W10 – VICARIOUS LIABILITY AND REMEDIES
LECTURE 1: VICARIOUS LIABILITY
Two varieties of liability
1. Liability for one’s OWN actions or omissions (negligence, nuisance, etc)
2. Liability for OTHER people’s conduct (vicarious liability)
EXAMPLE: A employs competent B. While on the job, B carelessly
injures C. Already complicated because the general idea in tort is
that if you do something wrong you should be held liable and you
are responsible.
Who is liable for the injury? A will be liable for B’s tort! Because:
i. A and B stand in a certain relationship (e.g. employment),
ii. B’s tort falls within the scope of that relationship. E.g., the
restaurant owner employs a cook who beats someone up. It
would be UNJUSTIFIED for the owner to be liable for the cooks
torts excluding in employment scope. IS FRIENDSHIP A
SCOPE TOO? WHICH KIND OF RELATIONSHIPS?
Two questions to consider:
1. Which relationships attract vicarious liability? (AS DISCUSSED
ABOVE)
Gig businesses and gig workers? Independent contractors?
2. How do we determine the scope of a relationship?
What if B abuses the powers A gives them, e.g. child abuse?
Prelude: ‘non-delegable’ duties of care
Say A owes duty of care to C, but delegates the job to B (e.g. sub-
contracts part of teaching load). Is A now free of those duties of care?
Woodland v Essex CC [2013] per Lord Sumption at [23]
1. Yes! Duty falls on person undertaking activity: B. A need only
take care in selecting B. Delegation frees A from duties to C.
EXCEPT…
2. Duties ‘non-delegable’ when:
(1) C vulnerable & dependant on A’s protection;
(2) Antecedent relationship entails positive duty for A
to take care of C; (3) C cannot control how A
discharges that duty.
3. When (1) - (3) satisfied, A has duty to take ‘supervisory’ care, i.e. to
take care that B takes care (e.g. in sub-contracted teaching).
4. Difficulty of establishing (2): Armes v Nottinghamshire CC [2017]
5. And C still needs to prove that A failed to take care etc.
Vicarious liability – generally
But what if A has been careful, or negligence hard to prove?
A can still be vicariously liable for B’s tort if
(1) A and B stand in a relationship that attracts vicarious liability
(2) B’s tort falls within the scope of that relationship
(1) How do we tell which relationships attract vicarious liability?
o Typical example: employment. But what makes that the case?
, o And what if B is not an employee? e.g.
B does charity (or prison) work for A (no contract or payment)
B does gig work with A’s business (e.g. Deliveroo biker; Uber
driver)
B is a foster parent and A is a local authority
Various Claimants v Catholic Child Welfare Society [2012]
Sexual abuse of schoolchildren by members of religious order that
ran the schools; members not paid or under contract. Is order
vicariously liable?
o “[The law may] impose vicarious liability on the employer when
these criteria are satisfied:
(i) the employer is more likely to have the means to compensate
the victim than the employee and can be expected to have insured
against that liability;
(ii) the tort will have been committed as a result of activity being
taken by the employee on behalf of the employer;
(iii) the employee's activity is likely to be part of the business
activity of the employer;
(iv) the employer, by employing the employee to carry on the
activity will have created the risk of the tort committed by the
employee;
(v) the employee will, to a greater or lesser degree, have been
under the control of the employer”
- (per Lord Phillips
at [35])
Relationships ‘akin to employment’ attract vicarious liability too, if they
meet the above criteria (at [49]).
Held: order liable for torts of its teaching members.
Applying the test (Various Claimants Test)
Cox v Ministry of Justice [2016]: prison work (yes)
Armes v Nottinghamshire CC [2017]: foster parenting (yes)
Barclays v Various Claimants [2018] EWCA Civ 1670: abuse by doctor with
whom bank requested claimants to undergo physical exam (yes)
Kafagi v JBW [2018] EWCA Civ 1157: debt collection by bailiff (no)
o When is B working ‘on behalf of A’ and as ‘part of A’s business
activity’, rather that as an ‘independent contractor’?
o What about Deliveroo bikers or Uber drivers? Foster parents?
o What is the difference between Barclays and Kafagi?
An idea: Vicarious liability when B has reason to want A’s protection
against burden of repair in order to agree to act under A’s direction.
o Would B have reason to take A’s direction if A didn’t pay for B’s
torts?
o Maybe abuse cases instances of ‘non-delegable’ duty rather than
VL…
Does B’s tort fall within the scope of the relationship?
The Lister v Hesley Hall [2002] 1 AC 215 test:
LECTURE 1: VICARIOUS LIABILITY
Two varieties of liability
1. Liability for one’s OWN actions or omissions (negligence, nuisance, etc)
2. Liability for OTHER people’s conduct (vicarious liability)
EXAMPLE: A employs competent B. While on the job, B carelessly
injures C. Already complicated because the general idea in tort is
that if you do something wrong you should be held liable and you
are responsible.
Who is liable for the injury? A will be liable for B’s tort! Because:
i. A and B stand in a certain relationship (e.g. employment),
ii. B’s tort falls within the scope of that relationship. E.g., the
restaurant owner employs a cook who beats someone up. It
would be UNJUSTIFIED for the owner to be liable for the cooks
torts excluding in employment scope. IS FRIENDSHIP A
SCOPE TOO? WHICH KIND OF RELATIONSHIPS?
Two questions to consider:
1. Which relationships attract vicarious liability? (AS DISCUSSED
ABOVE)
Gig businesses and gig workers? Independent contractors?
2. How do we determine the scope of a relationship?
What if B abuses the powers A gives them, e.g. child abuse?
Prelude: ‘non-delegable’ duties of care
Say A owes duty of care to C, but delegates the job to B (e.g. sub-
contracts part of teaching load). Is A now free of those duties of care?
Woodland v Essex CC [2013] per Lord Sumption at [23]
1. Yes! Duty falls on person undertaking activity: B. A need only
take care in selecting B. Delegation frees A from duties to C.
EXCEPT…
2. Duties ‘non-delegable’ when:
(1) C vulnerable & dependant on A’s protection;
(2) Antecedent relationship entails positive duty for A
to take care of C; (3) C cannot control how A
discharges that duty.
3. When (1) - (3) satisfied, A has duty to take ‘supervisory’ care, i.e. to
take care that B takes care (e.g. in sub-contracted teaching).
4. Difficulty of establishing (2): Armes v Nottinghamshire CC [2017]
5. And C still needs to prove that A failed to take care etc.
Vicarious liability – generally
But what if A has been careful, or negligence hard to prove?
A can still be vicariously liable for B’s tort if
(1) A and B stand in a relationship that attracts vicarious liability
(2) B’s tort falls within the scope of that relationship
(1) How do we tell which relationships attract vicarious liability?
o Typical example: employment. But what makes that the case?
, o And what if B is not an employee? e.g.
B does charity (or prison) work for A (no contract or payment)
B does gig work with A’s business (e.g. Deliveroo biker; Uber
driver)
B is a foster parent and A is a local authority
Various Claimants v Catholic Child Welfare Society [2012]
Sexual abuse of schoolchildren by members of religious order that
ran the schools; members not paid or under contract. Is order
vicariously liable?
o “[The law may] impose vicarious liability on the employer when
these criteria are satisfied:
(i) the employer is more likely to have the means to compensate
the victim than the employee and can be expected to have insured
against that liability;
(ii) the tort will have been committed as a result of activity being
taken by the employee on behalf of the employer;
(iii) the employee's activity is likely to be part of the business
activity of the employer;
(iv) the employer, by employing the employee to carry on the
activity will have created the risk of the tort committed by the
employee;
(v) the employee will, to a greater or lesser degree, have been
under the control of the employer”
- (per Lord Phillips
at [35])
Relationships ‘akin to employment’ attract vicarious liability too, if they
meet the above criteria (at [49]).
Held: order liable for torts of its teaching members.
Applying the test (Various Claimants Test)
Cox v Ministry of Justice [2016]: prison work (yes)
Armes v Nottinghamshire CC [2017]: foster parenting (yes)
Barclays v Various Claimants [2018] EWCA Civ 1670: abuse by doctor with
whom bank requested claimants to undergo physical exam (yes)
Kafagi v JBW [2018] EWCA Civ 1157: debt collection by bailiff (no)
o When is B working ‘on behalf of A’ and as ‘part of A’s business
activity’, rather that as an ‘independent contractor’?
o What about Deliveroo bikers or Uber drivers? Foster parents?
o What is the difference between Barclays and Kafagi?
An idea: Vicarious liability when B has reason to want A’s protection
against burden of repair in order to agree to act under A’s direction.
o Would B have reason to take A’s direction if A didn’t pay for B’s
torts?
o Maybe abuse cases instances of ‘non-delegable’ duty rather than
VL…
Does B’s tort fall within the scope of the relationship?
The Lister v Hesley Hall [2002] 1 AC 215 test:
