policy rather than fault”
per Lord Pearce Imperial Chemical Industries Limited v. Shatwell (1965)AC 656. Consider the
“Deep Pocket Theory” per Lord Brougham in Duncan v. Finlater (1839) 7 ER 934.

1. Servants and Independent Contractors

A master/employer may be held liable for torts committed by his servant/employee or

independent contractor. However the principles of liability differ depending on whether the
wrongdoer is in fact a servant or an independent contractor. It is important to make the
distinction between these two classes of workers, as a master/employer will generally only be
liable for torts committed by his servant/employee Yewens v. Noakes (1880) 6 QB 530, NOT his
independent contractors Quarman v. Burnett (1835-42) All ER 250.

Three pronged approach:

 What is the nature of the relationship between the employer and the person employed?
 Was a tort indeed committed by the employee? Young v. Boxand Co Limited (1951)
1 TLR 789
 Was the tort committed during the course of the employment?

Several legal tests have been coined over the years.

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“The Control Test”

See Lord Thankerton in Short v. J & W Henderson Limited ( (1946) 62 TLR 427, Collins v.
Hertfordshire CC (1947) KB 598, Cassidy v. Ministry of Health (1951) 2 KB 343 and compare
Lord Parker CJ in Morren v. Swinton (1965) 1 WLR 576.

“The Integral Part of the Business Test”

See Lord Denning LJ in Stevenson, Jordan and Harrison Limited v. Macdonald (1952) 1 TLR
101, MacKenna J in Ready Mixed Concrete(South East) Limited v. Minister of Pensions and
National Insurance (1968) QB 497 and contrast Market Investigations Ltd v. Minister of Social
Security ( 1969) 2QB 173 and Harris v. Hall (1997) 34 JLR 190.

Perhaps the better view is that no single test capable of application in all cases has yet been
coined. Each relationship must be viewed as a whole and evaluated on a case by case basis. In a
case of doubt, no single element in the relationship can be regarded as conclusive nor can an
exhaustive list of relevant considerations be compiled. Significant considerations that have been
taken into account are:

 The degree of control over the person’s work

 The worker’s connection with the business
 The terms of the agreement between the parties; verbal and/or in writing
 The nature and regularity of the work
 The method and payment of wages
 The worker provides his own equipment
 The person performing the services hires his own helpers
 The degree of financial risk, if any, that the worker takes

2. Lending / Borrowed Servants

a) Casual Workers

Consider whether the employer would be vicariously liable for independent contractors.
See O’Kelly v Trust House Forte (1983) ICR 728 (Kidner 237)

b) Borrowed Servants

Where employer A lends or subcontracts an employee to another employer B, the

employee is said to be a “borrowed” servant. Here the general employer A shall still be
held vicariously liable and the burden of discharging his responsibility is a heavy one. See
the leading case of Mersy Docks and Harbour Board v Coggins and Griffith (Liverpool)
(1947) AC 1.
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 See also Texaco Trinidad Inc v Halliburton Tucker ltd (1975) CA T & T; Joseph v
Hepburn (1992) Sup. Ct Bahamas.

Note that the special employer B may also be held liable. This principle of dual vicarious
liability was considered in Viasystems v Thermal Transfer (2005) 4 All ER 1181 and
Hawley v Luminar Leisure Limited et al (2006) EWCA Civ 18.

c) Improper Delegation

Where a servant improperly delegates his duties to an unqualified third party, his
employer will usually not be liable for any negligence of the third party. However, the
employer will be liable for the negligence of the servant in allowing an unqualified person
to act. See Ilkiw v Samuels (1963) I WLR 991; Persaud v Verbeke (1971) LRBG 1, High
Ct Guyana; Brown v Brown (1972) 12 JLR 883.

2. The Scope of Employment

A master will not be vicariously liable for his servant’s tort unless the act was done
during the course of his employment or in the “scope of his employment” (Winfield &
Jolowicz). Arguably, the cases do not reveal general principles to be applied when
determining whether an employee acted in the course of employment. Much depends on
policy considerations and the particular facts of the case. Per Lord Pearce in Imperial
Industries Ltd v Shatwell (1965) AC 656 “the doctrine of vicarious liability has not grown
from any very clear, logical or legal principle but from social convenience and rough
justice”.

a) An unauthorized manner of doing something authorized by the master

The particular act which leads to damage, as well as all the surrounding circumstances,
will be taken into account. See Century Insurance v Northern Ireland Road Transport
Board (1942) AC 509; Beard v London General Omnibus Co. (1900) 2QB 530; Twine v
Beans Express (1946) 1 All ER 202; Rose v Plenty (1976) 1All ER 202. Contrast Battoo
Bros Ltd v Gittens (1975) HC T & T and Haye v Bruce (1971) 18 WIR 313. See also
Jackson v High View Estate (1997) Sup CT Jamaica, No J 283 of 1991.

b) Frolics

This is where the employee goes outside the scope of his employment. Note the locus
classicus Joel v Morrison (1834) 172 1338 per Parke B. See also Dunkley v Howell
(1975) 24 WIR 293.

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 Where the tort committed by the employee was an act expressly prohibited by the
employer, the latter may still find himself liable. A prohibition which limits the
employee’s conduct within the scope of the employment will not exculpate the
employer. To relieve the employer of liability, the prohibition must be outside the
scope of the employment altogether. Limpus v London General Omnibus Co. (1862)
158 ER 993; Canadian Pacific Railway Co v Lockhart (1942) AC 591; Ilkiw v
Samuels (1963) I WLR 991; Clarke v William Brewer Co Ltd (1983)Sup Ct.
Bahamas, No 27 of 1980.

c) The “Lister” Test / “Close Connection” Test

The “Lister” Test is a departure from the traditional vicarious liability principle that
an employer shall be liable for the unlawful acts of his employees where their
employees’ acts are authorized by him, or where the employees’ unauthorized acts
are so connected with the authorised acts that they may be regarded as being within
the scope of employment.

The proper test to be applied now is “the degree of connection between the act and
the employment that it would be fair and just to hold the employer liable”. See Lord
Steyn in Lister v Hesley Hall (2002) 1 AC 215. Contrast Lord Nicholls in Dubai
Aluminum Co Ltd v Salaam (2003) 2 AC 366; Mattis v Pollack (2003) 1WLR 2158.
See also AG v Reid (1994) CT of App Jamaica, No 107 of 1996; Bernard v AG of
Jamaica (2005) IRLR 398 (PC. Jam).

Consider also whether the employee acted in the interest of protecting his employer’s
property or business. See Polland v Parr (1927) 1 KB 236; Warren v Henleys Ltd
(1948) 2 All ER 935; Herrnicht v Green (1989) Bahamas No 737 of 1985; Sudan v
Carter (1992) High Ct T & T. Contrast Deatons v Flew 1949) 79 CLR 370 and
Petterson v Royal Oak Hotel (1948) NLLR 136.

d) Time and Place

The time and place of the servants’ careless act are two key factors that the court will
take into account when determining whether the tort committed by the servant took
place during the course of his employment. See Ruddiman and Co. v Smith (1889)
60 LT 708; Staton v National Coal Board (1957) 1 WLR 893; Smith v Stages (1989)
1 All ER 833; AG of the British Virgin Islands v Hartwell [2004] 1WLR 1273.
Contrast Mattis v Pollack [2003] 1 WLR 2158.

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 e) Criminal Acts of the Employee

The employer may be liable in tort for the consequences of crimes committed by his
employees. See Llyod v Grace, Smith & Co. (1912) AC 716; Morris v Martin & Sons
Ltd (1966) 1 QB 716; Keppel Bus Co. Ltd v Ahmad (1974) 2 All ER 700.

3. Recent Developments

a) Employee’s breach of statutory duty

The House of Lords has now held that an employer may be vicariously liable for its
employee’s breach of statutory duty; even where such a duty is not cast on the
employer. See Majrowski v Guy’s & St. Thomas’s NHS Trust (2006) UKHL 34.

b) Employer’s responsibility for “risky enterprise”

John Doe v Bennett (2004) S.C.J 17, Sup Ct. Canada per Chief Justice McLachlin
“Vicarious liability is based on the rationale that the person who puts a risky
enterprise into the community may fairly be held responsible when those risks emerge
and cause loss or injury to members of the public. Effective compensation is the goal.
Deterrence is also a consideration. The hope is that holding the employer or principal
liable will encourage such persons to take steps to reduce the risk of harm in the
future.” Contrast Bazley v Curry (1999) 2 SCR 534; MAGA v Trustees of the
Birmingham Archdiocese of the Roman Catholic Church (2010) EWCA Civ 256;
Bernard v Attorney General of Jamaica [2004] UKPC 47; N v Chief Constable of
Merseyside [2006] EWHC 3041 (QB); JGE v The Trustees of the Portsmouth Roman
Catholic Diocesan Trust [2012] EWCA Civ 938; Various Claimants v Institute of the
Brothers of the Christian Schools [2012] 3 WLR 1319.

c) Vehicle owners and casual agents

Extended vicarious liability has been developed on public policy grounds to treat with
the liability of vehicle owners for the negligence of “casual agents” who are not their
servants or employees. Casual agents include the owner’s wife, children or other
acquaintance who drives the owner’s vehicle with his consent, on the owner’s
business or for the owner’s purposes. See Barnard v Sully (1939) 47 TLR 557;
Matheson v Soltau [1933] JLR72. Distinguish Ormrod v Crosville Motors Services
Ltd [1953] 2 All ER 753 and Morgans v Launchbury [1973] AC 127.

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 Note Caribbean application in Avis Rent-A-Car v Maitland (1980) 32 WIR 294;
Rambarran v Gurrucharran [1970] 1All ER759; distinguish Campbell v Flash (2004)
Supreme Court, Jamaica No.CLC 471 of 1997 [Carilaw JM 2004 SC 58], Wright v
Morrison (2011) Court of Appeal Jamaica, Civ App No 39 of 2008 [Carilaw JM 2011
CA 39] and Williams v Rahim (2013) Court of Appeal Trinidad and Tobago, Civ App
220 of 2009

Reading

 WHITE, Mervyn “Supreme Court of Canada Brings Clarity to Vicarious Liability of

Churches in Canada”(2005) Carter & Associates.

 LEVINSON, Justin “Vicarious Liability for Intentional Torts” JPI Law, 2005, 4, Pages
304-307.

 MORGAN, Phillip “Distorting Vicarious Liability” Modern Law Review, 2011,Vol 74,
Issue 6, Pages 932-946.

 GILIKER, Paula “Lister revisited: Vicarious Liability, Distributive Justice and the Course
of Employment”(2010) LQR 521.

 McIVOR, Claire “Vicarious Liabiltiy and Child Abuse” (2013) PN 62

 MORGAN, Phillip “Recasting Vicarious Liability”(2012) CLJ 615

 McKendrick, Ewan, “Vicarious Liability and Independent Contractors – A re-

examination”, The Modern Law Review 53:6 November 1990 pp 770-784

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