Vicarious Liability in Employment: Legal Principles

Vicarious Liability in Employment Law

Key Conditions for Employment (Mackenna J)

Mackenna J outlined three conditions for a contract of employment:

1. The employee agrees to provide their work and skills to the employer in return for a wage.
2. The employee agrees, expressly or impliedly, to be directed as to the mode of performance.
3. The terms of the contract are consistent with a contract of employment.

Atkin's Approach to Employment

Courts may be prepared to find a relationship akin to employment if it is just, fair, and reasonable to impose vicarious liability as a whole.

Case Example: In JGE v Portsmouth, a judge ruled that a Bishop in the Roman Catholic Church was vicariously liable for sexual abuse committed by a priest.

Cases on Vicarious Liability

Various Claimants v Catholic Child Welfare Society

Former children at a children's home sought damages for sexual and physical abuse. School management was not found liable.

Cox v Ministry of Justice

Cox, a catering manager at a prison, was in charge of four staff and twenty prisoners. She asked a prisoner to carry some goods. The prisoner dropped a bag of rice, causing it to spill. Cox bent down to pick it up, and another prisoner slipped and dropped another bag of rice on her back. The court found no vicarious liability in this instance.

Lending of Employees

Case Example: Mersey Docks v Coggins & Griffith

Factors to consider:

• Who is entitled to give orders regarding what work to do and how it should be done?
• Who is the paymaster?
• Who has the power to dismiss?
• How long was the employee hired?
• Was a machine also hired?

Case Example: Viasystem v Thermal Transfer - Liability can be shared among employers.

Course of Employment

If an employee is on a "frolic of his own," they are not within the course of employment.

Case Example: Storey v Ashton - No course of employment found.

Case Example: William v A & W Hemphill - Course of employment found; there was still a connection to the job.

Prohibited Conduct

The question is whether the mode of doing an act was prohibited or the entire act itself was prohibited. The former may fall within the course of employment, while the latter is outside the course of employment.

Case Example: Limpus v London General Omnibus - The act of driving a bus is authorized, but racing would be an improper mode.

Criminal Acts by Employees

Case Example: Lister v Hesley Hall - If the tort is closely connected to the employment, the employer may be liable.

Case Example: Dubai Aluminium v Salaam - Affirmed the "close connection test" as an appropriate test involving criminal acts by the employee.

Case Examples: Mattis v Pollock, Gravill v Carroll, Mohammad v WM Morrison, N v CC Merseyside Police - The employer was not liable as the employee was off duty, thus falling outside the course of employment.

Sexual Abuse

Case Example: Maga v The Birmingham Archdiocese of the Roman Catholic Church - The church was held liable for the conduct of a priest, even when this was done off duty.