The Liability of an Employer Regarding the Torts - Coursework Example

Torts Question One Introduction The liability of an employer regarding the torts committed by his employee is limited to that of the torts committed by the latter during the course of his employment. The question arises, as to what exactly constitutes acting in the course of employment. In Lister v Hesley Hall, a children’s home residential warden had sexually abused these children. He was held to have been acting in the course of his employment. However, in N v Chief Constable of Merseyside Police, a uniformed police officer who molested a highly intoxicated young female was not held to be acting in the course of his duty (Horsey & Rackley, 2013, p. 334). The previous test for such evaluations had been the Salmond test, which queried whether the employee’s act had been a wrongful and unauthorised mode of carrying out an act authorised by the employer. This was rejected by the Law Lords in Lister v Hesley Hall. In this case, their Lordships clarified that the relevant test was one of close connection. In this case, the House of Lords established a close connection between the wrongful act and his employment. Moreover, this connection was deemed to be sufficiently proximate to render the employers liable (Horsey & Rackley, 2013, p. 335). Moreover, in Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd, a negligently driven crane caused injuries to a worker. The Board and crane’s driver had been hired for completing loading work to stevedores. The operations of the crane were under the control of these stevedores. However, they failed to supervise the manner in which the crane was being controlled by its driver (Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd, 1946). The court held the Board responsible for the negligence of the crane driver, as it was his general employer. Alan For assessing whether Sushi Ltd is vicariously liable for the actions of Maurice, the following discussion has been undertaken. For establishing that the Sushi Ltd can be held vicariously liable for the negligence of its employee Maurice, Alan should prove the following; first, Maurice was an employee; second, Maurice committed a tort; and finally, the tort was committed during the course of employment of Maurice. In Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd, the Court of Appeal rejected the previously held stance that only one employer could be rendered vicariously liable. The Court of Appeal accepted the notion of dual vicarious liability, via its ruling in this case (Giliker, 2013, p. 307). Moreover, in JGE v Portsmouth Roman Catholic Diocesan Trust, the Court of Appeal held that an association similar to employment was sufficient. This was the opinion of the Court, despite the fact that the majority of the cases of vicarious liability would entail an employee-employer relationship (Giliker, 2013, p. 307). These decisions indicate the capacity of the common law doctrine to transform itself to adapt to the changing social situation. However, they have introduced an element of uncertainty. Evidently, Maurice is an employee and not an independent contractor, and he has committed the tort of negligence. It is well established that at the workplace, colleagues owe each other a duty of care, regarding the work being done by them. As a consequence, Maurice owes a duty of care to Alan. The failure of Sushi Ltd to provide adequate supervision, resulted in the injury to Alan. Hence, Sushi Ltd has failed to achieve the standard of care expected of a reasonable worker. As such, Sushi Ltd is in breach of its duty of care towards its employees in general, and Alan in particular. Thus, Sushi Ltd is vicariously liable for the negligence of Maurice, during his actions in the course of employment. Ben Vicarious liability, denotes the liability of an employer to a third party, when the tort is committed by his employee during the course of his employment. When the tortfeasor is an independent contractor, and not an employee, the employer is not held liable for the negligence of the former, unless the employer owes a non-delegable duty to the third party (Tofaris, 2010, p. 13). These features had been addressed in Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH and others. The dispute in this case was on account of a fire that had broken out at a recycling plant under construction. Maschinenfabrik Ernst Hese had been engaged by Biffa Waste to design and construct the recycling plant. This work was sub-contracted by Maschinenfabrik Ernst Hese to Hese Umwelt (Tofaris, 2010, p. 14). Hese Umwelt formed a contract with Outokumpu Wenmec to install a ball mill, which was crucial to the plant. Outokumpu Wenmec contracted with Pickfords to conduct the required welding work to the ball mill. Pickfords proved to be negligent in their welding work, resulting in a fire (Tofaris, 2010, p. 14). Biffa Waste, realising the insolvent nature of Pickfords and Hese Umwelt, sought compensation from Maschinenfabrik Ernst Hese in tort and contract. It also sought compensation in tort from Outokumpu Wenmec. This claim was rejected by the Court of Appeal. The Court Of Appeal held that Biffa could not establish liability under the borrowed employee rule, as the workmen, in this particular instance, enjoyed substantial independence (Tofaris, 2010, p. 14). Similarly in our problem, the foreman is working under an independent contractor namely Fast Delivery Services Ltd. The inadequate supervision provided by this foreman, resulted in an injury to Ben. This injury was in the nature of being reasonably foreseeable. Therefore, the foreman had committed the tort of negligence, with respect to Ben. However, Sushi Ltd is not vicariously liable towards Ben. All the same, Ben can claim compensation, as an employee, from Sushi Ltd, via Insurance. Clara Furthermore, with regard to vicarious liability, the final issue is to decide whether the tort had been committed during the course of the foreman’s employment. The answer to this has to be in the affirmative, as he had been negligent in carrying out the task that he had been employed to carry out. In Ready-Mixed Concrete (South-East) Ltd v Minister of Pensions and National Insurance, the presently employed test for determining who constitutes an employee was developed. The satisfaction of the following conditions, establishes the presence of a contract of service (Ready-Mixed Concrete (South-East) Ltd v Minister of Pensions and National Insurance, 1968). First, the employees agree to provide their own work and skill for carrying out some service for their employer, in consideration of a wage or other remuneration. Second, the employees agree explicitly or implicitly that they will be subject to the control exercised by another person, while performing that service. The extent to which they will be under another person’s control will be adequate to render that person the employer (Ready-Mixed Concrete (South-East) Ltd v Minister of Pensions and National Insurance, 1968). Third, the other provisions of the contract are not inconsistent with a contract of service. For instance, a requirement that the workers have to make arrangements for their tools and helpers would constitute a term that would be inconsistent with a contract of service. In addition to these features, the courts examine other factors. One of these is the financial risk undertaken by the worker (Ready-Mixed Concrete (South-East) Ltd v Minister of Pensions and National Insurance, 1968) Similarly in our problem, the Fast Delivery Services Ltd is liable for the negligent actions of its workers. As per the above discussion, the van driver, who was the tort teaser, does not constitute an employee of the Sushi Ltd. He had been engaged by the Fast Delivery Services Ltd. Hence, Clara can claim compensation in tort for the negligence of the van driver from the Fast Delivery Services Ltd. She can also avail compensation from the motor insurance acquired by the Fast Delivery Services Ltd. As such, Sushi Ltd is not vicariously liable for Clara’s losses. Question Two Introduction This work deals with the concept of vicarious liability and its application by the courts in various situations. In this regard, several decisions have been examined. In the usual course, common law wrongs or torts constitute specific categories of conduct that the common law regards as blameworthy. With respect to such wrongs, the common law renders the wrongdoer, himself, liable. The overall approach is that any individual is liable, solely for his own acts. Consequently, the doctrine of vicarious liability can be considered to be an anomaly in a system of wrongs, wherein the tort of negligence is in a dominant position (Giliker, 2011, p. 34) The notion of making employers strictly liable for the torts of their employees, which occur during the course of the latters’ employment spans legal systems. This idea has generated considerable controversy in England and Wales, where the general preference in tort law has been towards a fault based approach, rather than strict liability (Giliker, 2013, p. 306). A number of academic initiatives had been taken to explain when non-delegable duties come to the fore and their correlation, from the theoretical perspective, to vicarious liability. However, these efforts have been unable to change the contentious nature of this area of tort law (Tofaris, 2010, p. 13). In order to attribute liability to the employer, the following conditions have to be satisfied. First, it has to be established that the employee had committed the tort. Second, the relationship between the employee and the employer has to be demonstrated. Third, the tort should have been committed, during the course of employment of the employee. All the same, a master will not be held liable for negligence on the part of his servant in carrying out a task that the latter was merely allowed to do, and which the servant had done for his own purposes (Raman, 2010). This situation was illustrated in Crook v Derbyshire Stone Ltd. In this case, the lorry driver had parked at a café on the roadside. Thereafter, he had crossed the way on foot, with the intention of procuring refreshment. This act was done during his employment and with the permission of his employer. The act of fetching the refreshment was merely supplementary to his employment (Raman, 2010). Moreover, in Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co, the proprietors of the garage had employed a night watchman. This individual, drove away in a car that had been entrusted to the garage for safekeeping. During this escapade, the night watchman collided this car with another vehicle. The court ruled that the garage owners were vicariously liable to the owner of the car. This was on the basis of the reasoning that the safekeeping of the car had been delegated by the garage owners to the night watchman, their employee. Consequently, they were deemed to be liable for their employee’s failure in performance (Parliamentary business, n.d.). Furthermore, in Harvey v RG O’Dell Ltd, the court held that indemnity arose when the employee was helping his employer, and not when he was carrying out his normal functions under his employment. This decision had been criticised for its highly restricted view of the work to be done by the employee. In Jones v Manchester Corp, the Court of Appeal held that a hospital board could not claim indemnity from the injury caused to a patient by a novice doctor’s negligence, as the board was duty bound to supervise him adequately (Lockton, 2011, p. 78). As such, when liability is imposed upon one person, say B, for the torts of another, say A, and where no legal wrong has been committed by B, then such liability constitutes vicarious liability. This form of liability has been central to common law from centuries. The cardinal features of vicarious liability are as follows (Neyers, 2005). First, A should have committed a tort, and it is insufficient for this purpose, if the actions of A had merely produced an adverse effect upon the plaintiff. Second, A should have been an agent or employee of B, at the relevant time. Third, the tort committed by A should have been during the course of his employment with B. Lastly, the fact that B is liable for the tort committed by A, does not shield A from liability. In other words, A and B are rendered joint tortfeasors, and both of them can be proceeded against by the victim of the tort (Neyers, 2005). In Lister and others v Hesley Hall Ltd, their Lordships established the proximity of the connection test. This test is applied by the courts, whilst determining whether a deliberate wrongful act had been committed by an employee, during the course of the latter’s employment. Furthermore, the courts will be required to decide whether the act of the employee can be classified as having sufficient proximity to the employment that it would be fair to regard the employer as vicariously liable (Lister and others v Hesley Hall Ltd, 2002). In addition, with regard to multiple vicarious liability, the advice provided by the Court had been less ambiguous. Thus, in the Viasystems case, the Court of Appeal had indicated two distinct tests for demonstrating the presence of dual liability. The first of these was the Control test, which endeavoured to identify whether control over the errant employee was shared (Giliker, 2013, p. 310). The other test was the business integration test, which analysed whether the errant employee was engaged in the business, organisation, or work of more than one employer. Although, the subsequent cases had indicated a preference for a stricter control test, the Supreme Court rejected this development and indicated its preference for a more flexible approach towards vicarious liability (Giliker, 2013, p. 310). Accordingly, the business integration test, with its greater flexibility, was made the test of choice. In addition, the Employers’ Liability (Compulsory Insurance) Act 1969, makes it mandatory for employers to insure their liability towards their employees for damages. This Act enjoins that every employer carrying out business in Great Britain has to insure its legal liability, with respect to disease or injury sustained by its employees in the course of their employment. This has to be done with an authorised insurer under approved policies (Employers Liability Working Party, 2000). Moreover, every motor vehicle drive in the UK has to procure motor insurance, prior to driving the vehicle on the road. The legal minimum is third party insurance. Such insurance covers the damage or injury caused by the driver of the insured motor vehicle to an animal, another person, property or vehicle. However, third party insurance does not cover other costs, such as repair to the insured vehicle (Government of the United Kingdom, 2014). Conclusion The manner in which a vicarious liability against the employer is derived is described below. If the employee engages in a tort, during the course of employment, his victim obtains a right of action against the employee’s assets. When the tort is committed in the course of employment, or in other words, satisfies the terms of the indemnity, one of the assets held by the employee is the right of indemnity against the employer. Under these circumstances, the employee can compensate the victim of the tort, by conveying this right to the victim. It is a fact that in most of the instances, it is the employer who actually pays the compensation. Therefore, the law permits the tort victim to sue the employer directly, and there is no obligation upon the victim to include or bring the employee into the action. In this manner, the employer is rendered vicariously liable, as the employee’s right of indemnity is transferred to the tort victim. References Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH and others (2008) EWCA Civ 1257. Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co (1925) SC 796. Crook v Derbyshire Stone Ltd (1956) 2 All ER 447. Employers Liability Working Party, 2000. General Insurance Convention. [online] Available at: [Accessed 26 July 2014]. Giliker, P., 2011. Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative Perspective. Journal of European Tort Law, 2(1), pp. 31-56. Giliker, P., 2013. Vicarious Liability On the Move: The English Supreme Court and Enterprise Liability. Journal of European Tort Law, 4(3), pp. 306-313. Government of the United Kingdom, 2014. Vehicle insurance. [online] Available at: [Accessed 26 July 2014]. Horsey, K. & Rackley, E., 2013. Tort Law. Oxford, UK: Oxford University Press. JGE v The Portsmouth Roman Catholic Diocesan Trust (2012) EWCA Civ 938. Lister and others v Hesley Hall Ltd (2002) 1 AC 215 . Lockton, D., 2011. Q&A Employment Law 2011-2012. 7 ed. Oxon, UK: Routledge. Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd (1946) 2 All ER 345. Neyers, J. W., 2005. A Theory of Vicarious Liability. [online] Available at: [Accessed 26 July 2014]. Parliamentary business, n.d. Judgments-Lister and Others (AP) v Hesley Hall Limited. [online] Available at: [Accessed 26 July 2014]. Raman, M. S., 2010. Vicarious Liability. [online] Available at: [Accessed 26 July 2014]. Ready-Mixed Concrete (South-East) Ltd v Minister of Pensions and National Insurance (1968) 1 All ER 433. Tofaris, S., 2010. Who pays for the sub-contractor’s negligence? Vicarious liability and liability for “extra-hazardous activities” re-examined. Cambridge Law Journal, 69(1), pp. 13-16. Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd (2005) EWCA Civ 1151. Read More