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Vicarious Liability Tort Law Essay

  1. In order to advise Freddy Hobart Ltd, one would have to explore the rules of vicarious liability of an employer and case law which may apply. Vicarious liability arises where there is a relationship between the tortfeasor and the party who becomes vicariously liable which justifies giving the latter responsibility for the acts of the former[1]. This means that a victim of a tort, in the present scenario being Flora, can claim compensation from the employee’s company if it is proven that the tort occurred as a result of the employee’s fault when he was in the course of his employment.
In order for Freddy Hobart Ltd to be vicariously liable for Jameel’s negligence, three requirements will need to be satisfied. First, there must be an employer/employee relationship between Freddy Hobart Ltd and Jameel. Employers are only vicariously liable for the acts of their employees as is shown in the case of Ready Mixed Concrete v Minister of Pensions[2]; an employer is not liable for the act of its independent contractors as is illustrated in the case of Honeywill and Stein v Larkin[3]. This requirement has clearly been met since it is mentioned that Jameel was under a contract with Freddy Hobart Ltd with all the rights and duties of a full employee. Second, it must be established that Jameel has committed a tort. We are told that the lorry crashed because of Jameel’s negligent behaviour. So it would appear that this requirement has also been met. The third requirement is more complex. It must be established that Jameel’s negligence was engaged in while he was in the course of his employment with Freddy Hobart Ltd. If this requirement is not met, then Freddy Hobart Ltd will not be vicariously liable but Jameel will be personally liable in respect of Flora as was shown in Beard v London General Omnibus Co[4]. There are two tests used by the court to determine if the third requirement has been met; namely, the Salmond test as established in Salmond’s Law of Torts[5] and the ‘close connection’ test as established in Lister v Hesley Hall Ltd[6]. Where the tort is committed intentionally, the latter test is preferable. However as we are dealing with negligence, we will consider both tests. Under the Salmond test, the third requirement will be met if the tortious act was either a wrongful act authorised by the employer or a wrongful and unauthorised mode of doing some act authorised by the employer[7]. Jameel’s act of negligence will not come within the first part of the Salmond test but it could come within the second part. He is authorised to drive the lorry to make deliveries. The problem which arises is that instead of being accompanied by another company driver, he took his niece, Flora with him. He moreover drove for seven hours without a break despite having company regulations which clearly states that company drivers should alternate driving shifts of no more than four hours each. In Century Insurance Co v Northern Ireland Road Transport Board[8], it was held that the fact that an employee was doing his job negligently does not necessarily take him outside the course of his employment. Again the court will examine all the circumstances. As noted in Cooke, an employer may be vicariously liable for an act if the prohibition applies to the way that the job is done, rather than the scope of the job itself. Similarly in the present scenario, company regulations only mentioned about the way long haul deliveries is to be carried out. The scope of the job was still the same – making deliveries. In Limpus v London General Omnibus[9], the court stated that a bus driver is within the scope of his employment when he races other buses even if he is strictly prohibited from doing so. However in the present scenario, Jameel was not just going about his work. He also planned to visit Scotland with his niece. An important question that arises here is whether or not this act would amount to a ‘frolic’ of Jameel’s that takes him outside the course of his employment. This will be heavily dependent upon the facts of the case. In Storey v Ashton[10], an employer was not held liable when the driver completed his work and then went to visit a relative. This was a new journey which had nothing to do with the employment[11]. Other cases involved in frolics are Harvey v RG O’Dell[12] , Hilton v Thomas Burton Ltd[13]. Similarly, if we apply this principle to our current scenario, it is probable that the court regards Jameel’s journey with his niece as being an independent one outside his course of employment. If such is the case, then Freddy Hobart Ltd is very likely to escape liability in respect of Flora. The second limb of the test has been rejected by the House of Lords in Lister. Modern case law suggests that the second part of the Salmond test may need to be modified to a close connection test. The close connection test asks whether or not the tort was so closely connected with the employee’s employment, that it would be fair and just to hold the employer vicariously liable. Again all the facts are relevant. If Jameel’s contract of work provides that the lorry is only to be used for work-related business, then one might argue that he was not acting within the course of his employment. Finally the court might feel that there was no sufficient closeness between the employment in question and the tort in order to impose liability on Freddy Hobart Ltd.
  1. If Jameel had been accompanied by Barney, then Freddy Hobart Ltd could be vicariously liable for Jameel’s negligence since unlike with Flora, there would have been no ‘frolic’ this time. He would have been acting in the course of his employment when the tort occurred and therefore the three requirements for vicarious liability would have been satisfied. As noted in Cooke, an employer may be vicariously liable for the negligence of an employee which leads to the claimant employee being injured. The employer’s liability here is strict. Unlike the case with Flora, Freddy Hobart Ltd also owes a personal duty of care towards Barney since he is their employee. In Wilsons and Clyde Coal[14], the court stated that this duty is ‘non-delegable’- the employer must provide a competent staff, adequate material, a proper system and effective supervision. In the present scenario, we are not given sufficient information on the experience of Jameel as a driver. Freddy Hobart Ltd may be personally liable in respect of Barney if Jameel is judged as not being sufficiently experienced and Barney is injured as a result. However, one might also argue that since Barney is a fellow driver, should he not have taken the wheel after the four hours. In that situation, it is up to the court to decide whether it is fair and just to impose liability on Freddy Hobart Ltd since it was partly because of Barney’s fault that the tort occurred.

[1] Catherine Elliot and Frances Quinn, Tort Law (9th edition, Pearson Education, 2013) p 377 [2]Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 [3]Honeywill and Stein v Larkin [1934] 1 KB 191 [4]Beard v London General Omnibus Company [1900] 2 QB 53 [5] J Salmond, Law of Torts, (Sweet and Maxwell, 1907) p 83 [6]Lister v Hesley Hall Ltd [2002] 1 AC 215 [7] John Cooke, Law of Tort (11th edition, Pearson, 2013) p 536 [8]Century Insurance Co v Northern Ireland Road Transport Board [1942] AC 509 [9]Limpus v London General Omnibus Co (1862) 1 H&C 526 [10]Storey v Ashton (1869) LR 4 QB 476 [11] Ibid p 537 [12]Harvey v RG O’Dell [1958] 2 QB 78 [13] Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 WLR 705 [14]

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The concept of vicarious liability is that one person has legal responsibility for a tort committed by another person. In an employment scenario for example, an employer will generally be vicariously liable for the negligent acts or omissions carried out by his employee, providing they are carried out in the course of their employment.

The acts for which an employer will be liable are:

  • wrongful acts authorised by the employer, and
  • authorised acts carried out in a wrongful and unauthorized manner.

(Salamond, REF1).

The employer will also be vicariously liable for intentionally wrongful acts carried out purely for an employee’s own benefit where there is a very close connection between the employee’s wrongful acts and the nature of the employment (Lister and others v Hesley Hall Ltd (2001) 2 All ER 769, REF2).

The principle behind this concept is that an individual defendant is very often a “man of straw” and, although he is also liable jointly, he is probably not worth suing. Making the employer, who is likely to be in a stronger financial position responsible for the employee’s actions ensures that a claimant is adequately compensated for any loss he sustains. This is the ‘social convenience’ Lord Pearce speaks of, and is such because the Employer may bear little or no blame for the acts committed.

It is however thought to be simpler for the Employer to obtain liability insurance to cover the cost of potential claims, and this makes it a convenient solution. The cost of this insurance can be passed on to an employer’s customers through pricing of goods – striking a balance between the ‘social interest’ in providing the innocent party with a recourse without placing undue financial burden on businesses (Fleming, REF3).

There are also moral considerations to the concept – an employer profits from his business and therefore ought to bear any loss resulting from business activities.

Practically, employers are encouraged to take an interest in responsibly employing, training and supervising workers properly to avoid potential claims. This point would appear to offer the most logic for the concept of vicarious liability. In the Lister case, the line of reasoning was that the defendants owed a duty of care to the boys to take reasonable steps to ensure their safety and that this duty was non-delegable in nature. The job was entrusted to Mr Grain as Warden who abused the position. Perhaps proper vetting of the employee, supervision and a closer system of checks would have avoided the situation, which was reasonable to expect of the employers.

Lord Pearce in Imperial Chemical Industries calls it rough justice, as the workers involved were “trained, trusted, certificated men, and it would have been absurd to have someone to watch over them”. The employer in this instance did everything possible to ensure the safety of the project undertaken.

Although it does seem rough justice, practically there are two potential innocent parties – the employer who may have done everything to avoid the employee’s negligence, and the innocent victim. The employer is clearly in a better position to insure and protect against claims, and the risk should fall on him. Furthermore, Lord Pearce says “the master has an important duty of care for his servant; in general he has more skill in organisation, a wider foresight and more opportunity for innovation.” It follows that an employer is in a strong position to supervise and train (and dismiss where necessary) his staff accordingly and to take responsibility when his staff cause damage in the course of furthering his business.

References

  • Salamond & Houston on Torts (21st Edition) p.443 in Hepple, Howarth & Matthews – Tort Cases & Materials (5th Edition – 2000) p.1045, Butterworths, London
  • Lister and others v Hesley Hall Ltd (2001) 2 All ER 769 in W300: Agreements, Rights and Responsibilities (2003), Resource Book 3, Reading 6 pp. 20-24, Open University, Milton Keynes
  • Fleming, The Law of Torts (9th Edition, 1998, pp.4-9-10) cited in Lister and others v Hesley Hall Ltd (2001) 2 All ER 769 in W300: Agreements, Rights and Responsibilities (2003), Resource Book 3, Reading 6 pp. 20-24, Open University, Milton Keynes
  • Imperial Chemical Industries v Shatwell (1965) AC 656 found online at Butterworths.com using total search and typing in the case name.
  • Vicarious Liability – Injury Lawyer <http://www.injurylawyer.solutions/vicarious-liability/>

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