Summary
Summary Vicarious Liability and Defences in Negligence
- Module
- Tort Law (LAWW2017)
- Institution
- The University Of Nottingham (UON)
Topic 8 of the tort law module. Used by a 1:1(1st) student.
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Vicarious Liability Doctrine by which one person is made jointly liable for the tort of another
Does not depend on fault
Employer is jointly liable with employee for tort that happens in the course of employment
De facto results in employer replacing employee as the Defendant in a tort action
Vicarious Liability: Three Elements
D1 must have committed a tort
D1 and D2 must have a relationship of a kind that gives rise to vicarious liability
The tort must have a sufficient connection to that relationship
The right type of relationship
Employment vs independent contractor - No vicarious liability for the actions of an independent
contractor
When is there an employment relationship – often clear, but can generate difficulties (past cases
in employment law and tax law)
o Control - Ready-Mixed Concrete v v Ministry of Pensions and National Insurance [1968]
2 QB 497, 515 per MacKenna J
“(i) The servant agrees that, in consideration of a wage or other remuneration,
he will provide his own work and skill in the performance of some service for his
master. (ii) He agrees, expressly or impliedly, that in the performance of that
service he will be subject to the other's control in a sufficient degree to make
that other master. (iii) The other provisions of the contract are consistent with
its being a contract of service
o Integration
Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 A.C. 1
The defendant institute was a lay Roman Catholic order.
Its mission was to provide a Christian education to children.
Its members took vows of chastity, poverty and obedience and lived a communal life together as
brothers, following a strict code of conduct and obeying the orders of their superiors.
It operated residential reform schools on behalf of a local authority
The members had a employment contract with the local authorities
Over 170 claimants brought claims following physical and sexual abuse at the schools
Relationships Analogous to Employment
Liability of Diocese for Priests
John Doe v Bennett [2004] 1 SCR 436.
JGE v English Province of Our Lady of Charity [2013] QB 722
Liability of Religious Order for Members of Order
1
, Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 A.C. 1.
“(i) The institute was subdivided into a hierarchical structure and conducted its activities as if it
were a corporate body. (ii) The teaching activity of the brothers was undertaken because the
provincial directed the brothers to undertake it. True it is that the brothers entered into
contracts of employment with the Middlesbrough defendants, but they did so because the
provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in
furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother
teachers were obliged to conduct themselves as teachers was dictated by the institute's rules.”
Cox v Ministry of Justice [2016] UKSC 10; [2016] A.C. 660
C had been a catering manager at a prison.
A bag of rice was dropped spilling its contents on the floor
The claimant instructed the prisoners to stop work until the rice was cleared
Ignoring her instruction, one prisoner (Mr Inder) attempted to get past and dropped a heavy bag
of rice on the claimant's back, injuring her.
Prisons were required by statute to ensure that prisoners did useful work.
The prisoner responsible for the injury had earned a nominal wage.
Armes v Nottinghamshire CC [2017] UKSC 60; [2018] A.C. 355
The claimant, born in 1977, was taken into care as a child and placed by the defendant local
authority, under the statutory and regulatory scheme in force at the material time, with foster
carers.
The claimant suffered acts of physical abuse and sexual abuse at the hands of two foster carers
Was the council vicariously liable for the acts of the foster carers?
Various Claimants v Barclays Bank [2020] UKSC 13; [2020] 2 W.L.R. 960
The defendant was a bank, which had recruited the claimants between 1968 and 1984.
The employer arranged the appointments with a doctor to undertake pre-employment checks.
During these pre-employment checks the applicants were sexually assaulted by the doctor.
The bank communicated the details to the job applicants and supplied the doctor with a pro-
forma report for completion.
The doctor ran a portfolio practice and performed a range of work. The examinations were
unchaperoned at a consulting room in the doctor's home and he was paid a fee for each report.
The doctor was uninsured. Were the bank vicariously liable?
“although Dr Bates was a part-time employee of the health service, he was not at any time an employee
of the bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work
for the bank. The bank made the arrangements for the examinations and sent him the forms to fill in. It
therefore chose the questions to which it wanted answers. But the same would be true of many other
people who did work for the bank but were clearly independent contractors, ranging from the company
hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer
which might have obliged him to accept a certain number of referrals from the bank. He was paid a fee
for each report. He was free to refuse an offered examination should he wish to do so. He no doubt
carried his own medical liability insurance, although this may not have covered him from liability for
2
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