Vicarious liability problem questions

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Gordon Junor Vicarious Liability Redefined

  • Vicarious liability must be said to represent a legal fiction designed to allocate responsibility, if not blame, for what may have happened, in what the law considers to be the most appropriate manner. 
  • In Viasystems said 'the concept of VL does not depend on the employer fault, but his role.' 
  • He supports enterprise risk and loss spreading, saying it is policy based. Those who profit from the activity should compensate those injured. Liability is extended to the employer on the practical assumption that he can spread risk through pricing and insurance. 
  • The close connection test, as recognised in Wilso is an extremely broad one but is well established and fundamental. In Wilson the factors considered in adopting this broad approach were said to be a) that the context of the act complained of should be looked at, not the just act itself, b) that time and place were always relevant but may not be conclusive and c) the fact that employment provides the opportunity for the act to occur at that particular time and place is not necessarily enough. It was clear in that case that the act didnt relate to the employment in question and falls within the 'purely personal and independent sphere of life and action which an employee may enjoy.' 
  • This was shown with the unauthorised use by an employee of a vehicle left in the custody of a garage employer (Central Motors Glasgow) through to sexual harassment of an employee (Ward) and ponytail pulling in Wilson. 
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Gordon Junor Vicarious Liability Redefined

  • With assault by employees, they only produce VL if the employee was 'engaged in something connected with his employers business ie carrying out a task associated with his duties.' 
  • Lord Reid in Ward said there can be no VL where there was 'an unrelated and independent venture of its own: a personal matter, rather than a matter connected with his authorised duties.' 
  • Policy reasons for VL as given by Lord Phillips in Christian Brothers- i) the employer is more likely to have the means to compensate the victim and insurance ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer iii) the employees activity is likely to be part of the business activities of the employer. iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort being done by them v) the employee will, by some degree, have been under the control of the employer. He didnt see all the factors are the same level of importance. He thought the deep pockets/loss spreading argument was unconvincing. Also for insurance, employers insure themselves because they are liable, they are not liable because they insured themselves. On the other hand given the situations these problems arise in, unavailability of insurance might be a relevant consideration. Control no longer has the importance it used to. 
  • Preferred the use of enterprise risk justifications. The underlying legal policy is that carrying 
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Gordon Junor Vicarious Liability Redefined

  • on business necessarily involves risks to others- Dubai Aluminium. 
  • The principle of akin to employment from Christian Brothers and Cox is intended to identify where VL arises outside of employment. Where a worker may be part of the workforce but doesnt have a contract of employerment and reflects the idea businesses should be responsible for their activities. 
  • The defendant need not be carrying out activities of a commercial nature. The benefit need not be profit. 
  • The criteria are not to be applied mechanically or slavishly, but must be able to look at whether imposition of VL is fair, just and reasonable. 
  • After Mohamud, to find close connection need to ask 2 questions- 1) what functions or field of activity have been entrusted by the employer to the employee/what was the nature of his job? and 2) whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.
  • Toulson J said 'while the employees conduct in answering the claimants request in a foul mouthed way and asking him to leave was inexcusable' it was 'within the field assigned of activities assigned to him' and what followed 'thereafter was an unbroken sequence of events.' It was a gross abuse of position but still furthering the employers aims. 
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Phillip Morgan Fostering, VL, NDD and Intentional

  • Abuse in care is a serious problem. NA concerns NDD's and Morgan thinks the decision to deny liability for NDD is right but not for the same reasons. 
  • NA determines that foster carers do not stand in sufficient relationship with the local authority to trigger the doctrine of VL. 
  • Tomlinson rejected VL because in his view the provision of family life is not part of the activity of the local authority or the enterprise in which it is engaged. However boarding houses in Lister and employment of parent figures in Bazley show this isnt clear cut. In addition he said no control as their control was at the higher or macro level and not micro management. This is not the correct test. JGE shows that for akin to employment micro management is not the level of control needed. He adopted the argument of KLB (Canadian SC case) which held there was no VL for foster carers. 
  • Black noted the centrality of control in establishing relationship akin to employment. She said provision of experience of family life precluded the necessary level of control. Lack of control is not necessarily central to the idea of fostering itself. It is submitted that some modern forms of fostering may be open to VL. 
  • Given NA's two different types of foster home, Tomlinson noted reservations as to the appropriateness of the analogy of family life. The nature of the activity and risk varies. The case doesnt distinguish and acts as if they were the same. 
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Phillip Morgan Fostering, VL, NDD and Intentional

  • NDD's are different. They can be common law or statutory. Tomlinson said no NDD here. He said for a duty to be ND it must relate to a function which the delegator itself has assumed a duty to perform. He said fostering is not such a duty, since the local authority cannot provide accomodation within a family unit. It discharged its duty to provide accomodation and maintenance. This is odd. 
  • Burnett said there was no relevant NDD, although he construed the scope of the duty differently- one of a duty to care for the child, promote its welfare and protect if from harm. He saw VL and NDD as the same. Morgan says they are different becasue breach of an NDD may be trigger by an independent contractor. The doctrines should be kept apart. 
  • Burnett and Black also said the NDD's in English law concern negligence and not assault. 
  • Intentional wrongs may trigger a breach of VL as shown in Morris and Lister. Stevens said that 'liability for breach of a primary duty cannot be avoided by showing that the breach was gross. It is as if a seller of canned soup could avoid liability for its defective quality if it was shown that it has deliberately been poisoned by the manufacturer. Only if NDD's are seen as a disguised form of VL does it make sense to refuse the claim on the basis that the wrongdoing was intentional.' 
  • Morgan says nothing in NDD's restricts breaches to only negligent acts. Should mainly consider fair, just and reasonable. 
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Phillip Morgan Fostering, VL, NDD and Intentional

  • Black said would be unreasonable burden on LA and contrary to the interests of children. She said children are most likely to benefit from foster placements. Burnett agreed. Black said that the law of negligence ensures proper screening of carers, along with checks and balances. She thinks an NDD where the LA arent at fault themselves would promote defensive practise. 
  • Such resources arguments mean that the courts are more likely to award damages where the Woodland criteria are met, but not when there are potentially large numbers of claimants. This leads to the problem that where there is a greater problem, there is less likely to be a tort remedy. 
  • A court in NZ decided the other way saying liability would be socially desirable since it would be an incentive to protect children. 
  • Blacks argument is the core of why the NDD is not suitable in the child placement and foster care context. If this was present it would create LA liability for acts of children's parents or relatives. This is undesirable and would create state insurance for family acts. 
  • This shows the superiority of the VL approach. Would not result in the LA's liability for the acts of the child's family. The authority would only be liable for the person they stood in sufficient relationship with. It would limit liability to those they could screen and control. Whilst it wasnt present in this case, it may be in other statutory regimes. 
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Paula Gilliker Making the right connection

  • VL is inherently controversial. It is at odds with the idea that people should only be liable for their own acts. No clear consensus as to the rationale. Lister and Bazley show it can be extended to criminal activities by employees. 
  • Close connection test- McLachlin in Bazley said to decide by reference to policy rationales underlying the doctrine eg provision of remedy and deterrence of future harm. This didnt give much guidance to future cases. The term enterprise risk may be surprising in the light of the context of the majority of Canadian cases, which involve claims against non profit organisations, whose ability to spread losses is limited. Charitable enterprises were not treated differently in Bazley. Liability can still have a deterrent effect for them. 
  • Enterprise risk wasnt followed in Lister. The Lords gave 4 different versions of the close connection test. They rejected the policy framework from Canada. Subseqent case law has focused on Steyn's test- 'were the employees torts so closely connected with the employment that it would be fair, just and reasonable to hold the employers VL?' Risk is used as a pragmatic justification for liability. Provides a basic sense of justice, but limited guidance. 
  • Nicholls pointed this out in Dubai Aluminium- 'the close connection test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficient to prompt the legal conclusion that the risk of the wrongful act occuring and any loss flowing from the wrongful act, 
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Paula Gilliker Making the right connection

  • should fall on the firm or employer, rather than the third party who was wronged.' In Mattis v Pollock the judge called the test 'deceptively simple.' Judge applied the Steyn test. 
  • Difficulties are well exemplified by the case of N v Merseyside Police. He was not acting in his employment, a decision hard to reconcile with Mattis. 
  • A number of threads can be identified from this sample of decisions- a willingness to extend the law beyond previous authority, reference to risk creation, and more generally, reliance on the principle of distributive justice, all of which can be found in Steyn's test. They have neither brought certainty nor predictability of result. 
  • Gilliker says the close connection test still lacks clarity and the courts stuggle with its application. She said this should not continue. 
  • There has been confusion between NDD's and VL in cases such as Lister. This is shown through discussion of assumption of responsibility. In that case the NDD reasoning is appealling. It is a small step to argue that any institution assuming responsibility for the health and welfare of an individual has a duty to provide competent staff. This reasoning would have the advantage of focusing on a distinct social need- the judicial strengthening of the rights of vulnerable parties in institutional care. Although attractive, there are problems. It has not been used due to an unwillingness to extend NDD to intentional wrongs and the existence of established authority utilising VL to impose strict liability 
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Paula Gilliker Making the right connection

  • for intentional torts. 
  • 1) unwillingness to extent NDD's- they play a limited role in tort law and there is no single principle capable of unifying the existing duties. Fleming termed them 'a disguised form of VL'. The real obstacle is the nature of the liability sought to be imposed. NDD's so far have one thing in common- the duty to see that reasonable care is taken. Murphy suggests it is a subspecies of negligence law, founded on the fault principle. However with sexual assault this fails as it is intentional abuse. The duty proposed would be to ensure no harm is suffered by the victim, due to the negligent or intentional actions of the person to whom the duty is delegated. This is much more onerous and would require special justification. To equate intentional wrongdoing with failure to take reasonable care is just misleading. Lepore v NSW expressly rejected the NDD argument. Gleeson in that case said 'intentional wrongdoing, especially criminality, introduces a factor of legal relevance beyond a mere failure to take care.' To impose liability on schools here would be 'too broad and too demanding.' 
  • 2) existing authority which imposes VL on defendants for intentional torts- In this sense VL is simpler and less contraversial. In Lloyd and Dyer, both employees had done intentional acts that were VL. Thus the common law had permitted VL for intentional torts where the employee in question had been acting, albiet wrongfully, in the exercise of protective or fiduciary duties entrusted to him by the defendant. 
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Paula Gilliker Making the right connection

  • Revisiting the close connection test- the factual content of Bazley, Lister and Lepore are relevant. They all focus on deliberate acts of abuse by people whose job it was was to safeguard others. What may be inferred that the amending of the Salmond test was not out of desire to amend the test, but out of a sense of injustice at the inability of victims to get compensation when mistreated. Same as Millet in Lister. The context of the cases required the extension of liability. Such liability may also be explained in terms of risk, the higher risk in these situations, or that it is fair and reasonable to impose a duty. However it is more helpful to gradations of risk or distributive justice, in favour of a more concrete test. Paula argues that for existence of close connection 2 requirements should be met- 1) the employee is entrusted with a protective duty exercised at the employee discretion and 2) the act in question is undertaken in the purported exercise of this discretion. 
  • Much will depend on facts. This test is more focused and limited to certain situations. Fleming recognised 'the modern doctrine of VL cannot parade as a deduction from legal premises, but should be frankly recognised as having its basis in a combination of policy considerations.' 
  • Problems with the above test- wouldnt fit too well in Mattis and Bernard. Bernard may be explained on the basis that the law grants considerable discretionary powers to protect the public, which will justify more generous imposition of liability. The case may also be justified 
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Paula Gilliker Making the right connection

  • on the ground the officer also implicitly asserted he was acting for some protective purpose. 
  • Mattis is problematic. Australian cases accept there may be a personal level of animosity and spontaneity in security, which indicates the employer should not be liable and attention should be paid to the nature and seriousness of the criminal act. The attack took place in respect of a guest going home and offered no threat to the business and other guests. The CoA just concentrated on finding some connection between his criminal attack and post. The CoA said if they could they would have held the employer personally liable for employing a security guard with a history of violence and whose aggressiveness the employer had encouraged. 
  • Such an approach was adopted by the PC in Hartwell. At the time of the officers shooting, he had abandoned his post and was on a vendetta of his own which bore no relation to the protection of an individual or property. VL was rejected. Nevertheless the police authorities were held to plainly owe a duty to the public in taking reasonable care with who they gave guns to. They would be primarily liable in this case for failing to take reasonable care to remove the gun after previous incidents. Mattis provides a warning for the breadth of Steyn's test. Close connection to reference of what is fair, fails to give certainty and guidance. It is only by focusing on the relationship between the employer, employee and victim and the nature of the acts entrusted to the employee that the law will develop a greater degree of certainty and justice. 
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Paula Gilliker Making the right connection

  • Close connection test makes the law flexible at the cost of uncertainty for defendants, their insurers and society as a whole. One might question a test based on 'fairness and justice' that results in the imposition of strict liability on the employer for the violent crimes of their employees on the simple basis there is some connection between the act and the tortfeasors employment. 
  • She submits VL should only be imposed for intentional torts where the employee is engaged to perform duties of a protective or fiduciary nature which safeguard the interests of the employer or others. The HoL in Lister gave clear indication of when liability should arise but fatally failed to state this with sufficient clarity. It is the very fact of the vulnerability of the parties and the protective duties entrusted to the employee that justified the imposition. If this is satisfied then the court should examine if the act was undertaken on the purported exercise of these duties. Will focus on the protective discretion given to the employee. 
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Stelios Tofaris VL and NDD for child abuse in fost

  • Perpetrators of the abuse are 'a notoriously unreliable source of funds.' Negligence is hard to prove with this under Bolam. 
  • In NA, only stage one of VL was considered because if that was accepted stage 2 would follow. S v Walsall MBC stood for the propostion that stage 1 was not satisfied in this context. 
  • Limits of NA as precedent- fostering is very different now than it was then. 
  • Relationship of LA and foster parents- CoA's decision focuses on the LA's absense of control over foster parents in the daily provision of family life to the child. Significance of control in VL has receded. Now principle rationale is enterprise liability. In this respect what matter is that the defendant can direct what the tortfeasor does, not how he does it. The relationship between the LA and foster parents is complicated. The role of foster parents in the overall structure of the LA is not uniform. Some are expense paid volunteers, others are multi disciplinary teams of workers, who are trained to work with neglected children, which is beyond parenting. Not all foster parents perform the same role or are integrated into the organisation in the same way. The control the LA has over the foster arrangement is mixed. Foster parents are largely free from control in day to day life. However the LA supervises who the parents are, the fostering arrangement, if the child goes on holiday, whether it can stay with friends etc which impact everyday life. 
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Stelios Tofaris VL and NDD for child abuse in fost

  • In seeing if they are independent contractors, this is also unclear. Foster parents use their own equipment, but rarely hire helpers. VL may be justified in some situations but not others. However would such a difference be fair to abused children in whose eyes foster parents have the same role? Tipping in S v AG recognised that the relationship between the LA and foster parents contains an element of relationship of employment and also being independent contractor. In such inconclusive circumstances, it does not seem appropriate to make them 'akin to employees.' 
  • NDD- the rationale is 'assumption of responsibility' as confirmed in Woodlands. There are five factors but even if these are met it should only be applied when fair, just and reasonable to reduce financial burdens on public services. 
  • Contents of NDD- Tomlinson said the duty was to focus on providing accomodation and maintenance which was discharged through the foster placement. This is unduly narrow. Males said it was a duty to promote its welfare and protect from harm. Burnett and Black agreed with Burnett adding 'reasonable practicality.' This is the most appropriate formulation of the duty which must be examined. 
  • Burnett didnt like a NDD to cover intentional harm. This is wrong as it would be contrary to principle and common sense for it not to apply to intentional torts. If the duty is to protect the child from harm, this is breached through their assault. 
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Stelios Tofaris VL and NDD for child abuse in fost

  • Although no case in England has imposed liability for breach of NDD through assault, no case has disproved this. Burnetts reliance on Lepore should be treated with care. It is true it supports his view but it contains a variety of analysis and is also out of line with doctrine and policy in the UK. 
  • Assessment of policy considerations- this comes under the fair, just and reasonable test. Black said imposition of duty would be unreasonably burdensome on the LA due to its scarce resources, and it would be contrary to childrens interests and defensive practise would lead to fewer foster placements and more authority run homes. Blacks argument as to defensiveness is speculative and unsupported by empirical evidence. The ratio of substantiated child abuse claims is higher in residential care tahn in foster care with rates of 2-3% in homes and 1% in foster care. Residential homes do not result in fewer incidents or reduce the LA's liability. It is more complex than it seems with about 60% of children in homes today provided by the private or voluntary sector. Shows the real choice is between foster care and homes run by independent contractors. Can it be true that the LA is VL for abuse by its employees in the houses it runs but not liable for abuse in houses run by independent contractors? If that is so, the LA can avoid liability by outsourcing its functions and a NDD should be applied. Could be argued that if LA is strictly liable to children abused in homes, and not foster care, they may place children into foster care who are not 
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Stelios Tofaris VL and NDD for child abuse in fost

  • appropriate for it. Imposing breach in the NA situation may instigate a more rigorous regime of selection, training and supervision. Both these arguments are empirically untested. Paying compensation to victims will inevitably affect the LA's budget. But the same holds true for schools and the NHS where NDD have been recognised, and nursey homes with VL claims. The real question is whether the effect on LA's resources ought to preclude the imposition of NDD balanced against other considerations. Short of evidence of an unmanageable insurance burden, it is arguable that it should not do so. 
  • Ambit of the NDD- concern about lack of principle and adequate limits was an additional ground for no NDD in NA. There are a number of questions from this. 1) should the LA's NDD cover cases where children are allowed to stay with natural parents who then abuse them? Given the relationship of control between authority and the child and there is delegation of teh authorities core function to the third party, the answer should in principle be the same as with foster parents. It is not easy to see why the delegates identity makes a difference. It does not follow that this would deter the authority putting the child back with their parents as Black argued. If they owed a NDD to those in homes and foster care then there would be no incentive in terms of liability to prefer those placements instead of natural parents. 
  • 2) should natural parents owe their children a NDD similar to the one a LA would owe children in their care? 
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Stelios Tofaris VL and NDD for child abuse in fost

  • If the LA's NDD is based on the parental responsibility over their children, arguably the result should be the same. Yet such a duty would go too far and be contrary to the courts reluctance to impose legally enforceable duties on parents for their childrens benefits. Burnett said that parents who let their children stay away from home couldnt be fixed with liability for an assault on the basis of an NDD, so the LA shouldnt either. This arguments validity rests on whether it is justifiable to draw a distinction between the legal position of the LA and parents. Three broad factors are relevant- 1) the distinction is appropriate where the LA has to make decisions of a nature which a parent with whom the child is living in a normal family doesnt have to take. In Blacks view this doesnt apply beause the LA's decision concerns entrusting day to day care to a third party which is often what parents do and it is not a strategic or management decision. One may question if they are qualitively the same eg in duration.
  • 2) it is relevant that a LA employs trained staff to make decisions and advise it in respect of the future of children. The decision as to whether to trust the care of the child to foster parents is taken by 'paid professionals' in markedly different conditions from those surrounding the parents decision of whether to let a child stay with a nanny.
  • 3) a major reason courts have been slow to impose duties on parents is that save exceptional circumstances little would be gained through an action by a child against its parents, from a fund that is already being used for its benefit. 
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Stelios Tofaris VL and NDD for child abuse in fost

  • This may also disrupt family harmony. This does not apply to an LA. On the whole, it is possible to draw distinctions between the position of the LA and that of the parents as regards the imposition of an NDD of care to the child.
  • NDD continues to function as a separate conceptual device to VL, saddling the defendant with strict liability in exceptional circumstances. It arises most often because VL does not. In a NDD control over the tortfeasor is changed to control over the claimant. 
  • The exceptional nature of VL and NDD means that both doctrines should be kept within reasonable limits. Locating these limits requires a close examination of the underlying policy considerations. The inevitable conclusion in many cases is that liability is a step too far. The liability of LA for abuse by foster parents of a child placed in their care is arguably not. 
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Seminar notes

  • If looks like a VL situation, dont need to do NDD. 
  • Steps are 1) there must be a tort committed (intentional or not). Briefly run through how the tort is established. 2) The tortfeasor must be an employee or akin to employment relationship (Christian Brothers) 3) the tort must be committed in the course of ones employment (Lister- close connection) 4) is it fair, just and reasonable to impose? 
  • A question will be mainly concerned with one part of the test. 
  • Questions turn on the facts. 
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