Vicarious Liability

Lecture by: Daniel Gan LL.B(London).,Certificate in

Legal Practice(CLP)(Malaysia)
 Introduction

An employer is responsible for damage caused by

torts of his employees acting in his course of
employment
 Introduction

It is a form of strict liability because it arises from an

employer-employee relationship(master-servant
relationship) without any reference to the fault of the
employer
 Introduction

It is not not an independent tort per se. It is normally

considered as secondary liability
 Why VL is imposed on
employers?
• Solvent partner - Professor William

• Social Convenience and justice - Lord Pearce in ICI

v Shatwell

• Employer benefits from the act of employee

• Employer will more likely to buy insurance to

protect their interest
 Conditions

1) The tortfeasor must be an employee of the

employer (master)

2) The employee must commit a tort

3) Tort committed in the course of employment

 The tortfeasor must be an
employee of the employer

There must exist a contract of service.

Contract of service must be distinguished from a

contract for service
 The tortfeasor must be an
employee of the employer

Who is an employee?

Ready Mixed Concrete Ltd v Minister of Pensions -

Mackenna J
 The tortfeasor must be an
employee of the employer
• The employee agrees to provide his work and skill
in return for a wage or remuneration

• The employee agrees expressly/impliedly to be

directed as to the mode of performance of such a
degree as to make the other his employer

• The other provisions of the contract are consistent

with it being contract of service
 The tortfeasor must be an
employee of the employer
Special rules apply for these categories:

Cassidy v Minister of Health - hospital liable for

actions of visiting consultants

Section 99 Police Act 1996- Chief constable liable for

the torts committed by the constables
 The tortfeasor must be an
employee of the employer
Specific issues:

Lending of servants

Mersey Docks & Harbour Board v Coggins & Griffith -HOLs

a)Who’s the paymaster, who can dismiss, how long the alternative
service last

b)Who is entitled to give orders as to how the word should be done. It

is not enough that the task to be performed is under the control of the
temporary employer, he must have also control the method of
performing it
 The tortfeasor must be an
employee of the employer
Viasystems(Tyneside) Ltd v Thermal
Transfer(Northern) Ltd (2005) - COA

- the court see no reasons why employers should not

be liable

-Liability between the two employers can be split

50:50
 The tortfeasor must be an
employee of the employer

Viasystems(Tyneside) Ltd v Thermal

Transfer(Northern) Ltd (2005) - COA

Question whether the employees is so much part of

the work/business/organisation of both employers
that it is just to make both employers liable
 The tortfeasor must be an
employee of the employer
Hawley v Luminar Leisure Ltd (2006)

-Which employer is liable depends very much on the facts of each

case.

-The burden of showing that the responsibility has shifted to a

temporary employer rests on the general employer is a heavy one.

-The enquiry should focus on the nature of the job and whose duty
was it to prevent it

-The question of control is not wholly determinative but remains at

the heart of the test to be applied
 The tortfeasor must be an
employee of the employer
Casual Delegation

Ormrod v Crossville Motor Services Ltd

Facts: A friend drove the owners care from Birkenhead to

Monte Carlo, carrying suitcase of the owner with him, so
that both of them can go on a holiday together with that
car in Switzerland

Held: The owner is ‘liable if the driver is his agent, that is

to say if the driver is, with the owner’s consent, driving the
car on the owner’s business/ for the owner’s purposes
 The tortfeasor must be an
employee of the employer
Casual Delegation

Morgans v Lauchbury - HOLs

Proposition in Ormrod rejected.

Lord Wilberforce- In order to fix vicariously liability on

the owner of a car in such a case, it must be shown
that the driver was using it for the owner’s purpose,
under a delegation of task/duty
The employee must
commit a tort
 The employee must commit
a tort

Imperial Chemicals Industries v Shatwell - HOLs

Vicarious Liability only arises where the employee

commits a tort
Tort must be committed in
the course of
employment
 Tort must be committed in
the course of employment

Salmond & Heuston

‘A master is not responsible for the wrongful act done

by his servant unless it is done in the course of
employment’
 Tort must be committed in
the course of employment
Salmond & Heuston

It will be in the course of employment if

a) A wrongful act authorised by the master

OR

b) A wrongful & unauthorised mode of doing some

act authorised by the master
 Tort must be committed in
the course of employment

Negligent & Careless Act

Century Insurance v Northern Ireland Road Transport

Employee negligent threw the match that he used to

light up a cigarette on the floor while transferring the
petrol from the lorry to a tank
 Tort must be committed in
the course of employment

Prohibition by an employer

Crucial to distinguish between prohibition on the

mode of doing something & prohibition of the act
itself
 Tort must be committed in
the course of employment
Prohibition by an employer

Limpus v London General Omnibus

-Driver of defendant’s drove across and in front of the

claimant’s bus causing it to overturn

-Defendant had expressly forbidden the act of racing

and obstructing of other omnibuses

-Defendant liable
 Tort must be committed in
the course of employment
Prohibition by an employer

Conway v George Wimpey

-Defendant company had instituted a bus service for their own employees

-Bus driver forbidden from giving lifts to anyone except their own employees

-It was held that the bus driver’s act falls outside his scope of employment
when he gave lifts to those that are not their own employees

-It is not only the method of performing the act that was wrong, the act itself
was wrong
 Tort must be committed in
the course of employment
Prohibition by an employer

Twine v Bean’s Express

- A driver engaged to drive the defendant’s van

- He was prohibited to give lifts to unauthorised persons

- Driver gave Mr Twine a lift

- The express prohibition will means that this falls outside of

the scope of employment. The driver was not acting the
court of employment
 Tort must be committed in
the course of employment

Prohibition by an employer (difference in approach)

Rose v Plenty

Where a prohibited act is performed ‘for the

employer’s business’ = within the course of
employment
 Tort must be committed in
the course of employment
Frolics & Detours

Frolics is defined as an entirely new & independent

journey which had nothing to do with the course of
employment (Storey v Ashton)

When the employee went in a frolic then employer will

not be liable e.g went to visit his brother in law when
he was supposed to deliver wine
 Tort must be committed in
the course of employment
Frolics & Detours (Issues to consider)

Smith v Stages - HOL

1. Travelling to and from work

2. Travelling between two different places of

employment

3. Break time/Lunch hours

 Tort must be committed in
the course of employment
Frolics & Detours (Issues to consider)

N v CC of Merseyside Police (2006)-

CC was not viciously liable when a police officers

commits a tortious and criminal act of rape although
he had been in uniform at that time & had use the
uniform and warrant card to persuade the victim to
trust him
Can an employer be liable for fraudulent
& criminal actions by the employee?**
Intentional wrongful acts

Lister v Hesley Hall - HOLs

The Salmond’s test does not cope ideally with the

problem of intentional wrongdoing
Intentional wrongful acts

Lister v Hesley Hall - HOLs

Facts: Defendant, a boarding house for students with

severe emotional problems. Mr Graine is to supervise
them & their daily routine. It later transpired that he
had sexually abused this children.
Intentional wrongful acts

Lister v Hesley Hall - HOLs

The crucial question is not the relationship between

the employer and the employee but the relationship
between the employer and the victim of the
employees tort
Intentional wrongful acts

Lister v Hesley Hall - HOLs

Q: Whether the tortfeasors conduct was so closely

connected with his employment that it would be fair,
just and reasonable to hold the employer’s liable?
Cases post Lister’s case
a) Dubai Aluminum v Salaam & Others(2002)

b) Mattis v Pollock (2003)

c) Majrowski v Guy’s and St Thomas’s NHS Trust(2006)

d) Brown v David Robinson,Sentry Service Co Ltd

e) JGE v The Trustees of the Portsmouth Roman Catholic Diocesan

Trust

f) The Catholic Child Welfare Society and others v Various Claimants

and the Institute of Brothers the Christian Schools and others
 Cases Post Lister

Dubai Aluminium v Salaam & Others

Solicitor dishonest- assisted in fraudulent breach of

trust in drafting documents

Partners of the law firm was liable as the act

complained of was so closely connected to the
nature of a job of a solicitor
 Cases Post Lister
Mattis v Pollock (2003)

Aggressive doorman stabbed a customer as the

night club

The nature of his job required him to look angry

His employer was held vicariously liable and this was

even so when he went home and took the knife
(Independent act)
 Cases Post Lister
Majrowski v Guy’s and St Thomas’s NHS Trust(2006)

Extension to the Lister’s test

Unlawful conduct is a risk reasonably incidental to the

employer’s business

It is fair, just and reasonable to hold the employer

vicariously liable
 Cases Post Lister

Brown v David Robinson,Sentry Service Co Ltd

Employee of a security company shot a member of

the public attempting to gain entry to a football
games

Employer held vicariously liable

 Cases Post Lister

JGE v The Trustees of the Portsmouth Roman

Catholic Diocesan Trust

Sexual abuse by the priest

Extended vicarious liability to situations of ‘akin to

employment’
 Cases Post Lister

The Catholic Child Welfare Society and others v

Various Claimants and the Institute of Brothers the
Christian Schools and others

Extend VL to unincorporated associations as well

Cases post Lister’s case
Cases post Lister’s case
Cases post Lister’s case
Cases post Lister’s case
Recent case updates:

Cox v Ministry of Justice (2016)

Supreme Court

-The harm must be wrongfully done

-It has benefited the prison

-Act done must be an integral part of business/operation

-The risk of wrongful act must be caused by the defendant assigning that
duty to the person in question
Cases post Lister’s case
Recent case updates:

A M Mohamud(Appellant) v WM Morrison Supermarkets

Supreme Court

-Close connection test is not satisfactory

Issues to consider

a) What was the nature of his job? This has to be determined broadly

b) Enough connection between acts committed and nature of his job

Cases post Lister’s case
Recent case updates:

Various claimants v Barclays Bank (2017)

-126 claimants seek to claim damages against Barclays Bank where they had been sexually
assaulted by the medical practitioner(Dr Bates) who was conducting the medical check up as part
of the application process

-The doctor died in 2009 and therefore bringing a personal claim against the doctor is not feasible

Issues to be considered:

a)Is the relationship one of employment or ‘akin to employment)?

b)Is the tort committed to closely connected with the employment and nature of employment?

The court found that the conditions to impose vicarious liability on the part of the bank was
satisfied
Employer’s Liability
 In a tortious action, An
employer can liable in 3
different ways
 Under the topic of Employers
liability, essentially the cause of
action is under Tort of Negligence
 Four non-delegable
duties of the employer
 1)Competent staff
2)Proper plan & equipment
3)Safe place of work
4)Safe system of work
 Competent staff

Employer owes a duty to select competent

employees

Hudson v Ridge Manufacturing- The D liable

because he knows of the prank & did not take any
steps to prevent it
 Competent staff
Employer owes a duty to select competent employees

Smith v Crossley Brothers

As a ‘practical joke’, two mechanics removed their

colleague’s trousers and inserted a rubber hose into
his bottom which expelled compressed air and
caused injury to the claimant

Defendant employer not liable because he could not

have foreseen the employee’s behaviour
Proper Plant & Equipment

Smith v Baker- Lord Herschell

‘…duty of the employer to provide proper appliance

& maintain them in proper condition.. as not to
subject the employees…to unnecessary risk’
Proper Plant & Equipment

Davie v New Merton Board Mill Ltd

An employer can discharge this duty by purchasing

the tools from a reputable manufacturer & defects
was not discoverable on reasonable inspections of
the tools.
Proper Plant & Equipment

Section 1(1) Employer Liability(Defective Equipment)

Act 1969

Reversed the decision of the above case

 Safe place of work

The employers are only required to take reasonable

steps to provide a safe place of work - Latimer v AEC

Wilson v Tyneside Window Cleaning Co

 Safe system of work

The employer is also under a duty to provide a safe

system at work

Hatton v Sutherland
 Q: Whether employer’s
liability extend to economic
well being of the employee?
Reid v Rush & Tomkins Group - COA
No duty on the part of the employer
to take out insurance policy nor to
advise him to take one
Thank you for your
attention!