Chapter 9 Guidance on answering the questions in the book

Question 1

Explain the circumstances in which an employer will be vicariously liable for the tort of an employee.

Outline

As with all essays, it is essential that you specifically address the issue as framed in the question, rather than reflecting in a more general way. You must have a thesis, or line of argument, which is set out in a brief introduction and then follows through the body of the answer and then summarised in the conclusion. You should support your own viewpoint with legal authority. Note that this question is phrased more generally than most exam questions, where you would be more likely to be considering a specific issue concerning vicarious liability.

• The doctrine of vicarious liability is at variance with the general approach of the common law where liability is based on the fault or blameworthy acts of the tortfeasor. Employers are under a personal non-delegable duty of care to ensure the safety of their employees in the workplace (Chapter 8). If this duty is breached, the employer is directly liable to the employee, even in the absence of fault. Although the employer may have acted reasonably in entrusting the responsibility for workplace safety to another, if that person fails to ensure that reasonable care is taken, the employer is still liable because the duty is non-delegable.
• Vicarious liability may be imposed on an employer for harm caused by its employees to someone else. Under the principle of vicarious liability an employer, who cannot be said to be at fault or have personal blame, will be held liable for the harm caused by an employee ‘while acting in the course of his or her employment’.
• Vicarious liability does not mean that the employer is liable instead of the employee. The primary liability remains with the employee who committed the wrong; vicarious liability is therefore a form of secondary liability.
• Vicarious liability will not be imposed unless the following criteria are met: there must be an employer–employee relationship (which must be distinguished from an employer’s relationship with an independent contractor); the employee must have committed a tort; and the tort must be committed while acting in the course of employment.
• Vicarious liability outside the traditional employer–employee relationship in claims involving child sexual abuse has been considered by the courts. In Various Claimants v Catholic Child Welfare Society Supreme Court held that the law of vicarious liability has developed recently to establish a number of important propositions, one of which is that it is possible for unincorporated associations to be vicariously liable for the wrongful acts of their members. In Cox v Ministry of Justice the relationship between a prisoner working in a prison kitchen and the prison authorities was sufficient to qualify as a ‘relationship’ for vicarious liability. Barclays Bank v Various Claimants (2021) is relevant.
• The question in Mohamud v WM Morrison Supermarkets plc (2016) concerned the ‘course of employment’ question and whether the attack by the employee ‘closely connected' to his job of attending to the petrol pumps and the kiosk and serving customers. The Supreme Court unanimously accepted that the employee’s conduct was within the course of his employment. For further developments on this aspect, see Morrison Supermarkets v Various Claimants (2021).

Question 2

Springfield Florists has a clear and well-publicized policy prohibiting staff from carrying passengers in company vehicles. Ben, Springfield’s delivery man, is provided with a company van. Ben regularly delivers flowers in the evening on his way home from work and sometimes he gives his friend Ali a lift in the company van. One evening as Ben was leaving to deliver flower arrangements to a hotel, he agreed that if Ali helped carry the flowers into the hotel Ben would give him a lift home in the van. Through Ben’s negligence the van crashed on the return journey and Ali suffered serious injuries. Ali is claiming in negligence against Springfield florists.

Contrary to the policy prohibiting staff from carrying passengers in Springfield vehicles Ed, one of the florists invited the two boys from the local school to accompany him to the Flower Market where he offered to buy them lunch. Ed drove to a very secluded part of the Flower Market where he committed acts of sexual assault against the boys.

Advise Springfield Florists as to its liability (if any) to Ali and the boys.

Outline

The technique of answering problem questions requires applying the relevant law (and only the relevant law) to all the issues of liability which arise in the scenario. This must be done in the most logical order – this may be chronological according to the unfolding of events, or it may be according to the rights and liabilities of each individual party. It is important to be comprehensive; that is, to read and analyse the scenario so as to identify all the potential legal issues it contains. You must support each of your assertions with legal authority: case or statute law. In your answers you should only include facts of cases which will be specifically helpful to support your argument.
Vicarious liability is an issue which can arise within any tort scenario, in terms of whether the wrongdoer is an employee for whom their employer may be liable vicariously. It is always necessary to establish the three elements: the employment relationship, the tort and course of employment.

Ali

• The question indicates clearly that Ben is an employee of Springfield, so to establish vicarious liability the question is whether the accident occurs within the scope of Ben’s employment. In Twine v Bean’s Express Ltd a van driver expressly prohibited by their employer from giving lifts to unauthorized passengers was acting outside the scope of his employment.
• In Rose v Plenty vicarious liability was imposed despite the employer’s express instruction to allow a 13-year-old-boy to help deliver milk from a van. In this case the prohibited conduct was performed in furthering the employer’s business or to benefit the employer in some way. Ali may argue that helping to carry the flowers into the hotel was furthering the business of Springfield Florists.

The boys

• In this situations Ed’s wrongdoing involved a deliberate assault. The traditional Salmond test for course of employment examines whether the employee’s conduct was ‘a wrongful and unauthorised mode of doing some act authorised by the master'. The Salmond test was modified following the adoption of a ‘close connection’ test by House of Lords in Lister v Hesley Hall Ltd.
• In Mohamud v WM Morrison Supermarkets plc the Supreme Court held that course of employment required a consideration of two questions:
  (a) What functions or ‘field of activities’ have been entrusted by the employer to the employee (or, in everyday language, what was the nature of the employee's job)?
  (b) Whether there is a sufficient connection between the position in which the employee is employed and his wrongful conduct to make it ‘right’ for the employer to be held liable as a matter of social justice?
• The above test will need to be applied to the facts in the question to reach a conclusion on whether Springfield Florists will be vicariously liable for the wrongful acts of Ed