That wrongdoers should be liable for their own actions

is a fundamental principle on which the law of tort is

based. Critically analyze how to concept of vicarious
liability might seem to contradict this principle and
explain why.

The law of tort is based on the principle that tortfeasor (a person who commits a tort.)
should be held liable for their own acts that caused harm to another. However,
Vicarious Liability contradicts this principle, they hold another person liable for
the acts that the tortfeasor has done, even though he may not even know that act
has been done. This seems to be very unfair but in reality there are a few reasons
why this is necessary.

For someone to be vicariously liable for the acts of another there must be a
relationship between both parties- this justifies giving the latter responsibility for
the acts of the former. In order to decide whether vicarious liability applies in a
particular situation, the court would have to address two questions: was the
person who committed the tort an employee of the defendant and was the tort
committed in the course of that person’s employment? If this two conditions are
satisfied only can another person be held jointly liable for the acts of another.

In the case of Ready Mixer Concrete v Minister of Pensions, the claimants were
lorry drivers who did work for the defendants manufacturing company. They use
Lorries (truck) which had the company’s logo, had to wear the company’s uniform
and paint their Lorries with its colors and logo. They were held to be small
business man and not the company’s employees as they were not guaranteed any
work from the employers and maintained their own Lorries.

Hence, a person can only be liable for the actions committed by another if a
relationship Is established.

To be considered an employee, there are a few criterions to satisfy. In some cases a

written agreement may be established which states that the other person is not an
employee but this is by no means decisive, the courts would take into account other
factors.

1. The person must be willing to provide services in exchange for payment

2. He or she must agree to be subject to the employer’s control

3. The other terms of the contract are one that is consistent with the existence
contract of services.

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 (escape or avoid) 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 types 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 (a person employed by a
nightclub or similar establishment to prevent troublemakers and other unwanted
people entering or to eject them from the premises.) at the nightclub luminar
leisure when he committed battery (this is a physical act that results in harmful or
offensive contact with another person without that person's consent.) 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 not have known about.

However, casual workers would not be considered an employee and hence the
employer cannot he held liable for the torts committed 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 (doorkeeper) 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 was damaged. 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 the 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 modern industrial society, with its increasingly
sophiscated division of labor.

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 his employer not to
use children. He disobeyed this and asked a 13 year old to help him with his milk
delivering. Hence 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 work 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 the 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 of 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 employer’s equipment, but without a connection
there can be no vicarious liability. In heasman Clarity Cleaning Co. the employee
of a cleaning contractor was employed to clean telephones, and while doing so
used the phones to make long distance calls from client’s premise. They were 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.

(Mohsin Ehsan Muhaar(M.A Eng. in Linguistics, LL.B)Cell:03236437546)