Legal Dynamics of Vicarious Liability

Introduction

The law of tort keeps a distinguished law with respect to shift of liability when an individual is held obligated for the mishaps or misdeeds of another, despite the fact that he acts was not solely committed by the individual in question. Widely understood liability is the responsibility of an employer for the acts of his employees, parents and children, master and servant and so and so forth. To resort to this liability few criteria need to be satisfied, like firstly, there must be a relationship of control wherein one person can exercise sufficient control over another, possible in a superior relationship when a tortious act is committed by the inferior party, being controlled by his employer and most importantly the tortious act is to be committed during the course of an employment to hold the master or the employer liable.

Lord Nicholas in the case of Dubai Aluminium Co Ltd v Salaam had explained this phenomenon by stating that the actual policy is based on the presumption of risk in a business involvement to others as well as the employees. The risks that are involved may pose as harmful to others by any acts or misdeeds that may be undertaken by the agents of the business and only when those risks are open to affect general people, it is only natural that the business should take up the responsibility to compensate the person who has been harmed b the acts.

The courts delved deep into the facts of the case where firstly the sole intention lies in establishing the presence of a relationship of control. This relationship must exist in between the tortfeasor and the third party only when the court finds the presence of liability, however through multiple cases, the relationships have been dissected and assented thereto.This vicarious relationship was established in an early case of Dyer v Mundaywherein it was held by the judge that if any employee or a servant were to act in excess of the capacity his employment permits, in that case, the master is to be held liable for the acts of the employee. Even though the definition of vicarious liability has moved a long way from this perception and given today’s day and age coupled with revolutionary judgment the scope has been widened and discussed over and over again yet it still remains relevant to some extent. This shot out the position of masters or employers in a course of employment which have been supported by many theoretical justifications, one such:

1. [2002] 3 WLR 1913
2. Dyer v Munday [1895] 1 QB 742.
3. J. W. Neyers, ‘A theory of vicarious liability’ (2005-6) 43 Alberta Law Review 287

Effective Control

The employer in an employment reserves effective control over their employee which indicates that in case of such emergency the employer reserves the power to exert control over any action taken by the employee in the course of employment. Even though, it has been criticized in context of the relationship of a parent and a child, if vicarious liability may arise but given in an environment of employment, this justification seems to stand strong.

Deep Pockets

It is to be fairly assumed that in a contract of employment, the employer is automatically on a better position as opposed to the employee, therefore if any unforeseen expenditure were to happen, the employer would be best suited to pay the compensation price. The question has been asked if the employer should be considered to be the sole source for providing compensation or not and it is so possible that the injury or tort may be over seen by any other authority and not necessarily the employer could stand a valid argument. As well as in cases of any activity of independent contract shall the vicarious liability fall on the employer and logically it shouldn’t be the case but again the justification often assumed is merely the fact that the employer has the power to hire an employee or an independent contract, therefore he must have deep pockets to pay for the damages.

Deterrence

The theory of deterrence was primarily raised to look at the consequences of injury suffered by any third party and the aim is to reduce such an injury by keeping the employer vigilant and obligatory to carry the risk if any such unforeseeable damage may cause but this theory does not directly relate with the vicarious liability per se. However, this theory is also looked from the employee’s perspective but it is also dependent on the fact that the deep pockets the employees have.

Distribution of losses

1. Atiyah, Vicarious Liability in the Law of Torts (London: Butterworths, 1967)
2. Flannigan, R., “Enterprise Control: The Servant-Independent Contractor 16 Distinction” (1987) 37 U.T.L.J. 25, 28
3. Bazley v. Curry [1999] 2 S.C.R. 534, [33]

The employers are often wealthier therefore in case of recouping damages and confronting liability, the possibility of the employer to break down the cost of damage between insurers and themselves is present. Even though such distribution should also be the responsibility of the Government since the Government has much wider fund to cover such mishaps.

Liability of the Enterprises

The case of Bazley had clarified the position that the enterprises should be responsible to pay such compensation given the risk shouldered by the plaintiff and that shall be a fair stand to take. Essentially, keeping the relationship between benefit and burden in mind, the employers must be subjected to claim the responsibility but again, the position of other authoritative bodies where it is not fundamentally driven by profit, poses a limitation in applying this justification.

It was further strengthened by the test of integration where it was highlighted the people signing contracts “for service” and “of service” are different and employees serve the business directly whereas independent contractors are merely ancillaries as held in Stevenson, Jordan & Harrison Ltd v MacDonald & Evans. However, the essential elements to constitute vicarious liability was also hanging upon another test that ascertains the subject matter of the employment , if it fits to be a questionable employment and that is done through the ‘multiple test’ or also known as “Economic reality test” appearing in the case of Ready Mixed Concrete Ltd v Minister of Pensions where the question of skill of the employee, consent of the employee and consistency of the work was reassured with common grounds of employment being fixed work hours, paychecks, taxes etc. but definitely, this test cannot be deemed to have been exhaustive.

Another important criteria to discuss with regards to vicarious liability is the presence of a sufficient act that can be claimed tortious and the liability can be ensured on that sole basis only and if the individual committing the wrong may gain immunity for reasons inherently personal then the master or the employer, whoever is in superior position of control will not relieved on the same grounds. It should be ascertained that there was acts that were authorized by the master and that authority can be implied as well acts that are committed by the agent which are supposedly authorized in nature but the manner of the work undertaken is absolutely unauthorized, or prohibited explicitly or falls out of the course of employment.

1. J. W. Neyers, ‘A theory of vicarious liability’ (2005-6) 43 Alberta Law Review 287
2. [1952] 1 TLR 101.
3. Supra 3
4. [1968] 2 QB 497
5. Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173.

This concept of tort is also known as imputed negligence where one party acting negligently in a relationship established legally shifting the onus on the person who is in charge of establishing control within the legal relationship as discussed before but is also permitted by another theory known as Respondeat Superior, a latin word meaning “Let the master answer” is solely base on a relationship governing the employer and his employee within a business establishment. Clearly, the employer is directly charged with the presence or absence of care which he owed naturally towards the employee but has to function within the trope of their employment relationship and not outside its scope.

However, the theories that are resorted for justifying the presence of a vicarious liability can also be a mixed form and can be asserted through more than one justification. The criterion to establish such a tort must have three basic elements which were decided over many cases. In the case of Imperial Chemical Industries Ltd v Shatwell , concerning two brothers who were injured during the course of an employment and brought the charge of vicarious liability on an injury suffered but such a charge was dismissed since the court held that the employees must be aware of the expected risk and injury. Thus, the brothers were held to be in breach of their duty hence no official tort was seen to be found. Thus, the first test was established requiring the mandatory presence of tort.

1. Broom v Morgan [1953] 1 QB 597.
2. Poland v Parr & Sons [1927]1 KB 236
3. Century Insurance v NI Road Transport Board [1942] AC 509
4. Vicarious Liability, < https://law.jrank.org/pages/11107/Vicarious-Liability.html> accessed on 28th August, 2020
5. ibid
6. Imperial Chemical Industries Ltd v Shatwell [1965] AC 656

Secondly, the question was in between the independent contractor in the case of a contract for service as opposed to the relationship between an employer and employee arose in cases of contract for service. The vicarious liability in case of independent contractor does not seem to exist but in case of the employee and employer relationship, relying on the theory of effective control exerted by the employer on the employee, vicarious liability arises especially following the case of Yewens v Noakes.The much more recent case of Cox v. Ministry of Justice elaborated on the nature of control exerted and the possibility of exerting direct control over the workmanship of an employee and in that case it shall be difficult to use the ‘control Test’ as in the case of Cox v. Ministry of Justice to be used separately.

However, the presence of independent contractors is much more today and the terms of an employment status seem to change structurally and drastically with time, therefore, clearly defining the status of an employment becomes cumbersome for the parties as well as the courts making it harder to study it within the purview of vicarious liability as well.

Various Claimants v Catholic Child Welfare Society & Others

Understanding the tests applied in Various Claimants v Catholic Child Welfare Society & Others [2012] UKSC at 34, primarily the issues that were upheld were the reasons that gives birth to vicarious liability in the first place and secondly, if the injury that was committed was in connection with the act committed. Also, the facts of the case gave birth to a question whether the vicarious liability will be shared in between two parties. First defendant being the “Institute of the Brothers of the Christian Schools” in the alleged acts of sexual harassment and the second party would be the authority that managed the school locally known as the Middlesbrough Diocesan Rescue Society. Now would both the managers of the school and the members of the institute be held liable vicariously.

1. Yewens v Noakes (1881) 6 QBD 530
2. McKendrick, E., ‘Vicarious Liability and Independent Contractors – A Reexamination’ (1990) 53 M.L.R. 770, 770
3. Various Claimants v Catholic Child Welfare Society & Others [2012] UKSC at 34
4. The Student Lawyer, (2012) “ The Catholic Child Welfare society and vicarious liability”, < https://thestudentlawyer.com/2012/12/14/the-catholic-child-welfare-society-and-vicarious-liability/> accessed on 7th January, 2021.

In the first stage, the High Courts did not hold the members of the institute vicariously liable for the acts of the offence but the second defendant, the Middlesbrough society applied for an appeal claiming to share the liability. Thus, the Supreme Court upheld the appeal and overturned the decision of the High Court.

This case forwarded a newer dimension through which the position and interpretation of vicarious liability changed drastically allowing the onus of vicarious liability to be spread over number of authorities like any unincorporated association was capable of being vicariously liable for the acts committed by the members of such association. This will not be barred in case the person committing the injury has breached their duty and most importantly, the liability can be shared in case of a single tort committed. It was upheld by Lord Phillips that the relationship between the two defendants was more likely to be a corporate body which is heavily related to performing close functions in the school. The first test that arose in order to understand whether an employee / employer relationship exist between the two it was held that the ideal reason the Institute was managed by the Middlesbrough Diosecan Rescue Society only as a means to be an extension of the work the Brothers primarily do and does not function as a separate independent rule making body. The Brothers had set out rules for the school to follow and such was obligated on the Managers as well. Thus, the relationship was established between both the defendants satisfying the court of the first criterion. Secondly, the criterion to develop the link between the offence committed and the defendants were to be established which in this case was present since the person engaged in committing the act of sexual abuse was able to continue such acts because of the defendants. The members of the Institute continued their position, the children were open to such abuse and the school was functioning as per the guidance of the brother. This automatically forwarded an implicit due care towards the children which was vitiated and therefore, the teachers responsible for such an act could possibly perform such an act due to its accessibility of the school premises. Thus, clearly, both the defendants were in close consonance to the injury suffered and there shouldn’t be any doubt about sharing such vicarious liability.

The case of Cox v. Ministry of Justice also concerned itself with the sole question of whether a significant relationship persisted between the person committing the tort and the employer in the course of employment to be charged of vicarious liability which in this case concerned the prison service as the employer in employment to be able to qualify having a significant employer/employee relationship between its members to be able to take the liability of the offence committed by a prisoner causing injury to another member of the prison. Therefore, the first criterion that was discussed in the case of Various Claimants v Catholic Child Welfare Society & Others, was worked upon. The lower court did not consider the subsistence of an employer employee relationship between the tortfeasor and the defendant but the Supreme Court had changed position to declare that in case of imposing vicarious liability, the relationship between the tortfeasor and the defendant must not be seen in distribution rather on the whole. Lord Reed had relied blindly on the decision of the Various Claimants case that the tortfeasors action was heavily dependant on the fact that the act could not have been committed if it was not a part of the same business and the possible risk of such an injury arose primarily because the place of business was shared between the two and it arose because of the defendant’s active role in it. However, the position of Lord Reed in the case, widens the scope claiming that the only reason why the scope of the relationship between an employer and an employee is studied only to help compensate the victims as much as possible in order to make do the good but it does not entirely stand on the justification of the “deep pockets” of the employer but the idea is to achieve a fair and reasonable ground of imposing liability and compensating the victim

Recent development in the case of Mahmud v. Morrison

This case was a further development on the position of the court in establishing vicarious liability as opposed to the cases discussed above. The case was between was between a petrol station by the name of and owned by WM Morrison Supermarkets Plc. And a consumer, Mr. Mohamud. Mr. Khan was an employer in the abovementioned petrol station. The consumer had gone to the petrol station to ask for a favour as he wanted some prints of some documents from his pen driver. At this favour, Mr. Khan had denied his favour and let him know that no such work can be done here, which the customer, Mr. Mahmud found hurtful and racist indicating his Somalian origin along with threats to return back to his car. This unpleasant exchange increased and in further anger, Mr. Khan had explicitly opened the car door of Mr. Mahmud and he punched his face. This situation went out of hand and a brawl started out between the two, on the verge of deep physical assaults as well. The court had come to a decision where Mr. Mahmud was seen to have done no such act that would amount to such a situation and the fault was of Mr. Khan. Despite being an employee of Morrison supermarkets, and a close relationship being existent between the two, no vicarious liability was found out. The close connection test also held the owner or employer for any negligent act committed by the employee and followed ever since. An appeal was filed by Mr. Mahmud where the focus was that the act may not be a resultant of the duties but was during the time frame of employment. This was upheld unanimously by the apex court and case was ruled in favour of Mr. Mahmud. Since, the threat made was to not return back in the place of business, clearly throwing the liability on the Morrison Supermarkets.

1. Cox v Ministry of Justice [2016] UKSC 10

This case had widened the scope dramatically and the test establishing close connection was upheld in a broader light that just towards the duty of the employment which was far from what the previous cases dealt with. This clearly gave importance to the work hours coupled with the course of employment to hold the employer vicariously liable, as the Morrison Supermarkets were, for the negligent act committed by Mr. Khan elucidating the fact that concept of vicarious liability is not limited to the traditional notions only.

BIBLIOGRAPHY

1. Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215

Cases

• Dubai Aluminum Co ltd v. Salaam [2002] 3 WLR 191
• Dyer v Munday [1895] 1 QB 742.
• Bazley v. Curry [1999] 2 S.C.R. 534, [33]
• Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497
• Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173.
• Broom v Morgan [1953] 1 QB 597.
• Poland v Parr & Sons [1927] 1 KB 236
• Century Insurance v NI Road Transport Board [1942] AC 509
• Yewens v Noakes (1881) 6 QBD 530
• Imperial Chemical Industries Ltd v Shatwell [1965] AC 656
• Cox v. Ministry of Justice [2016] UKSC 10
• Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215

Journals/ Articles

• J. W. Neyers, ‘A theory of vicarious liability’ (2005-6) 43 Alberta Law Review 287
• Atiyah, Vicarious Liability in the Law of Torts (London: Butterworths, 1967)
• Flannigan, R., “Enterprise Control: The Servant-Independent Contractor 16 Distinction” (1987) 37 U.T.L.J. 25, 28
• Stevenson, Jordan & Harrison Ltd v MacDonald & Evans[1952] 1 TLR 101.
• Vicarious Liability, < https://law.jrank.org/pages/11107/Vicarious-Liability.html> accessed on 7th January, 2021
• McKendrick, E., ‘Vicarious Liability and Independent Contractors – A Reexamination’ (1990) 53 M.L.R. 770, 770
• Various Claimants v Catholic Child Welfare Society & Others [2012] UKSC at 34
• The Student Lawyer, (2012) “ The Catholic Child Welfare society and vicarious liability”, < https://thestudentlawyer.com/2012/12/14/the-catholic-child-welfare-society-and-vicarious-liability/> accessed on 7th January, 2021.

Continue your exploration of Legal Analysis of Negligence in Healthcare Scenario with our related content.