In Ferguson v Dawson, the claimants were employees even though the written contract had expressly stated that they were independent contractors. They are thus protected by the building safety legislations. This is justified as employers cannot evade responsibilities simply by classifying them as self-employed.
Sometimes employers would choose to employ workers from agencies, they would thus not be liable for these type of workers as they are merely of a temporary nature. In most cases they would not be vicariously liable for the act of such workers, however there are instances where there can be held liable. In the case of Hawley v Luminar Leisure. Mr Warren was a bouncer at the nightclub luminar leisure when he committed battery on the claimant, causing him permanent brain damage. As Mr Warren was an agency worker, Luminar Leisure sought to evade responsibility, however he was still held liable as Mr Warren would be recognized by the public as working for Luminar Leisure and Luminar did not have to use an agency to supply door staff, but did so as they wanted to avoid certain aspects of employment law. Hence they were vicariously liable for Warren’s actions which they themselves could nothave known about.
However, casual workers would not be considered an employee and hence the employer cannot he held liable for the torts commited by them (Carmichael v National Power) One employer may lend
An employer will only be liable for the torts committed by another if it is deemed that the tort was committed in a course of the wrongdoer’s employment. This seems to justify incurring vicarious liability on the employer as this means that the employer will be liable not only where they have permitted the employee to do the wrongful act but also where the employee had not been given such permission.
The Salmond on Tort test laid down where something will be classified as ‘in course of employment’ 1. It is a wrongful act authorized by the employer
2. It is a wrongful and authorized mode of doing some act authorized by the employer.
Hence, when the wrongful act is so close connected with the task the employee has been asked to do that it could be considered merely doing that tast even if not in the way the employer had wanted or authorized. In Bayler v Manchester Railway Co, the railway porter pulled the claimant off the train by force, thinking that he was on the wrong train. The porter was merely trying to do what he was authorized to do, even though he was doing it so badly as to have completely the opposite effect. An employer may attempt to expressly prohibit an act to limit the responsibility that they would have over the employees. However this is only limited to the scope of the job itself and not to how the job is done. In Limpus v London general Omnibus Co a bus driver had been given written instructions not to race with the other buses. He disobeyed this order and caused a collision with the claimant’s bus which damaged it. He was doing an act which he was authorized to do. Driving the bus in such a way to promote the defendant’s business. He was within the course of his employment even though the way he was doing th job was quite improper and had been prohibited.
Vicarious Liability should be imposed because sometimes the employers are the ones with the financial resources. They have ‘deeper pockets’ and are more likely to be insured. Many employers are large companies –placing liability on them means losses can be passed onto consumers in the form of higher prices. This provides justice to the claimant and so spread thinly over a lot of people rather than just imposed on one.
It can also be argued that the employers have necessary control over the employees and therefore should be liable for their acts. While this may have been persuasive in the past, it is much less so in mdern industrial society, with its increasingly sophiscated division of labour. In many cases the employees may have technical knowledge not shared by the employers. However the modern application of this principle is that employers set profit targets and/or performance targets either formally or informally and if these mean that there is insufficient time or staff to do a job properly, with the result that someone is injured by negligence, it is the employers who should be responsible.
However this is unjust where the employer is presumed to have control over the work done ‘in course of employment by the employee but in fact, they had expressly prohibited it. In the case of Rose v Plenty, the claimant was under a contract to deliver milk. He had been expressly prohibited by him employer not to use children. He disobeyed this and asked a 13 year old to help him with his milk delivering. It can be seen that the claimant had no control over his actions,and was not negligent himself, but was still held to be liable.
Employers benefit from the wrk of their employees and so ought to be liable for any damage the employee may cause in its performance. This is linked to the profit targets above, it would be very unfair if the employees were sued in negligence when effectively they had been forced to be negligent by a cost cutting employer who would thereby profit from that negligence.
In the case of Hawley v Luminar Leisure, the
It had been suggested that commision of a tort by an employee in the course of their employment implies that the employer was negligent in selecting that employee and incurs liability on that basis. There is however no evidence that the courts approach the issue in that way and in any case one of the negligent act does not necessarily mean that an employee is unfit for work. Negligent hiring is where employer is liable for negligent act or omission of any employee acting within the course. May be found where employee had a reputation or record that showed his or her propensity to misuse the kind of authority given by the employer and this record would have been easily discoverable by the employer had exercised due diligence (Lister v Hesley Hall)
This is because the commission of tort by an employee effectively shows that the employer was negligent in selecting gthe employee and hence should incur liability on that basis. Their carelessness in hiring a criminal for a job has provided them access to potential victims without doing the necessary examination resulting in exposing other to harm, hence they should be vicariously liable. However one negligent act does not necessarily mean that an employee is unfit for work.
Catholic Child Welfare Society v The institute oc Brothers of Christian School
There is some evidence to show that the imposition of liability on employers encourages them to take care to prevent work practices that could result in accidents there could be a temptation for employers to turn a blind eye especially if the practices have a benefit to themselves, if they knew liability would be restricted to the employee.
The employers will not be liable if the employees have committed a tort that is considered a ‘frolic of their own’ Hence this can be seen that it is not a complete liability that the employers have. An employer will not be responsible for acts done by employees which have nothing to do with their employment. The employee’s job may provide them the opportunity to commit the wrongful act. They may do so during work time, or using the employers equipment, but without a connection there can be no vicarious liability. In heasman Clarity Cleaning Co the employee of a cleaning contractoir was employed to clean telephones, and while doing so used the phones to make long distance calls from client’s premise. Theywere not vicariously liable, the unauthorized use of the phone was not connected with cleaning it and could not be regarded as cleaning it in an unauthorized manner.
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