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An employer can be liable for the torts committed by their employees, making this secondary and
sometimes strict liability.
The first question that needs to be asked to establish liability is who is an employee. If there is a
contacts of service then then the person is an employee if they were in the course of their
employment making the employer responsible for the tort. A contact for services will make the
person an independent contractor and so the employer will not be responsible unless an exception
applies, for example being expressly told to commit the tort.
The original test was the control test from YEWENS v NOAKES, this was replaced by the integration
test from STEVENSON JORDAN & HARRISSON v MCDONALD AND EVENS which was also applied to
MARKET INVESTIGATIONS v MINISTER OF SOCIAL SECURITY.
The modern approach is the economic reality test that comes from the case of READY MIXED
CONCRETE v MINISTER OF PENSIONS and this test consists of there being a wage for a skill, control
and other factors consistent with a contract of service such as regular pay, holidays and equipment
provided. This test was applied to LANE v SHIRE ROOFING and demonstrates the inconsistency of this
area as it seemed to have been a policy decision.
For a loan situation it would appear the crucial element is control so the test from YEWENS is used
following the cases of MERSEY DOCKS & HARBOUR BOARD v COGGINS & GRIFFITH and VIASYSTEMS v
The second question that needs to be asked to establish liability is if the employee was acting in the
course of their employment. There are three ways this can be the case: if they employer authorises
the employee to carry out the wrongful act, if the employee is authorised to do something but they
do it in an unauthorised way and finally if there is sufficient connection.
An employer can authorise a wrongful act making the employee in the course of their employment so
the employer will be liable, for example in the case of POLAND v PARR. However in this case it was
only implied authorisation.
An employee can do what their authorised to do in an unauthorised way as shown by the case of
CENTURY INSURANCE v NORTHERN IRELAND TRANSPORT BOARD.
Express prohibition of an act does not necessarily allow avoidance of responsibility as shown in ROSE
v PLENTY where D gained a benefit and so were liable but in the case of TWINE v BEANS EXPRESS
there was no benefit to D and so were not liable.
The case of LIMPUS v LGOC held D liable as the driver was doing what they were authorised to do by
driving the bus but in an unauthorised way by racing it however the case of BEARD v LGOC the D was
not liable as it was the conductor not the driver and so was outside his course of employment.
If the employee is on a frolic then the employer will not be liable, the distinguishing factor between
WHATMAN v PEARSON and STOREY v ASHTON is that as WHATMAN returned to work this made the
employer liable, STOREY had finished work so employer was not liable. The case of SMITH v STAGES
has defined what a frolic is.
If the employee carries out an intentional criminal act they are less likely to be in the course of their
employment as shown by KEPPEL BUS CO v AHMAD for assault, N v MERSEYSIDE POLICE held the rape
was a frolic, theft in MORRIS v MARTEN would generally not allow liability but the position of trust
made the employer liable, BARWICK v JOINT STOCK BANK held fraud at work may result in liability for
the employer if the fraud was linked to the authorised act as shown by DUBAI ALUMINIUM v
The sufficient connection test for course of employment can be traced to TROTMAN v NORTH
YORKSHIRE CC where it could not be said sexual assault was doing an authorised act in an
unauthorised way. The Canadian case of BAZELY v CURRY then introduced the idea of the sufficient
connection test. LISTER v HESLEY HALL brought the sufficient connection test into English law by
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BAZLEY making the employer liable as the act was sufficiently
connected to the work. This test was then applied to the cases of MATTIS v POLLOCK and MAGA v
ROMAN CATHOLIC ARCHDIOCESE OF BIRMINGHAM and the employers were found liable suggesting
the broadening of the law but an approach aimed to promote safety and ensure the aim of tort law is