Exploring Employer-Employee Relationships

Introduction

The concept of vicarious liability arises to allow the shift of liability in case when an individual performs a wrongful act in breach of a duty or any negligent act that gives rise to a misdeed. Especially in the context of an employer and employee relationship such a shift in liability is allowed and acknowledged under the tort law.There are a few tests to ascertain whether vicarious liability can be imposed, Firstly, if there is sufficient control exerted by the employer on the employee within the course of employment. Secondly, if the employer has ‘deep pockets’ to pay compensation in case of any damages that may arise, Thirdly, liability of the enterprises was strengthened by the test of integration with respect to employers and independent contractors. Fourthly, the subject matter of the employment through the ‘Economic reality test’ in the case of Ready Mixed Concrete Ltd v Minister of Pensions gauging the skill, consistency etc. The presence of a ‘sufficient act’ that is tortious in nature that leads to a liability must be present and it shall be ascertained through the immunity gained by the wrong-doer and the superior party shall not be relieved of the liability.

Implied authority executed by the master can also be present wherein the acts are conducted in an unauthorized manner, then that shall not be covered under the course of employment.It is further reviewed whether a sense of 'reasonable care' was present on the part of the employer, and if such reasonable care is established, the common law allows the employer to recover certain amount as a contribution for the wrong committed or in some cases, the employee can be held completely liable for the tort, thus shifting the responsibility to the employee to indemnify the wrong. In contradictory to certain laws followed in Australia, the employer are stripped off such rights and in no way can the employee be held responsible within a employment contract.

Development in Vicarious Liability

The principles of vicarious liability has undergone massive change but special development has seen to take in Various Claimants case, broadening and identifying the ‘close connection’ test. The criterion established in Various Claimants case had been applied in Cox v. Ministry, in adjudging that there was sufficient connection between the prisoner causing injury to another prisoner. However, significant development was seen in the case of Mohamud v WM Morrison Supermarkets plc, despite establishing a close relationship between Mr. Mohmud and Mr.Khan who was an employer of the supermarket and sufficient consideration must be placed on the nature of the job taking into consideration whether, the unlawful act is closely connected to the employment or not. The close connection test was first used in the case of Lister v Hesley Hall Ltd [2001] UKHL 22 and following the ‘Salmond Test’, two elements were required to establishe vicarious liability; Firstly, the unlawful act should either be autorised by the employer or an unauthorized means has been taken to achieve a lawful act and secondly, an authorised act is done in an unlawful manner . Therefore, following the Mahmud’s case, considering the ‘field of activities’, an employer will be held liable if the employee acts in a way that is not the primary requirement within the course of employment.This particularly broadened the scope of vicarious liability to a great extent.

Non-Delegable duty

Non-delegable duties are closely connected to the concept of vicarious liability, branching out from the concept of nuisance, however, there is a certain imposition of liability and duty on the defendant since the common law widely accepts that a duty to provide care cannot be outsourced to a third party or an independent contractor. Non-delegable duty depends largely on the individual relationship between the defendant and the claimant and the duty of care remains an essential and primary quotient differing sufficiently from vicarious liability, essentially a secondary liability.

The Supreme Court of UK has moved a long way in widening the ambit in interpreting the common law attached with non-delegable duties and vicarious liability. The non-delegable duty cannot be discharged by outsourcing the responsibility to an independent contractor whereas, in case of a vicarious liability functions as an exception to the fundamental principle of vicarious liability and the defendant is held liable even for negligent acts not directly committed by him. This digression has mostly been discussed in the case of Woodland v Swimming Teachers Association and others, and Armes v Nottinghamshire County Council .

Non-Delegable duty: Interpretation and development

In the former case, Woodland v Swimming Teachers Association and others a student had suffered significant brain injury during a swimming lesson that was participated as per the school curriculum which was essentially managed by the Essex County Council. The swimming lessons were carried on separately under the guidance of a local authority and by their own swimming teacher. The swimming teacher was employed by an independent contractor. It was initially held that the school had no obligation and did not ow any non-delegable duty of care. As the question was brought before the Supreme court as to whether the defendant had any responsibility and was under any duty to take care of the student, the Supreme court allowed the appeal and held that it was the School's assumed responsibility that as the swimming lessons were provided in school hours as a part of the school curriculum, therefore, the local authority who was immediately in charge of overlooking the lesson owes a duty of reasonable care towards the claimant, thus making them liable would be 'Just, fair and reasonable'. Thus, a non-delegable duty was interpreted and identified more so in the case by the Supreme Court as;

However, in the case of Armes v Nottinghamshire County Council [2017] UKSC 60, whether the local authorities that decide on placing claimant in foster homes, where the claimant was sexually abused by the foster parents would be held liable or not. The High court, the court of Appeal and the Supreme Court unanimously acknowledged that the social workers were not negligent even though the claimant demanded that the local authority should be vicariously liable for the heinous acts committed by the foster parents and claimed that this local authority owed a non-delegable duty but such was not upheld by either of the courts. As per Lord Reed's judgment, it was held that making the local authorities responsible for such wrongful acts would bring in more complexity as they would constantly be liable for all acts done by the children in relationship to the foster parents or in case of their own parents, unnecessarily bringing about complexity. Even though the Supreme Court allowed compensation for the injured victim as per the decision in Various Claimants v Institute of the Brothers of the Christian Schools.

Conclusion

As per the interpretation of the courts, ultimate goal of vicarious liability would be to provide remedy as in the case of Bazley v. Curry or in Cox v. Ministry of Justice, it was held by Beatson LJ that the non-delegable duties and agency must be resorted to if vicarious liability is frustrated. Even, the case of Woodland, is dependent on non-delegable duties keeping the flaws of vicarious liability at bay. Ultimately widening the scope in Armes case, there is a possible convergence. As per the requirement of the exertion of duty by the Principal needs to be gauged to apply the doctrine of non-delegable duty, therefore acting in restriction.

Bibliography

JW Neyers , ' A Theory of Vicarious Liability ' ( 2005 ) 43 Alberta Law Review 287, 294 : '

Giliker, P. (2015). Vicarious liability, non-delegable duties andteachers: can you outsource liability for lessons? Tottel's Journal of Professional Negligence, 31(4), 259-275. http://www.bloomsburyprofessional.com/uk/journal/journal-ofprofessional-negligence-17466709/

C. R. Kinsey Jr., Torts -- Nondelegable Duty -- Direct and Vicarious Liability for Negligence, 44 N.C. L. Rev. 242 (1965).Available at: http://scholarship.law.unc.edu/nclr/vol44/iss1/27).

Aaron Yoong, “Challenges in the Evolution of the Doctrine of Non-delegable duty” (2017) 25 Tort L Rev 1

M Lunney and K Oliphant, Tort Law: Text and Materials (Oxford: Oxford University Press 2013).

Website

Low Kee Yang and Joel Fun Wei Xuan , Law Gazette, “ Non-Delegable duty, Vicarious liability and Agency- Moving towards convergence”, < https://lawgazette.com.sg/feature/non-delegable-duty-vicarious-liability-and-agency-moving-towards-convergence/> accessed on 12th April, 2021

Cases

Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48

Armes v Nottinghamshire County Council [2017] UKSC 60

Woodland v Swimming Teachers Association and others [2011] EWHC 2631 (QB)

Bazley v Curry [1999] 2 SCR 534.

Cox v Ministry of Justice [2014] 3 WLR 1036

Ready Mixed Concrete Ltd v Minister of Pensions, 1968] 2 QB 497

Broom v Morgan [1953] 1 QB 597.

Mohamud v WM Morrison Supermarkets plc 2016] UKSC 11.

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