Vicarious liability seminar

• Not confined to negligence, it extends to both intentional torts and breach of statutory duty. 
• Form of secondary liabilty. The employee commits the tort but the employer is liable. This was shown in the Supreme Court decision of Woodland. It is essential to the liability of corporations. Corporate defendant can commit torts but mainly through others. Its liabilities are normally secondary. 

Justifications for VL-

• In Christian Brothers, the SC declared the first requirement to establish VL- that there is sufficient relationship between tortfeasor and the potentially VL party- will be assessed in relation to the underlying rationale for such liability. There is a direct link between justification and the applicable principle. In this case, the SC accepted the existence of a range of policy concerns, despite the apparent identification of an overriding concern with compensation. 
• The effect of justifications for VL is often seen as cumulative.

Justice arguments- enterprise risk-

• Defendant should take the risk of harm because he takes the benefit from the risk

• or because of their risk in creating the risk. It is not fair and just to say these risks should be passed to others. Doesn't say there is anything wrong with creating the risk. This approach can be used to justify normal risks inherent in enterprise and does not require that the defendant has enhanced the risk. 
• An alternative variant of it is that the costs of enterprise ought to be internalised in order to stimulate the most efficient level of risk taking. If an enterprise can place its risks on another, it can be tempted to take risks which are not socially efficient because they come at no cost. Has not been explored in recent case law. 
• This justification doesnt explain why there is no VL for independent contractors. One answer to this is that they form their own enterprise. Glanville Williams also said it would be inconvenient. Whether it stands up in the modern world is up for debate. Many non employees are not enterprises. They are just an informal workforce. 

Incentive and deterrence arguments- 

• employer has the opportunity to increase safety standards. This argument does not explain why liability is justified in cases where the accident is unavoidable, and all due care has been taken. 

• Deterrence may be better expressed as an incentive theory- VL gives employers incentives to find ways to improve safety standards beyond those set by the reasonable person.
• Bazley v Curry- 'beyond the narrow band of employer conduct that attracts direct liability in negligence, lies a vast area where imaginative and efficient administration and supervision can reduce the risk that the employer has brought into the community.' 

Loss spreading/deep pockets- 

• most promising route for compensation is through the employer. This is no more than a deep pockets argument. Putting insurance into the equation makes it more modern- the risk of harm can be managed by the defendant and spread through a risk bearing community, not placed on the vulnerable claimant. Atiyah concluded this argument was sound. 
• In recent case law, pure loss spreading has not been accepted. Loss spreading has been combined with the enterprise risk justification. This was what was used in Bazley v Curry. 
• The capacity of the defendant to secure insurance and compensate the injured party was mentioned by the SC in Christian Brothers. 

VL is best justified at the intersection of all three. Judgments often contain reference to many. 

In Viasystems v Thermal Transfer- Rix used judicial shorthand to say this when he said that VL applies where it is 'fair, just and convenient' for it to do so. 

The two limbs- there is now synthesis or connection between the two limbs. The authoritative statement for this was Christian Brothers- 'What is critical at the second stage is the connection that links the relationship between D1 and D2 or the act or omission of D1, hence the synthesis of the two stages.' 

Viasystems v Thermal Transfer 2006- when looking for an employment relationship (the test used to be control) Rix argued that 'control', although important was not sufficient to act as a sole test for employment. Other structural and practical considerations may apply. He emphasised the underlying policy rationales behind VL, and the relationship undertaken by the employer for his own benefit and the obligations that may flow from this. 

Akin to employment- this is now the question, established in Christian Brothers. The reasons which justify VL for the torts of employees also yield the answers to the question whether a relationship is sufficiently close. That means the test for a relationship akin to employment is a specific tort focused enquiry. Employment for one purpose, is not necessarily for another. 

Second limb- from course of employment to close connection- Move away from the Salmond test and now more emphasis on whether there is a close connection between the act and the employment. 

• Bazley v Curry- close connection was explained through introduction of risk. The question is whether the employment enhanced the risk in a material way, not simply to a material extent. Given the wrongful acts were related to inherent intimacy in the employers enterprise and the power of the employee over the vulnerable victim, VL for the intentional acts could be justified. Didnt see an exception for charities. The deterrence argument is equally valid for a non profit. Rejected general loss distribution argument as smacks with utilitarianism. 
• Lister v Helsey Hall 2001- HoL overruled Trotman. Re-routed the test from course of employment to close connection. There were different versions of the close connection test. Steyn stated the wardens acts were 'inextricably interwoven' with his duties. Hobhouse said the defendant itself owed a duty to the children to guard their welfare since it had assumed responsibility to them. Relationship between child and school was important. This theory is essentially a NDD. Millet used liability for risks that are reasonably incidental to employment. Drawn directly from ideas of loss distribution and enterprise risk. 

• Lister- which tort? The wardens acts were trespass to the person. Millet made clear the VL was for assaults, not negligence for not taking care. Hobhouse said negligence. 
• Dubai Aluminium- developed Lister test. For criminal wrongdoing there is VL if the risk of wrongdoing can fairly be said to be reasonably incidental to the employers business. 

It is now recognised that while acts done in the course of employment will trigger VL, beyond this the relevant connection is between the tortfeasor and defendant and the comission of the tort. 

• Christian Brothers- Hope said that the growing recognition of widespread sexual abuse of children has presented the law of VL with new challenges. 

VL for breach of statutory duty- 

• Majrowski v NHS Trust 2006- would arise under the Protection from Harassment Act. The HoL decided the employer could be VL under this act. 

NDD- if the duty is breached the defendant would be liable even if they took all due care. The liability doesnt attach vicariously, the defendant is the tortfeasor. There may be no fault. Most established are those owed by the employer to his employee. At common law these involve a safe place and system of work. Statutory duties have added to this. 

• Woodland v Essex CC- applies to independent contractors. The existing relationship was identified as generally arising from an 'assumption of responsibility' imputed to the defendant by virtue of his relationship with the defendant. Sumption extended liability in a way that had not been seen before in English law. 
• Other primary duties- care in selection and supervision. There are circumstances where a duty is clearly owed to exercise care in the selection of contractors.
• An occupier may discharge his duty to keep visitors reasonably safe by entrusting work to contractors provided reasonable care is taken when selecting the contractor. 
• Duties to supervise employees- may be scope for liability of the employer in accordance with primary duty. Sometimes such duty might be an alternative to VL. 

• Gig economy- things such as Uber. This has bought problems such as employment status and legal rights and responsibilities. Need to know if they're an employee or independent contractor. Will be important for injured public trying to get compensation. This is an important issue as Uber is aiming to have 42'000 drivers in London alone this year. 
• It is the first stage of the VL inquiry that this will be relevant to- is the relationship able to give rise to VL? Following Christian Brothers and Cox an employer employee relationship will generally be capable of giving rise to VL, as will a relationship akin to employment but not independent contractors. 
• Employee or self employed contractor? Used to be test of control. This doesnt work with highly skilled professionals, who require and are subject to little control. ViaSystems adapted it saying whose responsibility was it to prevent the tort. Who was entitled to give orders as to how it should have been done? Christian Brothers said significance of control is that the employer can direct what the employee does, not how he does it. 
• Uber does exert significant control over its drivers, in both what is done and how. Control is no longer the sole or perhaps even dominant factor in determining an employee employer relationship. 
• Number of principles to consider- the parties expressed intention as to relationship is relevant 

• but not conclusive. Uber classes drivers as partners or customers but this will not be conclusive. 
• In English Province a number of other factors to determine were considered- control is important but not crucial, consider economic reality of the situation, integration is still relevant, provision of individuals own equipment is indicative that someone is an independent contractor, the ability to hire helpers or substitutes is not suggestive of employment and courts will look at degree of financial risk taken and degree of responsibility for investment and management. The more factors present, the more likely an individual is an independent contractor. 
• May be no obvious answer after all factors are applied. A crowd worker may log on and off when he wants, provide their own tool and have little integration. But it is difficult to say they are in business for themself eg have little involvement in pricing. They are paid a flat rate they do not set, but whilst they may not be integrated into the business, they are an essential part of it. 
• Something akin to employment- statutory construct which enables more basic rights. Even if Uber argues its drivers are self employed, it is clear the services they are providing are part of a business undertaking carried on by someone else. 

• Lord Reid set out principles in Cox v MoJ- individual carries on activities as an integral part of the business activity carried on by the defendant, the activities are carried out for the defendants benefit and the commission of the wrongful act is a risk created by the defendant in assigning those activities to the individual in question. 
• In the same case he said that an important consequence of the extension of VL to relationships akin to employment is 'to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which have nothing to do with the nature of the enterprises activities or the attendant risks.' 
• Each situation will turn on its facts still. Even if not employees, if crowd workers are still workers the relationship will often be sufficiently akin to employment to give rise to VL. 
• As a matter of policy this seems right. As Steyn noted in Lister this is a compromise between two conflicting policies- 1) the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant and 2) a hesitation to foist any undue burden on a business enterprise. The average worker possibly on minimum wage will not be an attractive defendant, the billion dollar tech company will. 

• Cox and Mohamud expand VL. In Christian Brothers Philips declared it 'on the move'. 
• Cox concerns the first part of the test, Mohamud the second. 
• JGE v Portsmouth introduced akin to employment relationship. B need not be paid, or have a contract with A to be VL. 
• Following Lister and Dubai the second stage is close connection. Lister made clear distinction between close connection and mere opportunity to commit a tort. The latter is not enough. Whilst there was liability for the wardens actions, there would not be for the groundskeeper. 
• Lord Reid gave justification in JGE v Portsmouth to three main factors (on previous slide.) He correctly downplayed deep pocket and insurance justifications. Downplayed control saying it isnt realistic in everyday life. 
• The author thinks control is relevant. One has the power to direct exactly how employees carry out work, whereas there is no such right over independent contractors unless it features in the contract. 
• The activities do not need to be commercial or profit making and applies to new and emerging forms of enterprise and employment. Significant for new business models. 
• Mohamud- after this case Court should consider what functions were entrusted to the employee (what was the nature of his job) to be addressed broadly. 

• Also must consider if there was sufficient connection between that and his wrongful conduct to make it right for the employer to be liable under social justice. In this case there was an unbroken sequence of events. Although K was motivated by racism the courts found it reasonable to hold Morrison liable. 
• That case appears to replace close connection test with causal connection test. May need a remoteness test. Mohamud seems to dilute the requirement that the risk of harm must be inherent in the employment. 
• Limits to the causal chain eg Warren v Henleys where the court envisaged a novus actus approach could be applied to the causal chain. 
• Lord Dyson said that to search for certainty and precision in VL is to undertake a quest for a chimaera. 

Sequence in the exam-

• 1) identify the tort
• 2) relationship giving rise to VL
• 3) done in the course of employment (close connection test Lister). 

Liability should be strict but there is sometimes fault- say if they created the risk.

Comparison between Warren v Henleys and Mohamud- 

Warren- broken chain of causation when man left and came back with policeman. The chain was broken by the customer, not the tortfeasor. Can contrast with Mattis. The issue was whether it was in the course of employment- b) unauthorised mode. 

Mohamud- sequence not broken (although maybe when he told the man to get out the car). Maybe a policy decision. The claimant hadnt left. 

Cases are decided on the facts. Would be hard to find a single test. Many different employment relations. 

Fletcher- man hit another man off a bike, whilst wearing his work uniform. Was this in the course of employment? Counsel said he was wearing uniform so anything he did was in the course of employment. 

The uniform is arbitrary, he wasnt wearing it for ideological reasons. Coincidence he had it on still.