Chapter 9 Outline answers to essay questions

Employers' liability and vicarious liability

Brian works for Altamont plc as a delivery driver. He drives his own van but wears a uniform supplied by Altamont, who pay his monthly salary. On Monday afternoon, he is on his way to do his last delivery when he gets a call from his daughter Patti and agrees to collect her from school. As they leave the school and drive in the direction of the delivery destination, Brian’s van skids and hits Keith’s car.

Advise Keith.

Vicarious liability is the issue in this question. You will first briefly outline the duty of care, breach, and causation points in order to establish that B has committed the tort of negligence. K will then wish to bring an action against A plc.

Set out the requirements of vicarious liability: a tort, committed in the course of employment, by one in an employment relationship with the defendant. The tort has been established. The facts state that B works for A but it is not clear whether he is an employee and this should not be assumed. The relationship must be analyzed by the ‘composite approach’ – setting out the key elements (Market Investigations v Min Social Security). Driving his own van indicates an independent contractor but salary and uniform indicate an employee. If an employment relationship is found, then the last element is whether tort took place in course of employment. This is a classic ‘detour’ scenario – relevant cases are Storey v Ashton (‘a question of degree) and Hilton v Burton. Given that B has resumed driving to the delivery destination when the accident happens, it seems likely that this will be in the course of employment and so vicarious liability is established.