6/14/2013WHAT IS VICARIOUS LIABILITY VICARIOUS LIABILITY • Employers are vicariously liable for the torts of their employees that are committed during the course of employment. What is Vicarious Liability • For instance, A is liable to C for the damage or Justification for the Liability injury suffered by C due to the negligence Elements of Liability committed by B, A’s employee. In the Course of Employment Dr. Noraiza Abdul Rahman 2 JUSTIFICATION FOR THE LIABILITY ELEMENTS OF LIABILITY • According to Michael A. Jones, Textbook on Torts, 2000, several reasons have been advanced as a justification for the imposition of vicarious liability: (1) Was a tort – (1) The master has the 'deepest pockets'. The wealth of a committed? defendant, or the fact that he has access to resources via (2) Was the insurance, has in some cases had an unconscious influence on the development of legal principles. tortfeasor an – (2) Vicarious liability encourages accident prevention by employee? giving an employer a financial interest in encouraging his (3) Was the employee employees to take care for the safety of others. acting in the course of – (3) As the employer makes a profit from the activities of his employees, he should also bear any losses that those employment when the activities cause. tort was committed? Dr. Noraiza Abdul Rahman 3 Dr. Noraiza Abdul Rahman 4 ELEMENTS OF LIABILITY ELEMENTS OF LIABILITY Wrongful or Tortious Act • These questions lead to THREE requirements • The Court will first and foremost determine that must be satisfied in order to impose whether a tort has been committed. vicarious liability: – There must be a wrongful or tortious act – There exists a special relationship – The tort is committed within the course of employment Dr. Noraiza Abdul Rahman 5 Dr. Noraiza Abdul Rahman 6 1 order or require what is to be done. whereas. but a ship's pilot." within the meaning which an ordinary person would give under the words?'" Dr. but people who have a 'contract 1 TLR 101: 'It is often easy to recognise a contract of service when you see it. Noraiza Abdul Rahman 12 2 . and a newspaper contributor are employed under a contract for services. – In Collins v Hertfordshire County Council [1947] KB – There are many contracts of service where the 598. a – The courts then recognised that a single test was man is employed as part of the business. Noraiza Abdul Rahman 10 ELEMENTS OF LIABILITY ELEMENTS OF LIABILITY Special Relationship Special Relationship – One feature which seems to run through the • Multiple Test instances is that. a taxi-man. people who have a 'contract • Organisation Test – This test was proposed by Lord Denning in Stevenson. Dr. – All tests are open to interpretation and there is no conclusive or definitive test. Noraiza Abdul Rahman 8 ELEMENTS OF LIABILITY ELEMENTS OF LIABILITY Special Relationship Special Relationship • In other words.' factors in the relationship should be considered. Noraiza Abdul Rahman 7 Dr. whereby all is only accessory to it. while in the other – He went on to say: "One perhaps cannot get much case he can not only order or require what is to be beyond this 'Was the contract a contract of service done. Noraiza Abdul Rahman 11 Dr. Hilbery J said: "The distinction between a master cannot control the manner in which the contract for services and a contract of service can be work is to be done. Somervell LJ – This was the traditional test pointed out that this test is not universally correct. of service' (an employment contract) are Jordan and Harrison Ltd v McDonald and Evans [1952] employees. but difficult to say wherein for services' (a service contract) are the difference lies. but how it shall be done. the Court of Appeal said no single test is absolute. under a contract of service. not enough to determine employment status so under a contract for services. his work. Noraiza Abdul Rahman 9 Dr. although the courts developed a multiple test in Ready done for the business. in the case of Hall v Lorimer. Dr. and a reporter on the staff of a newspaper are all employed under a contract of service. is not integrated into it but Mixed Concrete v Minister of Pensions. 6/14/2013 ELEMENTS OF LIABILITY ELEMENTS OF LIABILITY Special Relationship Special Relationship • Control Test – But in Cassidy v Ministry of Health. as in the case of a captain of a summarised in this way: In one case the master can ship. independent contractors. – A ship's master. protection of employer’s • Fraud of the worker (X) • If there is a connection. not 'on a frolic of his own'. • Unauthorised mode of express prohibition (√) (X) doing something (√) • Employee acting on a whether the act is reasonably “incidental” to the • Tort committed in frolic of his own (X) employee's employment duties. it is irrelevant whether property (√) • Commission of theft (X) the employee's act was unauthorised. the question to be asked is firstly. engaged in an intentional and unauthorised wrongdoing. and it is a general rule it will be difficult for the first immaterial whether the wrong committed by the employer to shift responsibility to the temporary employer. employment. 6/14/2013 ELEMENTS OF LIABILITY ELEMENTS OF LIABILITY Special Relationship The Course of Employment • It has been suggested that hospital’s liability for the torts committed by its • For an employer to be held liable. unconnected with his employment. it is important to note that an • Important in this context is the case of Lister v employer cannot avoid liability if an employee Hesley Hall Ltd. acts in a way that could be described as • This case establishes that an employer cannot “incidental” to his employment and the duties avoid liability by showing that an employee to which he is entrusted with. • Worker delegating his • Sexual abuse by duty (X) employee (√) Dr. Noraiza Abdul Rahman 16 ELEMENTS OF LIABILITY ELEMENTS OF LIABILITY The Course of Employment The Course of Employment • Therefore. Noraiza Abdul Rahman 14 ELEMENTS OF LIABILITY ELEMENTS OF LIABILITY The Course of Employment The Course of Employment • Recently. the important factor in establishing liability in far-reaching circumstances on the issue vicarious liability is the connection with the of whether the wrong was committed “in the “course of employment.” • If an employer lends an employee to -Hospital Staff another employer on a temporary basis. Dr. the courts have been willing to impose • Thus. as -Lending a Staff • This criteria is a question of fact. that the servant the employee acted in a way that was must be engaged on his master's business. Dr. Noraiza Abdul Rahman 15 Dr. although acted “on a frolic of his own. the performance of his benefit (X) job (√) • Acting against employer’s whether the act complained of was committed “in the course of employment” and secondly.” course of employment. Noraiza Abdul Rahman 17 Dr. situation if it can be shown that an employee • There is no single test for this. Noraiza Abdul Rahman 13 Dr. if Parke B famously stated in Joel v Morison (1834) 6 C&P 501 at 503. the wrong employees rests on the breach of its Grey Areas: must be committed “within the course of primary duty to patients. in establishing whether vicarious • Carelessness of worker in • Worker acting for his own liability exists. Noraiza Abdul Rahman 18 3 .” or in other words.” • However. • An employer will only be liable for torts which the employee commits in the course • An employer will only avoid liability in this of employment. employee was authorised or not. 6/14/2013 ELEMENTS OF LIABILITY LIABILITY OF INDEPENDENT The Course of Employment CONTRACTOR • Vicarious liability for • Location or premises on breach of statutory duty which the injury occurs An employer may however be (√) (√) liable for the tort committed by • Time and its relevance his independent contractor if in determining the the employer is deemed to have committed a tort himself course of employment (√) Dr. • The question is whether the agent is acting on behalf of. but not for the THE END acts of his employees or independent contractors. and within the scope of the authority conferred by the principal? Dr. Noraiza Abdul Rahman 19 Dr. Noraiza Abdul Rahman 20 LIABILITY OF AN AGENT • The general principle is that an employer will be vicariously liable for the acts of his agents who are also his employees. Noraiza Abdul Rahman 21 Dr. Noraiza Abdul Rahman 22 4 .