Secondly, the tort must be committed by an employee. The liability is not automatically placed on the employer, where the general rule is the VL arises from a contract of services (employee) and not a contract for services (independent contractors). The courts would have to consider the following tests. In the past, the usual way of deciding whether the person is the employee is to look at the degree of control exercised over the employee. If the employer retained control over the work and gives instructions, the person is an employee. (Yemen v Noakes) The control test is however, an unrealistic way of distinguishing in modern employment situations where employers lack the necessary expertise to supervise.
The integration test was put forward by Lord Denning in Stevenson, Jordan and Harrison v Mcdonald and Evans, where it has to be asked whether the employee was the integral part of the business i.e whether he is part of the organisation structure. Hence, an independent contractor would work for the business but as an accessory rather than an integral part of it. In practice, the test is too vague to apply. Today, the courts would look at the economic test (multiple test) where as illustrated in Ready Mixed Concrete (South East) v Minister of Pensions. The courts would consider the following factors namely whether the employee provides work in return for payment, have agreed to work under the control of the employer and the situation characterised as a contract of employment is the method of payment, tax and insurance, provision of tools, working hours and the level of independence.
Until recently, rules governed under Mersey Docks and Harbour Board v Coggins and Griffiths, where someone was injured by a negligently-driven crane. The crane and the crane driver had been leant to a firm of stevedores. The stevedores had immediate control over the relevant operation which the crane was performing, but had no power to direct how the crane driver should control the crane. The stevedores and the Harbour Board disputed who was vicariously-liable for the crane driver’s negligence. The House of Lords upheld decisions of lower courts that the Harbour Board, being the crane driver’s general employer, retained responsibility for his negligence. A number of principles were laid out, namely, permanent employee is usually liable unless they can show good reasons why responsibility should be placed on employer who borrowed, reference should be made to the terms of contract, though this is not conclusive and where the employee is lent it is inferred that the hirer is the employer if the equipment and the employer is hired.
The Mersey Docks principle has enabled the courts to choose between two possible employees. Today, in Viasystems (Tyneside) Limited v Thermal Transfer (Northern) Limited & Others, the principle of double indemnity was introduced. It was considered to be more appropriate to use the principles of double indemnity to share principles between two possible employers. It now, seems that joint liability will apply in many ‘borrowed employee’ cases since there is always shared responsibility. Even if, the permanent employer is not present, they would have usually instructed the employee how to do the job, perhaps given training while borrowing employer will usually give day-to-day instructions. (though this depends on the type of work involved)
Viasystems is a landmark case, and a brave decision, in that it overturns the long-standing assumption, stemming back to Laugher v Pointer (1826) that there could be no dual vicarious liability. Giving the leading judgment, May LJ held that the enquiry should concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it. The identity of the employer was not determinative. The circumstances in which dual vicarious liability will exist will no doubt be developed in future case-law, and in the meantime the boundaries are likely to be tested by defendants adding other defendants in cases where the point is arguable. Given that out-sourcing, sub-contracting and the use of agency staff is an integral part of the modern economy, such situations are likely to occur relatively frequently. This is a bold decision that reflects the reality of the modern economy, and this will be an exciting area of law to watch.
Thirdly, the tort must be committed during the course of employment. An employer is only liable when the employee commits the tort within the course of employment. Hence, the employer will not be liable if the conduct falls outside the course of employment that is when he is in the ‘frolic of his own’. (Joel v Morison) As such, the employee has to be within the reasonable time and space of the employment (Stanton v NCB; Hilton v Thomas Burton) and within the work mode (Century Insurance v Northern Ireland), which does not include criminal acts such as personal vengeance (Warren v Henley’s)
Recent developments in the Law
Today, area of VL for criminal acts is not quite tidy because of the case of Lister v Hesley Hall (2001) which laid down the ‘close connection’ test. Lister case concerned a warden at the defendant’s school for boys with emotional and behavioural difficulties who had subjected the claimants to systematic sexual abuse. Here, the House of Lords departed from this approach in cases where the wrongdoing was intentional rather than careless. The House of Lords held that the proper approach to the course of employment is no longer to ask the simplistic question of whether the acts were modes of being authorised acts in the course of employment. A broad assessment should be adopted and the relevant question is whether the torts are so closely connected with the employment that it would be fair and just to hold the employers liable. In order to answer this, it is necessary to look at the task an employer had delegated to their employee. The school had the task of looking after the boys in its care, where it was the warden’s duty. The sexual abuse was ‘inextricably interwoven’ with his performing the task since it was carried out on the defendant’s time on their premise and during the day-to-day routine of looking after the children. Some argued that this is far from being closely linked and sexually abusing children could be said to be the complete opposite of the job of looking after them.
In Dubai Aluminium v Salaam (2002), the House of Lords confirmed that the correct test was whether there was close and direct connection between the employee’s duties and the criminal acts. Unfortunately, the phrase is fallible considering that the test of closeness is to be passed when it is fair for liability to be imposed. What exactly makes it fair or unfair to impose liability is not imposed. In fact, Lord Nicholls admits that what is ‘fair and proper’ inevitably involves a ‘value-judgement’ based on all of the circumstances and precedents. The Salmond test was just that one test and did not provide a conclusive answer in every circumstances and it was possible that the employee’s behaviour might satisfy the Salmond test and yet the facts when taken as a whole might suggest that there was no VL.
In Mattis v Pollock (2003), VL likely to be found in cases where using violence was an expected part of the employee’s job than where it was not. Here, the case concerns a bouncer who went back home to retrieve weapon to seek revenge by stabbing a customer thereafter. The act was a culmination of a series of incidents in which he behaved in an intimidating way to customers. It was held that it was not a separate event but part of the whole series of event springing from the bouncer’s violent behaviour towards the group of customers. The limits of Lister principle was seen in N v Merseyside Police (2006), where the claimant who came out drunk from a nightclub was offered a ride home by a police officer who raped her. The judge distinguished this case from Lister because the warden had been given the duty of looking after the boys and not in N. The only connection that existed was the uniform and warrant card to persuade the victim.
However, the Lister principles was questioned in the latest case of Maga v Birmingham Roman Catholic Archdiocese Trustees (2010), whether a Roman Catholic priest (Father Clonan), who had sexually abused a non-Catholic boy he had befriended and employed to undertake work related to the church and otherwise, could be said to be acting in the course of employment. in Maga Lord Neuberger M.R. found that despite the fact that the contact between priest and victim was based on attendance at a church disco and performing odd jobs within and outside the church, Father Clonan's role as a priest had allowed him to “draw the claimant further into his sexually abusive orbit by ostensibly respectable means connected with his employment as a priest at the church. In view of his work in bringing the gospel to others and thereby gaining their trust, he was never off duty. One obvious difficulty which derives from the failure of the HL in Lister is to provide a single version of its close connection test. It was contended that the focus should be on the relationship between the employer and the victim i.e. the nature of the duties given to the employee rather than the facts of each case or drawing questionable analogies as illustrated in the case of Maga.
There is also another problem of the doctrine of VL which is employer’s indemnity. Because VL makes employer and employee are joint tortfeasors, employers are allowed to in turn recover some damages from the employee based on the Civil Liability (Contribution) Act 1978 or the common principles in Lister v Romford Ice and Cold Storage, where the lorry driver ran over his own father. It was held that it was not only a tort against the father but also a breach of an implied term in the employment contract. The employer is entitled to damages equivalent to that paid to the father. The employer’s indemnity was criticised for undermining the whole principle of VL which is based on the employer’s best ability to pay out of insurance.
Conclusion
In conclusion, the doctrine is justified today even in situations like Lister which gives effect to the foundation principles of tort which is to ensure that tortious conducts are corrected through compensatory payments and spreading losses to those able to bear them. While the phrase ‘fair, just and convenient’ as was stated in Viasystems which is in line with the principles in Caparo Industries v Dickman is vague, this allows flexibility to develop and to be applied in new situations like in Lister and being mindful of the need to uphold fairness.