Vicarious liability in the case of vans liability for employees unauthorized actions

Vicarious Liability

Advice for Olive, Nicky and Petra

Olive

The issue in this case is that whether Vans2U is liable for the injury to Olive, due to the unauthorised actions of Kate in giving lift to Olive and for stopping at a bar and drinking before proceeding on the delivery route.

For vicarious liability to arise, the employee must have committed a tort and the tort must have been committed in the course of employment. The wrongful act must be authorised by the employer or the employee must have done the authorised act in an unauthorised manner.

In Hilton v Thomas Burton (Rhodes)Ltd., the court held that if the employee was on a frolic of his own when he deviated from the employment route, then the employer will not be liable. The distinguishing fact here from Hilton case is that in Hilton, the employee finished early and then went on to a pub. In this case, Kate had not finished deliveries and the pub was on her route.

In Rose v Plenty, the court has held that employer was liable for the injury caused to a boy who was given lift by the employee, contrary to the employer’s instructions because he was assisting the driver in his duties. In this case, accident happened while Kate was in the process of delivering parcels (however in an unauthorised manner), therefore, she can be said to be acting within the course of the employment.

As per the test laid down in Limpus v London General Omnibus if the employee was in the process of performing an authorised act when the tort occurred, then the employer will be vicariously liable for the tort, even if the employee had performed the authorised act in an unauthorised manner.

Olive can take action against the company Vans2U.

1. Storey v Ashton, (1869) L. R. 4 Q B 476.
2. M Lunney and K Oliphant, Tort Law: Text and Materials (Oxford: Oxford University Press 2013) 838.
3. [1961] 1 WLR 705.
4. Rose v Plenty [1976] 1 WLR 141
5. (1862) 1 H&C 526.

Nicky

Len’s actions in giving a lift to Nicky, a schoolgirl and then sexually molesting her are not authorised by the employer. Therefore, Len is not acting within the scope of his employment. Generally, even where the employee does an authorised job in an unauthorised way, the employer would be liable as this is considered to be within the scope of employment. However, recent case law suggests that even if an employee has acted outside the scope of employment, the employer may still be vicariously liable for the tort of the employee, if there is a close connection between the tort and the powers or functions given to the employee by the employer. In Lister v Hesley Hall Ltd, the boarding house authorities were held to be vicariously liable for the sexual abuse suffered by the students at the hands of the warden, even though the warden was obviously not given such an authority by the boarding house, on the principle that there was a close connection that gave rise to such liability. In the present case, the close connection test can be used because Len has been given a vehicle by the company and the authority to drive it. Using this, Len has managed to give Nicky a lift to a secluded spot and then molested her.

Nicky is therefore advised to take the action against the company under the principle of vicarious liability.

Petra

In this scenario, Vans2U may argue that Marco is not their employee because he uses his own car for deliveries and pays his own tax and there is no contract of service between them and Marco. If Marco is self-employed, then Vans2U will not be liable for the tort because vicarious liability arises for the torts of the employees. A person can only be said to be self-employed if he is working on his own account. In Autoclenz v Belcher, the Supreme Court held that a person had to have some business interest in the work in order to be self-employed. These aspects are not seen in Marco’s relationship with Vans2U.

At the same time, Marco does wear the uniform of the company, is told by Jim which deliveries to be made and has to be available throughout the weekends for deliveries. Therefore, even if there may not be a contract of employment between Marco and Vans2U, he may be considered to be an employee of the company if he is being controlled by the company.

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1. Warren v Henleys [1948] 2 All ER 935.
2. [2001] UKHL 22.
3. Vera Bermingham, Carol Brennan, Tort Law Directions (5th Edition, Oxford: Oxford University Press 2016) 236.
4. Hugh Collins, Employment Law (Oxford: Oxford University Press 2010) 641.
5. [2011] UKSC 41.

In Ready Mixed Concrete (Southeast Ltd) v Minister of Pensions and National Insurance, the court held that if the employer has a certain level of control over the individual, then the individual is an employee. Control was defined in Ready Mixed case as the authority of the employer to decide the thing to be done, the manner for doing it, and the the time and place for doing it. These aspects of control are seen in Marco’s relationship with Vans2U.

In this case, Petra is advised to take an action for vicarious liability against Vans2U because Marco is an employee of the company and he has caused an injury to Petra during the course of employment. Marco had negligently dropped a box on Petra’s foot injuring her toes, therefore she can take action against Vans2U for personal injury.

Conclusion

As discussed in the essay, action in vicarious liability arises as against the employer where the tort is committed by the employee in the performance of his functions. Thus, where the tort is committed while the employee in engaged in the course of his employment, the employer will also be vicariously liable for the same. This does not supplant the employee’s liability but supplements it with the secondary liability of the employer.

Vans2U can be sued by Olive, Nicky and Petra for the torts committed against them by the employees of the company.

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Bibliography

• Bermingham V and Brennan C, Tort Law Directions (5th Edition, Oxford: Oxford University Press 2016)
• Collins H, Employment Law (Oxford: Oxford University Press 2010)
• Lunney M and Oliphant K, Tort Law: Text and Materials (Oxford: Oxford University Press 2013)

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1. Ready Mixed Concrete (Southeast Ltd) v Minister of Pensions and National Insurance, (1968) 2 QB 497.
2. Ibid.