Vicarious Liability and the Close Connection Test - Essay Example

Vicarious Liability and the Close Connection Test Introduction The close connection test is with regards to vicarious liability, specifically whether or not the act in question is closely connected to the employment. The general rule in English law is that the employer is liable for the acts of an employee while that employee is on the job. However, there are many cases where this does not hold true, and this is what this quote is about – the employer is often not liable to the third party, which puts the third party at a disadvantage because the tortfeasor may not have the money to pay for the damage caused. Therefore, in cases like that, the risk of injury and negligence falls upon the injured third party, who is forced to pay for his or her own medical bills and loses work, etc., without compensation because the tortfeasor is judgment proof, which means that he or she does not have the resources to pay the third party, whereas the employer would have these resources. There are simply too many holes in the vicarious liability law which allow the employer to get around the vicarious liability rules, which, in essence, put the burden of the damages on the injured. This paper will attempt to establish that the rules of vicarious liability are applied too arbitrarily for a third-party to know what will happen in a given case, and that employers should be liable in more circumstances because they are better able to assume the risk of damages because they are the ones who hired the employee in the first place, therefore, they are better able to ascertain what risks are inherent with a certain employee. Old Approach The law has evolved to where employees may be liable for intentional acts. It has not always been so. For instance, in Daniels v. Whetstone1 there was a bouncer who engaged in violent behavior. However, the employer in that Daniels case explicitly told the bouncer that he could not engage in the particular behavior that he engaged in. Moreover, in Daniels, the bouncer was explicitly told not to come back into the bar, but he did this anyhow, and this was when the violence occurred. The employer was held not to be liable for the bouncer's violence in this case. Also, in contrast to the findings in the Dubai case, it has long been a tenant for torts that it does not matter if something is expressly forbidden – typically the employer would still be liable for the actions of the employee. This principle was established in 1862 with the case of Limpus v. London General Omnibus Co.2 In the Limpus case, the company expressly told the driver of the omnibus not to race other omnibuses, yet the driver did this, and the omnibus overturned. However, the Limpus case is difficult to square with another case with similar facts, which found that if an employee does something that is not done with the knowledge or consent of the employer, this often means that the employer is not vicariously liable for the resulting negligence, which puts the onus on the injured party. The case is Conway v. George Wimpey & Co. Ltd.3 In the Conway case, the employee picked up the plaintiff, who was also an employee, and got into an accident. Since the employer did not know nor authorize the employee to do this, it was held that the employer was not liable. This seems to be an arbitrary case, in light of the principles set forth in Limpus. New Close Connection Test While the old test states that employers are generally no liable for their employees’ intentional acts, this has been evolving. Consider the case of Lister v. Hesley Hall Ltd.4 This apparently was one of the first times that employers are said to be liable for intentional acts of their employees. In Lister, the close connection test was first enumerated, finding that it was fair and just to find a close connection between the warden's sexual abuse of boys in his care and his duties as a warden. In other words, in this case, it found that the sexual abuse was inextricably woven in the duties of the warden, in that if the warden did not have the duties that he did - checking up on children at night, alone – then the warden would not have the opportunity to sexually abuse the boys in his care. While this case was landmark, in that it put employers on the hook for intentional torts if the intentional torts arose because the duties of the employee essentially allowed the intentional tort to occur, this rule is not sufficiently bright line to encompass every situation. This principle would come into play in the case of Dubai Aluminum v. Salaam as well.5 In the case of Dubai, the question was whether the firm would be liable for tortious acts of a member of the partnership, as well as acts which would be considered to be equitable wrongs, such as the wrongs which were engaged in by Salaam in this case. There are elements of agent and principle in this case, because Amhurst in this case would be considered to be an agent of the solicitor firm that he was a partner of. However, in this case, it was held to be in the ordinary course of business, so both tortious wrongs and dishonest breaches would make the firm vicariously liable. However, as noted above, if there was simply a independent contractor relationship between the parties, then it would be a different story, as even torts committed in the ordinary course of business would not make the principle liable if there was only an independent contractor relationship. This does not seem right, as an independent contractor is also working at the behest of the principle, therefore the principle should be on the hook for the agent's acts. The Dubai case also involved an intentional tort, and the law regarding intentional torts seems to be evolving over time. Fraud would be considered to be an intentional tort under English law.6 However, even though the law is evolving to where employers are said to be liable for the intentional torts of their employers, the law is not entirely developed to encompass all intentional torts which might be committed by the employee. For example, an employer might be liable for the sexual abuse of its employees. Another case where the rule of close connection was applied was the case of Mattis v. Pollock.7 In the Mattis case, the defendant was a bouncer who was involved in a string of events that included throwing out a friend of the plaintiff Mattis from the bar where Mr. Cranston worked. Mr. Cranston was ultimately responsible for stabbing Mattis in a fit of rage, after Mr. Cranston, the bouncer, left work and came back. However, the reason why he was enraged with Mattis had to do with Cranston's earlier duties at the bar. Therefore, it was held in the Mattis case that Pollock, who owned the bar where Cranston worked, would be liable for Mattis' injuries. The reasoning was that Cranston's revenge intention had to do with Cranston's earlier duties of being a bouncer, therefore there was a close connection with Cranston's duties as a bouncer. What these cases establish is that there is now a looser connection to the employee's wrongful acts and the liability of the employer. That said, there is not necessarily enough guidance in any of these cases that would mean that a third party injured party would not assume the risk of the employee's negligence. It appears that the principle is applied in a case by case basis. Moreover, there is also the problem that often there are negligent acts which are performed by the employee for which the employer would not be liable. For instance, Further, the close connection rule is sometimes applied in a somewhat arbitrary fashion, which would mean that the injured third party would bear the risk of loss in certain cases as well. Weeks (2004) has pointed out how the rule might be arbitrarily applied, which means that in many cases the third party would bear the risk of the loss.8 In particular, Weeks (2004) notes that the findings that an employer is liable for the intentional acts of an employee is a complicated one, in that it not only involves a finding of fact but also a judgment of all the circumstances surrounding the act in question. Moreover, Weeks (2004) also implies that the employer should assume more of the a risk when an employee does something intentionally wrong, with respect to a third party, because the employer hired that employee and knows about the employee's background. The employer, in other words, has information about the employee that would mean that the employer should shoulder the risk of the employee. For instance, in the case of Mattis, the employer not only encouraged this employee to rough up people at the bar, but the employer also probably was privy to some information about Cranston. Perhaps Cranston has a violent past. In that case, especially, if Cranston does something violent that is at all connected to employment, then the employer should bear the risk, because the employer employed Cranston, knowing his background. The same could hold for the Dubai case and the case of Lister. And, if the employer does not know the background of the employee, it should know this background and should assume the duty to employ the right kinds of people for their positions. That the employer is privy to private information that is not known to the public should be reason enough that the employer would be liable for the employee's misdeeds, because the employer, in essence, assumed the risk. Therefore, if this is the principle that is established – that the employer assumes the risk for an employee, as the employer is privy to the employee's background, therefore should assume the risk for the employee, or at least should bear the burden of the risk more than the injured third party should – it is difficult to delineate cases where courts have held this assumption of the risk not to be so. What the court in the Dubai case was trying to establish is that, under no circumstance, should the injured third party have to bear the risk of loss. The risk of loss should fall more on the employer, even when the acts are intentional, and even when there is not really an employer-employee relationship, such as the case of independent contractors. The employers should bear the risk of loss because the employer knows about the employee's background, so assumes the risk that the employee might act in a certain way. Yet the rule is applied arbitrarily, which means that the third party does not have enough guidance in how the rule might be applied in his or her particular case. In one case, an employees actions which are not done with knowledge or consent is held to be out of the scope of employment - such as in the case of Conway above. That case had a confusing holding, because one employee gave another employee a ride, which would seem to mean that this was in furtherance of the employer. Yet the employer was not held to be liable. In other cases with similar facts, such as Rose v. Plenty,9 the employer was held liable. Rose v. Plenty involved a milkman who was employing a child to help him with his rounds, and the child was injured while doing so. Just as in Conway, the act was not authorized, yet the employer was held liable in Rose, but not in Conway. The same could be said about the two bouncer cases – in Mattis, the employer was found liable, but the employer was not found liable under similar circumstances in the case of Daniels. The court justified this by saying that the bouncer in Daniels explicitly countermanded an order from the employer, but this distinction does not make sense in light of the long-established rule of Limpus, which states that employers are still on the hook for acts that their employees perform which are in direct contradiction to stated orders. Conclusion The case law regarding vicarious liability in general, and the close connection rule in particular, show that the rules regarding these concepts are often arbitrarily applied. This was true with the old approach, as some cases state that acts not authorized by the employer would make the employer liable, whereas other cases found the opposite. That said, the old approach had more of a bright line than the new approach – employers are not liable for intentional torts, period. Now it is more of a grey area, and this makes case rulings seem ever more arbitrary. Cases with similar facts are often decided in completely different ways, and it is difficult to reconcile one ruling with another. What his often means is that the third party is the person who bears the risk of loss, and this should not be. There is a bright line rule, supposedly, that even acts of employees which contradict stated orders from employers does not mean that the employer is absolved of blame. Yet this rule is not applied in all cases – the bouncer cases above demonstrate this, as do the cases of Rose v. Plenty and Conway. Sometimes an intentional tort is attributable to the employer, but this, too, is fact intensive, and it seems that the courts decide these cases in arbitrary fashions as well. That the courts have not established more of a bright line rule with regards to vicarious liability is the reason why third parties bear the risk of loss. This shows that there is no guidance, or very little guidance, on how to apply the new rule – this is because the new rule is fact intensive, so there it no predictability for it. However, the employer should always bear more of a risk of loss than the a third party, because the employer assumes the risk when the employer hires a particular employee. The employer knows the employee's background, and is privy to special information. Because of this, the employer needs to bear the risk more than the third party, who is not privy to this information. This should mean that future cases should not be decided so arbitrarily, and this is what is meant by the passage that is the subject of this particular paper. Sources Used Conway v. George Wimpey & Co. Ltd. [1951] 2KB 266. Daniels v. Whetstone [1962] Lloyd's Rep. 1. Dubai Aluminum v. Salaam [2002] UKHL 48. Hulton v. Jones [1910] AC 20. Limpus v. London General Omnibus Co. (1862) 1 H&C 526. Lister v. Hesley Hall Ltd. [2002] 1 AC 215. Mattis v. Pollock [2003] 1 WLR 2158. Rose v. Plenty [1976] 1 WLR 141. R. Weeks, 'Vicarious Liability for Violent Employees' [2004] The Cambridge Law Journal 53, 63. Wilson v. Hodgson's Kingston Brewery Co. (1915) 85 LJKB 270. Read More