Topic One: Vicarious Liability
Advanced Tort: WHEN GOING THROUGH REMEMBER TO WATCH LECTURE ENGAGMENT
Vicarious Liability.
- Doctrine by which one person is made jointly liable for the tort of another
(traditionally is an employer being jointly liable for the torts of their employees,
whether or not the employee is at fault- strict liability tort).
- Does not depend on fault
- De facto results in employer replacing employee as the Defendant in a tort action
- De jure both employer and employee remain liable, and employer can seek
contractual indemnity from employee
Means that in law both the employer and employee is liable.
- Insurers have generally agreed to enforce the indemnity other than in exceptional
cases of intentional wrongdoing. Indemnity exists as a result of the employment
contract, but is of limited utility as generally all employers liability insurance are
signed up to a protocol where they agree they won’t enforce that indemnity against
the employees in cases of carelessness. May be able to do so where it is intentional.
3 elements to satisfy vicarious liability:
1. D1 must have committed a tort: if no tort has been committed cannot be vicariously
liable.
2. D1 and D2 must have a relationship of a kind that gives rise to vicarious liability:
relationship must be of a particular kind.
3. The tort must have a sufficient connection to that relationship: the employment, or
other relationship, must be sufficiently connected to the tort, to make it fair, just and
reasonable of a finding of vicarious liability.
History.
- Tort of Master and Servant
- Became more solidified in Victorian era- particularly focusing on employer-employee
relationship
Husbands used to be liable for the torts of their wives.
- Has been a rapidly developing area of the law “on the move” per Lord Philips in
Christian Brothers (2012). Has been expanding from its Victorian era base, to capture
more areas and bring more liability
- Good summary of history in Mohamud v WM Morrison Supermarkets (2016).
Its previous position was where D2 had direct control over the actions of D1, in that they
must be held liable for such actions. Law has thus developed to place a greater burden on
employers.
Mohamud v WM Morrison Supermarkets (2016):
- Highlight that the development of vicarious liability is as a result of a number of
factors, namely: changes to the size and structure of economic and other enterprises
(e.g. charitable), changes in social attitudes and the courts sense of justice and
fairness, particularly cases of sexual abuse of children by people in authority.
,Topic One: Vicarious Liability
- In Holdsworth’s A History of English Law (1908) (vol 3, pp 383-387), in medieval
times the general principle of vicarious liability was that a master was only liable at
civil law for misdeeds of his servants if done by his command and consent.
CRITICAL: Argue VL has broaden the scope of liability for employers, is this fair or not. Was
the approach in medieval times correct as it ensures employers were only liable for acts
they consented too?
- 17th century was the expansion of commerce and industry, and VL began to broaden.
Holt CJ in Boson v Sandford (1691) “whoever employs another is answerable for him
and undertakes for his care to all that make use of him”. Holt CJ in Tuberville v Stamp
(1698) “if my servant doth anything prejudicial to another, it shall bind me, when it
may be presumed that he acts by my authority, being my business”. Holt CJ in
Roberts Wayland’s Case “the master at his peril ought to take care what servant he
employs; and it is more reasonable that he should suffer for the cheats of his servant
than strangers and tradesmen”. Holt CJ in Middleton v Fowler (1699) held that for
the master to be liable the servant’s act had to be within the area of the authority
given to him.
- In Barwick v English Joint Stock Bank (1867) Wiles J argued that the rule in Hern v
Nichols that a principal was not liable for a fraudulent act of his agent was wrong,
expressing that “ no sensible distinction can be drawn between the case of fraud and
the case of any other wrong”
- Lord Macnaghten, in discussing Mackay v Commercial Bank of New Brunswick (1874)
said that the expressions “acting within his authority”, “acting in the course of his
employment” and “acting within the scope of his agency” is not easy to define, but
whichever expression is used must be construed liberally. Would also be unjust if the
firm was not held liable.
CRITICAL: Does the idea of justice and fairness play a role into the development of vicarious
liability?
- Read again for the Salmond formula, used in a lot of subsequent cases. compare to
the formula used now to decide whether an employer is vicariously liable
- Two important cases:
(1) Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co (1925): The
question is not to be answered merely by applying the test whether the act in
itself is one which the servant was authorised or ordered or forbidden to do. The
employer has to shoulder responsibility on a wider basis; and he may, and often
does, become responsible to third parties for acts which he as expressly or
impliedly forbidden the servant to do… It remains necessary to the master’s
responsibility that the servant’s act be one done within the sphere of his service
or the scope of his employment, but it may have this character although it
consists in doing something which is the very opposite of what the servant had
been intended or ordered to do, and which he does for his own private ends. An
honest master does not employ or authorise his servant to commit crimes of
dishonesty towards third parties; but nevertheless he may incur liability for a
crime of dishonesty committed by the servant if it was committed by him within
the field of activities which the employment assigned to him, and that although
the crime was committed by the servant solely in pursuance of his private
advantage.
, Topic One: Vicarious Liability
(2) Rose v Plenty (1976): Scarman LJ “the employer is made vicariously liable for the
tort of his employee not because the plaintiff is an invitee, nor because of the
authority possessed by the servant, but because it is a case in which the
employer, having put matters into motion, should be liable if the motion which
he has originated leads to damage to another
Why Vicarious Liability?
“not grown from any clear, logic or legal principle” (Lord Pearce in ICI v Shatwell (1965)).
Highlighting that vicarious liability grew without a principal basis, from the tort of master
and servant. The rational of VL has developed over the years.
3 possible justifications:
1. Loss- spreading: One of the functions of Tort, spreading the loss of a person to wider
society. Losses sustained by an individual can be corrected. From employee to
employer, to insurance companies. In order for the loss to be spread a mechanism is
needed put the liability on someone who would be ensured, and VL provides that
mechanism.
2. Deterrence and ensuring employers take care: Negligence is more about
carelessness than deterrence, but VL ensure employers taker greater care e.g.
process about who the employ, risk assessments and risk mitigation practices. A
burden is placed on employers, which they may try to discharge through training and
risk mitigation strategies, leading to greater care and less harm. But could VL lead to
a moral hazard, where people are less careful as employees as they know they do
not have to pay damages.
3. Ensuring justice in the case: Employers often have ‘deeper pocket’ than their
employees, therefore claimants get the justice they deserve.
“Enterprise liability”- see Bazley v Curry (1999)
Important case for the development of VL, coming up with a broad idea of enterprise
liability, putting together 3 possible justifications.
Bazley v Curry (1999): GO BACK AND LOOK AT RATIOALES OF THE DECISION TO IMPOSE VL
Look at extracts and moodle to find quote para.
- Vicarious liability has always been concerned with policy.
- Changed with the increase of industrialism. Pitted two policies between each other:
the social interest in furnishing an innocent ort victim with recourse against a
financially responsible defendant, versus a concern not to foist undue burdens on
business enterprises
- G.H.L Fridman, The Law of Torts in Canada (1990) vol 2 at p314-315: VL was
traditionally considered to rest on one of two logical bases (1) that the employee’s
acts are regarded in law as being authorized by the employer and hence as being the
employers act (the “masters tort theory” or “direct liability theory” or (2) that the
employer was the employee’s superior in charge or command of the employee (the
servant’s theory). However, none completely explain the operation of the doctrine
Advanced Tort: WHEN GOING THROUGH REMEMBER TO WATCH LECTURE ENGAGMENT
Vicarious Liability.
- Doctrine by which one person is made jointly liable for the tort of another
(traditionally is an employer being jointly liable for the torts of their employees,
whether or not the employee is at fault- strict liability tort).
- Does not depend on fault
- De facto results in employer replacing employee as the Defendant in a tort action
- De jure both employer and employee remain liable, and employer can seek
contractual indemnity from employee
Means that in law both the employer and employee is liable.
- Insurers have generally agreed to enforce the indemnity other than in exceptional
cases of intentional wrongdoing. Indemnity exists as a result of the employment
contract, but is of limited utility as generally all employers liability insurance are
signed up to a protocol where they agree they won’t enforce that indemnity against
the employees in cases of carelessness. May be able to do so where it is intentional.
3 elements to satisfy vicarious liability:
1. D1 must have committed a tort: if no tort has been committed cannot be vicariously
liable.
2. D1 and D2 must have a relationship of a kind that gives rise to vicarious liability:
relationship must be of a particular kind.
3. The tort must have a sufficient connection to that relationship: the employment, or
other relationship, must be sufficiently connected to the tort, to make it fair, just and
reasonable of a finding of vicarious liability.
History.
- Tort of Master and Servant
- Became more solidified in Victorian era- particularly focusing on employer-employee
relationship
Husbands used to be liable for the torts of their wives.
- Has been a rapidly developing area of the law “on the move” per Lord Philips in
Christian Brothers (2012). Has been expanding from its Victorian era base, to capture
more areas and bring more liability
- Good summary of history in Mohamud v WM Morrison Supermarkets (2016).
Its previous position was where D2 had direct control over the actions of D1, in that they
must be held liable for such actions. Law has thus developed to place a greater burden on
employers.
Mohamud v WM Morrison Supermarkets (2016):
- Highlight that the development of vicarious liability is as a result of a number of
factors, namely: changes to the size and structure of economic and other enterprises
(e.g. charitable), changes in social attitudes and the courts sense of justice and
fairness, particularly cases of sexual abuse of children by people in authority.
,Topic One: Vicarious Liability
- In Holdsworth’s A History of English Law (1908) (vol 3, pp 383-387), in medieval
times the general principle of vicarious liability was that a master was only liable at
civil law for misdeeds of his servants if done by his command and consent.
CRITICAL: Argue VL has broaden the scope of liability for employers, is this fair or not. Was
the approach in medieval times correct as it ensures employers were only liable for acts
they consented too?
- 17th century was the expansion of commerce and industry, and VL began to broaden.
Holt CJ in Boson v Sandford (1691) “whoever employs another is answerable for him
and undertakes for his care to all that make use of him”. Holt CJ in Tuberville v Stamp
(1698) “if my servant doth anything prejudicial to another, it shall bind me, when it
may be presumed that he acts by my authority, being my business”. Holt CJ in
Roberts Wayland’s Case “the master at his peril ought to take care what servant he
employs; and it is more reasonable that he should suffer for the cheats of his servant
than strangers and tradesmen”. Holt CJ in Middleton v Fowler (1699) held that for
the master to be liable the servant’s act had to be within the area of the authority
given to him.
- In Barwick v English Joint Stock Bank (1867) Wiles J argued that the rule in Hern v
Nichols that a principal was not liable for a fraudulent act of his agent was wrong,
expressing that “ no sensible distinction can be drawn between the case of fraud and
the case of any other wrong”
- Lord Macnaghten, in discussing Mackay v Commercial Bank of New Brunswick (1874)
said that the expressions “acting within his authority”, “acting in the course of his
employment” and “acting within the scope of his agency” is not easy to define, but
whichever expression is used must be construed liberally. Would also be unjust if the
firm was not held liable.
CRITICAL: Does the idea of justice and fairness play a role into the development of vicarious
liability?
- Read again for the Salmond formula, used in a lot of subsequent cases. compare to
the formula used now to decide whether an employer is vicariously liable
- Two important cases:
(1) Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co (1925): The
question is not to be answered merely by applying the test whether the act in
itself is one which the servant was authorised or ordered or forbidden to do. The
employer has to shoulder responsibility on a wider basis; and he may, and often
does, become responsible to third parties for acts which he as expressly or
impliedly forbidden the servant to do… It remains necessary to the master’s
responsibility that the servant’s act be one done within the sphere of his service
or the scope of his employment, but it may have this character although it
consists in doing something which is the very opposite of what the servant had
been intended or ordered to do, and which he does for his own private ends. An
honest master does not employ or authorise his servant to commit crimes of
dishonesty towards third parties; but nevertheless he may incur liability for a
crime of dishonesty committed by the servant if it was committed by him within
the field of activities which the employment assigned to him, and that although
the crime was committed by the servant solely in pursuance of his private
advantage.
, Topic One: Vicarious Liability
(2) Rose v Plenty (1976): Scarman LJ “the employer is made vicariously liable for the
tort of his employee not because the plaintiff is an invitee, nor because of the
authority possessed by the servant, but because it is a case in which the
employer, having put matters into motion, should be liable if the motion which
he has originated leads to damage to another
Why Vicarious Liability?
“not grown from any clear, logic or legal principle” (Lord Pearce in ICI v Shatwell (1965)).
Highlighting that vicarious liability grew without a principal basis, from the tort of master
and servant. The rational of VL has developed over the years.
3 possible justifications:
1. Loss- spreading: One of the functions of Tort, spreading the loss of a person to wider
society. Losses sustained by an individual can be corrected. From employee to
employer, to insurance companies. In order for the loss to be spread a mechanism is
needed put the liability on someone who would be ensured, and VL provides that
mechanism.
2. Deterrence and ensuring employers take care: Negligence is more about
carelessness than deterrence, but VL ensure employers taker greater care e.g.
process about who the employ, risk assessments and risk mitigation practices. A
burden is placed on employers, which they may try to discharge through training and
risk mitigation strategies, leading to greater care and less harm. But could VL lead to
a moral hazard, where people are less careful as employees as they know they do
not have to pay damages.
3. Ensuring justice in the case: Employers often have ‘deeper pocket’ than their
employees, therefore claimants get the justice they deserve.
“Enterprise liability”- see Bazley v Curry (1999)
Important case for the development of VL, coming up with a broad idea of enterprise
liability, putting together 3 possible justifications.
Bazley v Curry (1999): GO BACK AND LOOK AT RATIOALES OF THE DECISION TO IMPOSE VL
Look at extracts and moodle to find quote para.
- Vicarious liability has always been concerned with policy.
- Changed with the increase of industrialism. Pitted two policies between each other:
the social interest in furnishing an innocent ort victim with recourse against a
financially responsible defendant, versus a concern not to foist undue burdens on
business enterprises
- G.H.L Fridman, The Law of Torts in Canada (1990) vol 2 at p314-315: VL was
traditionally considered to rest on one of two logical bases (1) that the employee’s
acts are regarded in law as being authorized by the employer and hence as being the
employers act (the “masters tort theory” or “direct liability theory” or (2) that the
employer was the employee’s superior in charge or command of the employee (the
servant’s theory). However, none completely explain the operation of the doctrine
