Vicarious liability in English law
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Vicarious liability in English law is a doctrine of
Justification for such wide recovery has been made in several areas. The first is that, as is common in tort law,
In 2016, the Supreme Court judgment in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11[7] was handed down, with Lord Toulson giving the lead judgment. Lord Toulson held that the question of whether an employer was vicariously liable "in the simplest terms,” involved the consideration of two matters. The first question is what functions or “field of activities” had been entrusted by the employer to the employee. The second question is "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 under the principle of social justice which goes back to Holt CJ” [8]
In 2020, the Supreme Court had a further opportunity to consider the principles underpinning vicarious liability in the case of WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12.[9] In that case, a senior auditor employed by Morrisons had been asked to provide the supermarket's personnel records to their auditors KPMG. Whilst doing so, the employee surreptitiously downloaded the personnel files of 126,000 employees and uploaded it to an internet file sharing site. 9,263 employees and former employees of Morrisons then commenced proceedings against the company, alleging breach of statutory duty under s4(4) of the Data Protection Act 1988, misuse of private information, and breach of confidence, on the basis that Morrisons was vicariously liable for the employee's conduct.[8] At first instance and in the Court of Appeal, it was held that Morrisons were vicariously liable, on the basis that
"the tortious acts in sending the claimants’ data to third parties were in our view within the field of activities assigned to him by Morrisons."[10]
Lord Reed held that whilst the judge at first instance and Court of Appeal had “applied what they understood to be the reasoning of Lord Toulson in Mohamud [2016] AC 677” they had “misunderstood the principles governing vicarious liability in a number of relevant respects” which if correct would have constituted “a major change in the law.”
Lord Reed cited the judgment of Lord Nicholls of Birkenhead Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 [11] with approval, which he summarised as:
"the wrongful conduct must be so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment"
but he stressed:
"The words “fairly and properly” are not, therefore, intended as an invitation to judges to decide cases according to their personal sense of justice, but require them to consider how the guidance derived from decided cases furnishes a solution to the case before the court. Judges should therefore identify from the decided cases the factors or principles which point towards or away from vicarious liability in the case before the court, and which explain why it should or should not be imposed."
Consequently, as Barrister Kevin Holder explained:[8]
"the question was whether the employee's wrongful disclosure of data was so closely connected with the collation and transmission of the data to KPMG that, for the purposes of the liability of his employer to third parties, the disclosure may fairly and properly be regarded as made by him while acting in the ordinary course of his employment."
Lord Reed held:
"In the present case, it is abundantly clear that the employee was not engaged in furthering his employer's business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking vengeance for the disciplinary proceedings some months earlier. In those circumstances, applying the test laid down by Lord Nicholls in Dubai Aluminium in the light of the circumstances of the case and the relevant precedents, his wrongful conduct was not so closely connected with acts which he was authorised to do that, for the purposes of Morrisons’ liability to third parties, it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment."
Developments in establishing liability
An
Historical tests centered around finding control between a supposed employer and an employee, in a form of master and servant relationship.
"...a servant is a person who is subject to the command of his master as to the manner in which he shall do his work."
The control test effectively imposed liability where an employer dictated both what work was to be done, and how it was to be done.[18] This is aptly suited for situations where precise instructions are given by an employer; it can clearly be seen that the employer is the causal link for any harm which follows.[19] If on the other hand an employer does not determine how an act should be carried out, then the relationship would instead be one of employer and independent contractor.[16] This distinction was explained by Slesser LJ:
It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the contract. The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor.[20]
In recent years, as the duties of employees have grown ever more specialised and far reaching, the control test has seen less primary use in establishing liability.[19] It is difficult to state for example that a hospital administrator controls the method and actions of a professional doctor, despite liability having been clearly established in such cases.[21] Different formulations of the test have been proposed, in an attempt to rectify these problems. One such formulation focuses on the ability of an employer to specify where and when tasks be carried out, and with whose tools and materials.[22]
Other tests of employment have focused on different contractual and external factors.
As can be noted, liability is generally not extended to the acts of independent contractors.
The connection of torts to employment
Once it is established that the sufficient relationship of employer and employee exists, it is necessary that any tort be committed in the course of employment.
The surrounding circumstances of wrongdoings are often important in deciding whether an act is in the course of employment or not. For example, where a professional
There have been contrasting judgments where employees have given lifts in their vehicles, during hours of employment, as to whether their employers can be vicariously liable. Two similar cases demonstrate this problem. The first, Conway v George Wimpey & Co Ltd
"The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable."[50] |
Joel v Morison [1834] EWHC KB J39 |
Additional problems have arisen when attempting to establish where detours and leave from duty take an employee out of the course of his employment.[51] One idea which is used in this area is that an employer will only be found liable where an employee is going about his business in a standard way. For example, a minor detour would not take an employee out of the course of his employment, but a 'frolic of his own', which did not at all involve his duties, would.[52] Journeys to and from work, and whether these are regarded as in the course of employment, were considered in Smith v Stages,[53] where Lord Lowry established several factors for determining liability. Ordinarily, employees will not be in the course of employment travelling to and from work, unless their transport is provided by their employer.[54] However, travelling to an alternative place of work or to a workplace, during the employer's time, will be in the course of employment.[54] Where course of employment generally begins with travelling to work has been established in the case of Compton v McClure.[55] Here, an employer was found liable for the negligent driving of an employee, who, in an effort to clock in on time, injured another employee at the place of employment.[56] It was stated that the 'least artificial place' to establish employment began was at the gates of the employer's factory, where they established speed limits, and supervised conduct.[57]
Intentional torts of employees
Historically, most actions alleging vicarious liability for intentional torts failed, primarily on the grounds that no employer employs an individual to be dishonest, or to commit crimes.
Assault
Unlike other intentional torts, which tend to be
Theft
As noted, liability for theft has been found not primarily under the principles of course of employment, and vicarious liability, but via a non-delegable duty of employers to ensure that a third party's goods are kept safe.[72]
Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show - and the burden is on him to show - that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.[73]
Vicarious liability for theft has also been found due to poor selections of employees by an employer, as in Nahhas v Pier House Management.[74] Here, the management company of a luxury block of flats employed a porter, who was an 'ex-professional thief', to manage their building. A tenant of the building entrusted him with her keys, and was subsequently robbed of expensive jewellery.[75] The management company were found to have been negligent in hiring the porter, having not carried out sufficient checks on his background, address, or obtaining a written reference. It has been stated it is unlikely that as a general rule, where there are proper checks and systems to prevent such incidents, liability would be found; it is in the interests of society to allow rehabilitation of offenders.[76]
Sexual assault
Until recently, it was not considered that an employer could be vicariously liable for sexual assault, despite the particular vulnerability of children, and special care that must be taken in selecting employees.
The reality was that the county council were responsible for the care of the vulnerable children and employed the deputy headmaster to carry out that duty on its behalf. And the sexual abuse took place while the employee was engaged in duties at the very time and place demanded by his employment. The connection between the employment and the torts was very close.[80]
In overruling T v North Yorkshire CC, the Lords established that the relative closeness connecting the sexual abuse and the warden's duties established liability.[62] It was of importance however that the warden's duties were closely linked to the abuse. The mere opportunity to abuse children was not the reason for liability; it has been suggested that if it were a groundsman who had carried out the abuse, it would not have resulted in liability.[81]
Fraud
Employers have been responsible for the
As with other intentional torts, such liability was extended following Lister v Hesley Hall Ltd, to cover any fraud which is closely related to an employee's employment. The first case of fraud to be decided under this authority was
Employers and insurers
"Employers' Liability Insurers agree that they will not institute a claim against the employee of an insured employer in respect of the death of or injury to a fellow-employee unless the weight of evidence clearly indicates (i) collusion or (ii) wilful misconduct on the part of the employee against whom a claim is made."[91]
As such, indemnities are not pursued from employees. The decision in Lister was eventually reversed by the dicta of
See also
Notes
- ^ a b Markesinis, Johnston, Deakin, p. 665
- ^ Lister v Hesley Hall Ltd [2002] 1 AC 215
- ^ Steele, p. 578
- ^ [2012] UKSC 5
- ^ Steele, p. 567
- ^ Flannigan, p. 26
- ^ "JUDGMENT - Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent)" (PDF). Retrieved 28 December 2023.
- ^ a b c Kevin Holder, "Data Protection and Vicarious Liability", 1st April 2020
- ^ "JUDGMENT - WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents)" (PDF). Retrieved 28 December 2023.
- ^ "WM Morrison Supermarkets PLC v Various Claimants [2018] EWCA Civ 2339 (22 October 2018)".
- ^ "Dubai Aluminium Company Ltd v. Salaam [2002] UKHL 48 (5 December 2002)".
- ^ [1969] 2 QB 173, p. 184
- ^ [1984] ICR 365, p. 369
- ^ Cooke, p. 463
- ^ Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213
- ^ a b Markesinis, Johnston, Deakin, p. 668
- ^ Yewens v Noakes (1880) 6 QBD 530
- ^ Flannigan, p.31
- ^ a b Flannigan, p. 38
- ^ [1934] 1 KB 191, p. 196
- ^ Gold v Essex County Council [1942] 2 KB 293
- ^ Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497
- ^ Stevenson Jordan & Harrison v McDonnell & Evans [1952] 1 TLR 101
- ^ Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173
- ^ Markesinis, Johnston, Deakin, p. 671
- ^ Lee Ting Sang v Chung Chi-Keung [1990] IR LR 236
- ^ Markesinis, Johnston, Deakin, p. 695
- ^ a b McKendrick, p. 770
- ^ Ellis v Sheffield Gas Consumers Co (1853) 2 E & B 767
- ^ Markesinis, Johnston, Deakin, p. 696
- ^ Pinn v Rew (1916) 32 TLR
- ^ Gray v Pullen (1864) 5 B&S 970
- ^ Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191
- ^ Penny v Wimbledon Urban District Council [1898] 2 QB 212
- ^ Johnson v BJW Property Developments Ltd [2002] EWHC 1131
- ^ Markesinis, Johnston, Deakin, p. 678
- ISBN 978-0-421-53350-9., p. 443
- ^ Markesinis, Johnston, Deakin, p. 683
- ^ Limpus v London General Omnibus Company (158 ER 993
- ^ London General Omnibus Company [1900] 2 QB 530
- ^ 158 ER 993, p. 999
- ^ [1900] 2 QB 530, p. 534
- ^ Gravil v Carrol [2008] EWCA Civ 689
- ^ Century Insurance Co v Northern Ireland Road Transport Board [1942] AC 509
- ^ Conway v George Wimpey & Co Ltd [1951] 2 KB 266
- ^ [1951] 2 KB 266, p. 268
- ^ Rose v Plenty [1976] 1 WLR 141
- ^ Cooke, p. 434
- ^ [1976] 1 WLR 141, p. 144
- ^ EWHC KB J39, at 5
- ^ Markesinis, Johnston, Deakin, p. 685
- ^ Joel v Morison [1834] EWHC KB J39
- ^ Smith v Stages [1989] AC 928
- ^ a b [1989] AC 928, p. 956
- ^ Compton v McClure [1975] ICR 378
- ^ [1975] ICR 378, p. 379
- ^ [1975] ICR 378, p. 388
- ^ Markesinis, Johnston, Deakin, p. 687
- ^ Morris v CW Martin & Sons Ltd [1966] 1 QB 716
- ^ [1966] 1 QB 716, p. 732
- ^ Bazley v Curry (1999) 174 DLR
- ^ a b [2001] UKHL 22, at 24
- ISBN 978-0-19-929166-3., p. 613
- ^ [2002] UKHL 48, at 26
- ^ Poland v Parr & Sons [1927] 1 KB 236
- ^ [1927] 1 KB 236, p. 242
- ^ Smith v North Metropolitan Tramways Co (1891) 55 JP 630
- ^ Warren v Henlys Ltd [1948] 2 All ER 935
- S2CID 145272812., p. 53
- ^ [2003] 1 WLR 2158
- ^ Steele, p. 587
- ^ Devonshire, Peter (1996). "Sub-bailment on terms and the efficacy of contractual defences against a non-contractual bailor". Journal of Business Law (July)., p. 330
- ^ [1966] 1 QB 716, p. 726
- EGLR160
- ^ [1984] 1 EGLR 160, p. 160
- ^ Markesinis, Johnston, Deakin, p. 688
- Lord Steynduring his judgment of Lister v Hesley Hall Ltd, [2001] UKHL 22, at 25
- ^ T v North Yorkshire CC [1999] LGR 584
- ^ Markesinis, Johnston, Deakin, p. 690
- ^ [2001] UKHL 22, at 25
- ^ Levinson, Justin (2005). "Vicarious liability for intentional torts". Journal of Personal Injury Law (4)., p. 305
- ^ Barwick v English Joint Stock Bank (1866-67) LR 2 Ex 259
- ^ Lloyd v Grace, Smith & Co [1912] AC 716
- ^ a b Markesinis, Johnston, Deakin, p. 689
- Lord Keith, in Armagas Ltd v Mundogas SA[1986] AC 717, pp. 781-782
- ^ Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48
- ^ Lister v Romford Ice and Cold Storage Co [1957] AC 555
- ^ Williams, p. 220
- ^ Markesinis, Johnston, Deakin, p. 694
- ^ Williams, p. 221
- ^ Morris v Ford Motor Co Ltd [1973] QB 792, at 799
References
- Articles
- Yale Law Journal105
- Flannigan, Robert (1987). "Enterprise Control: The Servant-Independent Contractor Distinction". The University of Toronto Law Journal. 37 (1): 25–61. JSTOR 825661.
- McKendrick, Ewan (1990). "Vicarious Liability and Independent Contractors: A Re-Examination". The Modern Law Review. 53 (6): 770–784. .
- Williams, Glanville (1957). "Vicarious Liability and the Master's Indemnity". The Modern Law Review. 20 (3): 437–446. .
- Books
- Cooke, John (2005). Law of Tort. ISBN 978-1-4058-1229-0.
- Deakin, Simon; Johnston, Angus; Markesinis, Basil (2007). Markesinis and Deakin's Tort Law. ISBN 978-0-19-928246-3.
- Steele, Jenny (2007). Tort Law: Text, Cases, & Materials. ISBN 978-0-19-924885-8.