Another important aspect of vicarious liability is whether employee acted in a course of employment or not. The employee should commit wrong authorized by the employer. On the other side, the master will avoid liability if he manage to prove that the servant acted on his own, unconnected to his employment.[3] A typical example is Mattis v Pollock (t/a Flamingo’s Nightclub), The Times, 16 July 2003. In this case the owner of the nightclub was held liable for the doorman’s attack to the claimant, because Court of Appeal found that the doorman was known to the defendant to be violent and aggressive, however he was allowed to work this way and caused a spinal injury of the claimant. This kind of cases illustrates that employer is liable fair, because he realized all the possible danger but made nothing to prevent a tragedy and it seems that he encouraged such behaviour. Furthermore, the doormen in addition to the desire of revenge tried to protect his employer’s property and, therefore, the club owner is liable.[4]
Lister v Hesley Hall Ltd [2001] 2 All ER 769 established a new approach in vicarious liability and overruled previous decision in Trotman v North Yorkshire CC [1998] 1 CLY 2243. According to the held, it is not enough simply to show that the employee unauthorized committed a tortious act, the defendant must prove that his servant acted of his own, without following the course of employment; it is a broader approach of the issue. It has been argued that in Lister v Hesley Hall Ltd [2001] 2 All ER 769 defendant company did not authorize abuse of the claimants and employees acted themselves, the employment only provided opportunity to do so. However, company was liable, because it did not perform its duties carefully as it did not know about abuse and, in addition, the ground for the employer’s liability was merely that they were better able to pay damages to the claimant. Now it might be seen as the law.[5]
Slightly different approach is taken for crimes, committed by employees. An employer will not be usually liable for the criminal acts of employees. For example, ST v N.Yorkshire [1999] IRLR 98, where Court of Appeal held that a deputy headmaster sexually assaulted with a teenager he took care of did not fail to perform his duties as a teacher on behalf of his employers. He denied his duty as a councilor to look after a children he took responsibility; therefore, his employers were found not liable. However, the liability still depends upon the employee having actual or apparent authority to undertake work or to carry out duties of the sort which have enabled him to commit fraud, and if the fraud is committed outside the course of employment then the employer will not be liable. On the opposite, if the employee carried out his professional duties in a criminal manner, the employer will be held liable, for example, Vasey v Surrey Free Inns [1996] PIQR P373.[6]
The word “fair” is very specific as everybody can define it in a different way, especially, in a subjective area of law. There is no definite answer what is fair and what is not. It is hardly applicable to the whole vicarious liability; it should be applied to each separate case. Many factors can affect the conclusion about what is fair. For instance, whether it was foreseeable that the employee commits a tortious act or not. In Mattis v Pollock [2003] 1 WLR 2158, as described above, the club-owner was aware of the doormen violent behaviour and it was reasonable to predict that the situation may turn into a tragedy. However, he took no action and was fairly punished. On the other hand, Lister v Hesley Hall Ltd [2001] 2 All ER 769 can be characterized as debateful, because the liability of the employer is not as obvious as in previous case and other factors, for instance, ability of the employer to pay damager, have been taken into account.
In conclusion, there is no exact answer to the question. Word fair itself is a subjective and it is difficult to apply for all the cases. However, some generalization can be made. Firstly, the employer should be liable if he could foresee and encouraged wrong behaviour of the employee or when the servant tried to save master’s property. Secondly, it might be unfair for the employer to be held liable when the employment merely gave an opportunity to do it, but the tort was not authorized by the employer. It is very serious and arguable issue. There is a case law system in the UK and leading case on vicarious liability Lister v Hesley Hall Ltd [2001] 2 All ER 769 indicates what is fair. Maybe in future there will be new precedents, which will change attitudes the question.
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[1] Wild C. & Weinstein S. “English law. Text and Cases. Sixteenth edition” Harlow: Pearson Education Ltd, 2010, p.448
[2] Wild C. & Weinstein S. “English law. Text and Cases. Sixteenth edition” Harlow: Pearson Education Ltd, 2010, p.448-451
[3] Vicarious Liability. Free Tort Law Study Guide [Internet] Available from: http://www.lawteacher.net/tort-law/vicarious-liability.php [Accessed 19th March 2012]
[4] Wild C. & Weinstein S. “English law. Text and Cases. Sixteenth edition” Harlow: Pearson Education Ltd, 2010, p.848-849
[5] Levinson J., “Journal of Personal Injury Law” December 2005 [Internet] Available from: http://www.1cor.com/1158/?form_1155.replyids=282 [Accessed 19th March 2012]
[6] Introduction to vicarious liability [Internet] Available from: http://www.lawteacher.net/tort-law/lecture-notes/vicarious-liability-lecture.php [Accessed 19th March 2012]
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anisek (student)
