VICARIOUS LIABILITY ON THE MOVE!
I hold regular seminars and training on various areas of the law in which I specialise. I held two seminars and one training session on vicarious liability recently. What emerged clearly is the concern over an organisation being vicariously liable for the wrongs of those other than for one’s own employees. Many are relatively familiar with at least the basic concept when considered in the employment arena – employer/employee. However, even when liability is for one’s own employees, some find it unfair when, on the face of it, an employee conducts him/herself in such a way that the organisation does not endorse or condone.
Put simply, person (A) may be held liable to person (C) for the wrongdoings (acts or omissions) of person (B) with whom person (A) has a particular relationship.
The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) the employee's activity is likely to be part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and
(v) the employee will, to a greater or lesser degree, have been under the control of the employer.
In this case the nightclub was held to be vicariously liable for the doorman who worked for the agency – not the nightclub – that the nightclub had engaged for security purposes. It was held that, although the doorman (who had punched a customer) was not the nightclub’s employee, his work made him part of the organisation and he was effectively under the control of the nightclub.
Under statute prisoners are to undertake useful work. Obviously, such prisoners are not employees of the MoJ. However, the MoJ was held vicariously liable for a prisoner whose negligent act whilst undertaking paid kitchen work caused injury to a prison’s catering manager.
Applying the ‘close connection’ test, Morrison was held vicariously liable for the acts of its employee who had verbally and physically assaulted a customer in an unprovoked attack whilst also asking the customer to leave its premises. In this case the court considered the employee’s job and ‘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.’ It was the employee’s job to attend to customers and to respond to their inquiries. The court held that, ‘His conduct…was inexcusable but within the “field of activities” assigned to him.’ Regarding his conduct during asking the customer to leave the premises (following the customer to his car and punching him), the court held, ‘This was not something personal between them; it was an order to keep away from his employer’s premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer’s business.’
To add to the mix, in this case two parties were held to be vicariously liable to the same person at the same time. “In summary, therefore, there has been a long-standing assumption, technically unsupported by authority binding this court, that a finding of dual vicarious liability is not legally permissible. An assumption of such antiquity should not lightly be brushed aside, but the contrary has scarcely been argued and never considered in depth. This is not surprising, because in many, perhaps most, factual situations, a proper application of the [Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Limited (1947)] principles would not yield dual control, as it so plainly does in the present case. I am sceptical whether any of the cases from this jurisdiction which I have considered would, if they were re-examined, yield dual vicarious liability. Even [Mileham v St Marylebone Borough Council and Latter (1903)] is not transparent,” May LJ.
As Lord Phillips said at para. 19 in Various Claimants v Catholic Child Welfare Society , “The law of vicarious liability is on the move.”