A2 Law: Tort: Vicarious Liability Question 2

A2 law: tort: Vicarious Liability Question 2.

Vicarious liability arises when one party is responsible for the tort of another. This situation occurs frequently when an employer is held responsible for the torts committed by an employee. An employer can only be held responsible for the torts of an employee, not for an independent contractor. There are also some rules that must be satisfied. First it must be proven that the tortfeaser is an employee. The act the tortfeaser (employee) did must be tortuous or criminal. The tortuous or criminal act must have been during the course of employment. There are 3 tests to establish whether an individual is an employee or an independent contractor these are the control test, integration test and the economic reality test, which is also known as the multiple test. The control test analyses who has control over the way that the work is carried out. If the employer sets out how the work is to be done and when it is to be done by then the courts are more likely to consider the person carrying out the work as an employee. However, if it is up to the person carrying out the work how to determine how and when it should be done, then that person is more likely to be considered an independent contractor by the courts and is therefore responsible for their own torts. This test was applied in Mersey docks v Coggins Ltd (1947) The integration test looks at whether the person’s work is an integral part of the business. If they are an integral part of a business for example a till worker, then they are more likely to be seen as an employee to the courts. If they are not seen as an integral part of the business for example some one who has come in to fix a till, then they will be seen by the courts as a independent contractor. This test was established in Stevenson v McDonald (1969). The economic reality test looks at the contractual relationship between the defending two parties. An individual who has a contract of service is more likely to be seen as an employee by the courts. Whereas, an individual who has a contract for services, is more likely to be seen as an independent contractor. The courts may also look at the way an individual is paid. If an individual is paid a salary and the person they are working for makes tax reductions, then the individual is more likely to be seen as an employee. If however, the person is paid a lump sum and has to make their own reduction they are more likely to be seen as an independent contractor. There are also elements to consider which are inconsistent with a contract of employment, which includes; the ability to hire own employees, requirement that you provide your own tools and materials and that you pay your own tax and national insurance. This test was applied in the Ready Mixed Concrete Ltd v Minister of Pensions and National Insurance (1968) where it was held that the driver was an independent contractor. The Salmond test establishes whether the tortuous act was during the course of employment. Circumstances where torts fall within the course of employment include: wrongful act authorised by the employer as in Poland v Parr (1927) in this case an employee assaulted a boy who was stealing from his employer’s lorry. Wrongful and unauthorised way of doing acts authorised by the employer is another example. Another time when vicarious liability applies is when an employee carries out an expressly forbidden act but one that is of benefit to the employer such as in the case of Rose v Plenty (1976), when the wrongful act occurred during travelling to or from a job but the employee is being paid for this time. There are also situations when the act doesn’t fall within the course of employment. For example, when an act occurs while the employee is ‘on a frolic of his or her own’ like in the case of Hilton v Thomas in this case employees took an unauthorised break and on returning one of the employees crashed the van killing someone, the employer wasn’t held liable for this. Employers can also be held liable for criminal acts that also amount to torts. For example in Lister v Hesley (2001) in this case, employers were held responsible for an employee who had sexually abused 3 claimants.

Vicarious liability is a contentious area of the law, as it is the concept of imposing responsibility and liability on a third party. There are however many justifications for imposing vicarious liability on a third party for example employers. One reason is that the employer benefits from the work of the employee, and should therefore be held responsible for any wrongs they commit. In addition, because employers are held responsible for any actions their employees make they should also be held accountable for the torts of their employees and ensure they carry out the work safely. This will then drive up quality standards for other employers in that same practice. This may help prevent other torts of a similar nature from occurring, thus protecting the public and other employees from tortuous acts. Another justification for imposing liability on a third party is that they are more able to bear the financial burden of liability. This justification also ensures that the claimant is compensated adequately for their damage, which is an aim of tort law. Employers also have to have or pay compulsory insurance. When tortuous acts occur the employer would only pay the insurance premiums not the compensation itself. The prospect of increased premiums may drive other employers from a similar profession to increase there standards of health and safety thus acting as a deterrence to others which is another aim of tort law. Employers also have the power to discipline employees for poor working practice, they therefore have the ability to minimise the risk of tortuous acts. If they don’t discipline their employees and then they commit a tortuous act for a similar reason then employers should be found liable as they did not do everything they could to prevent this tort from occurring. Conversely, there are aspects of vicarious liability that seem very unfair on employers. Vicarious liability can be seen as unfair as it contradicts the basic ‘fault’ principle of tort law. In terms of the employer/employee situation, it is making the employer a tortfeaser as well as the employee when it was the employees own fault. This can be seen as unfair as they are holding the employer responsible for actions of an independent, self-thinking individual, whom is able to foresee consequences to the actions they make. Another aspect that can be seen unfair is that even if the employer expressly forbids an employee from conducting a certain activity and the employee still does it, the employer can still be found liable. This occurred in the case of Limpus v London General Omnibus Company (1862). In this case the employer expressly forbade the bus drivers from racing, yet they did it anyway and injured the claimant, and the employer was found vicariously liable. This is clearly a strong argument against the fairness of vicarious liability as the employer had taken action against behaviour that could cause injury and yet he was still held liable for the consequences of his employees’ actions. Another argument against vicarious liability is that rules and/or tests for vicarious liability are applied inconsistently, this produces the outcome of cases that contradict each other. There are two examples of this. The first eample of contradictory cases is between Rose v Plenty and Twine v Beans Express. In Rose the employer was held liable for the actions of their employee, which resulted in a boy, being injured after the employee gave him unauthorised lifts. However, in Twine the employer was not found liable for the injury caused by the employee. The only small difference in the cases is that the employer was not benefiting from the claimant gaining a lift in Twine. This decision makes it seem unfair for the employers in Rose to have been liable. Especially since they were not likely to have been aware of these lifts occurring. The second example is between Limpus v London General Omnibus Company (1862) and Beard v London General Omnibus Company (1900). In Limpus employers were found liable whereas in Beard the employers were not found vicariously liable. It can also be perceived as highly unfair for an employer to be held vicarious liable if the mere careless actions of an employee, which lead to a claim, was the first time this sort of behaviour had occurred. This occurred in Century Insurance Co. Ltd v Northern Ireland Transport Board (1942) when the employee carelessly through down a lighted match in a petrol station causing an explosion. Due to this being the first example of careless behaviour the employer had no opportunity to discipline the employee which could have stopped this tortuous act from occurring. Furthermore in this particular case no reasonable employer would have reasonably foreseen a reasonable employee from throwing down a lighted match. After all it is common sense that this could result in an explosion. It can be argued that in this case the employer was held vicariously liable for the employees’ mere carelessness, and this can be perceived as unfair on all employers if they are held for mere carelessness of an employee which they couldn’t have foreseen. In Trotman v North Yorkshire County Council (1999) the employer was not held vicariously liable for the tortuous actions of their employee (who committed the crime of sexual harassment on one male student). The courts general feeling was that the more extreme the act of the employee, the less likely, and the less fair it would be for the employer to be held vicariously liable for the tortuous actions. However in the case of Lister v Hesley Hall Ltd (2001) the employer was held vicariously liable. This was a result of a new key test being introduced. The new test was to identify if there was sufficient connection between the employment and the torts carried out by the employee. This test now means that if the tort was beyond the course of employment, the employer could still be held liable as long as there is a link between the tort and the employment. This makes it increasingly unfair on employers as there are not any precautions they can take that will protect them from being held vicariously liable if the tort has a link with the employment. For example they could have given employees extensive training and policies on what is acceptable and unacceptable behaviour and they will still be liable. Since the Lister case, the test that was established in it has been used in Mattis v Pollock (2003) where the bouncer went home after a fight at the club, came back and stabbed the claimant. The employers were held liable were held liable. Before the Lister case the employers wouldn’t have been liable because this unauthorised act didn’t benefit them in anyway and was beyond the course of employment. However the courts decided that there was a close connection between the employment and the tort as bouncers are supposed to be intimidating. Overall, although there are many justifications for vicarious liability, it would appear that it is highly unfair on employers as there is no real way of them protecting themselves from being held vicariously liable since the case of Lister v Hesley Hall Ltd (2001). The only thing that may happen is that the insurers may sue the employee for indemnity. This occurred in Lister v Romford Ice and Cold Storage Ltd (1957). However this option is rarely used due to the strong criticisms it receives as it destroys the purpose of vicarious liability.