Beruflich Dokumente
Kultur Dokumente
Faculty of Law
22 January 2015
govern every aspect of our lives, but there is still plenty of room for
the judges to exercise their common law powers to make new law,
and this is true of the rest of the common law world. I refer to the
judges, but the reality is, of course, that changes in the common law
seek relief from a party who has the resources to pay this. Often the
1This speech can also be found at the Hong Kong Law Journal under the citation
of “(2015) 45 HKLJ 29”.
1
individual man or woman whose wrongful act has caused the damage
circumstances the victim, with the aid of his lawyer, looks for
done nothing wrong for the tortious act of someone else. The first is
the claimant. Our courts have recently expanded both the scope of
2
employment”. There will normally be no prior relationship between
reasonable care to see that he, or his property, is not harmed. That
I am first going to show you how the law of vicarious liability has
days when society was divided into two classes, properly described
a master was held liable for the torts of his servant if these were
3
“Vicarious liability is the creation of many judges who have had
all”.
When I started at the Bar over fifty years ago the law of vicarious
liability had been unchanged for many years. The requirements for
defendant;
in it. Had his chauffeur had an accident on the way in he would have
4
been vicariously liable, because the chauffeur was his employee and
If, however, he had taken a taxi and the taxi driver had had a
collision, he would not have been liable. That is because the taxi
contractor who has performing a service for you, even if the service
was identical in kind to one that might have been provided by your
had the right to dictate to his employee not merely what he should
do, but how he should do it. He could not dictate to the independent
his chauffeur not to drive so fast , but he was not entitled to give the
Perhaps this distinction was one of the reasons why an employer was
liable for the torts of his employee but not those of an independent
5
contractor whose services he had engaged. The fact that he was
entitled to direct his employee how to perform his duties meant that
At all events the first thing that you had to prove to establish
vicarious liability was that the person who had caused you the harm
was the employee of the person you were seeking to hold liable.
The second thing that you had to prove was that the person who had
caused you the harm was acting “in the course of his employment”
when he did so. What does that mean? Salmond on Torts, a leading
text book on the subject, gave the same definition of this in no less
than 21 editions:
6
The chauffeur, or in the olden days the coachman, provides a good
of his employment, and the master will be liable. If, however, while
without permission in order to take his mistress off to the races, and
This is because the coachman was not acting in the course of his
I am going to show you how the judges have extended the scope of
liability in two ways. First by holding that vicarious liability can arise
deliberate wrongful acts that are the very opposite of what the
7
For over 200 years the courts have recognized that the existence of a
a crane, was hired out to the third party together with its operator.
Ltd3, back in 1893, the defendants hired out a crane and its operator
of the crane – “up a bit, down a bit, left a bit” and so on. In the course
3 [1893] 1 QB 629
8
negligence. He was to be treated as employed not by them but by the
Some fifty years later exactly the same test was adopted by the House
result.
Harbour Board had hired out a crane together with its driver, to a
Harbour Board retained the power to dismiss him. The crane driver
4 pp 633-4
5 1947 [AC] 1
9
The House of Lords held that the Harbour Board, and not the
stevedores had no control over the manner in which the crane was
By this time the test of whether or not the employer could control the
manner in which the employee carried out his duties had become out
often employed because they have skills that their employers lack.
Ship owners are vicariously liable for the negligence of the master
they employ despite the fact that they cannot and do not instruct him
under the control of a third party, should that third party be treated
10
In his great work on vicarious liability written over half a century
7commented:
This is precisely what the courts in the United States did where an
many years no layer in England had the initiative to invite the Court
11
Then, in 2005, came the case of Viasystems (Tyneside) Ltd v Thermal
was not employed by the contractors who were installing the air-
have dual vicarious liability and adjourned the appeal so that this
although for 180 years courts had proceeded on the basis that only
one defendant could be vicariously liable for a tortious act, there was
the possibility of dual vicarious liability and, on the facts of the case,
12
So both the second and the third defendants were held to be jointly
vicariously liable. Giving the leading judgment May LJ held that the
how the fitter did his work. On the facts the head contractors and the
employers of the negligent fitter’s mate. The other Lord Justice, Rix
speaking, that those who set in motion and profit from the activities
work had long been an important and sometimes critical test of the
master/servant relationship.
The courts had, however, imperceptibly moved from using the test of
9 para 55
10 paras 59 and 64
13
He questioned11 whether the doctrine of vicarious liability was to be
for his own benefit. Accordingly, what one was looking for was:
Vicarious liability was certainly on the move in this case, first in the
the case of Rix LJ, in formulating a test of vicarious liability that was
11 para 79
14
I was much influenced by Rix LJ’s analysis when writing what was the
judgment with which all the other members of the Court agreed. The
case has a long title 12 but I shall call it simply the Christian Brothers
Case. The subject matter of this case was one that is unhappily very
It has become apparent that there have been many cases in the past
are vicariously liable for this abuse. Such claims can raise two issues.
abusing a child can ever be treated as something that has been done
12The Catholic Child Welfare Society and others v Various Claimants and the
Brothers of the Christian Schools and others [2012] UKSC 56
15
The abuse in the Christian Brothers case had been carried out by
The mission of the Institute and of each of the lay brothers who
Institute and the managers of the school, alleging that they were both
At first instance and before the Court of Appeal their claim against
the managers of the school succeeded, but their claim against the
16
Institute failed on the ground that the Institute was not the employer
of the brothers.
brothers. But they alleged that the Institute was jointly liable with
them on the basis that the Institute shared responsibility for the
conduct of its brothers, although it did not actually employ them. The
because they were responsible for the running of the school and
We held that the Institute was jointly vicariously liable with the
managers of the school. It was true that the Institute of which the
brothers were members did not employ them. Indeed the brothers
entered into deeds under which they undertook to transfer all their
material needs. But we held that this meant that their relationship
with the Institute was even closer than that of employer and
17
relationship of the brothers to the Institute akin to that of
employment.
body;
undertake it.
they were bound by the vows of obedience that they had taken.
Let me pause to summarise the position thus far. So far as the first
part of the test for vicarious liability is concerned, the common law is
18
Furthermore, when considering that question, control of the
wrongdoer no longer has the significance that it had in the past. More
integral part in the business activities of the employer when the tort
was committed.
committed the wrongful act did so “in the course of his employment”
provided that they are so connected with the acts that he has
13 1st Ed pp 83-4
19
This is a grey area. What is the nature of the connection that must
exist between the unauthorized wrongful act and the act that the
law has again been on the move. It has long been established that if
order to assist him and then injured him by negligent driving. The
Court of Appeal held that the milkman had been acting in the course
by lighting a cigarette and throwing away the match when fuel was
being transferred from the lorry was held to have been acting in the
course of his employment when doing so, even though smoking was
20
In the Christian Brothers case the claim was in respect of sexual
claim that the Yorkshire County Council was vicariously liable for
sexual assaults carried out on a child by their employee who was the
Court rejected the claim. It applied the Salmon test. Could the
out the teacher’s duties.” Butler-Sloss LJ and her colleagues held that
21
an act of the teacher can be an unauthorized mode of carrying
But Trotman was held by the House of Lords to have been wrongly
difficulties.
whom, many years later, brought an action against them alleging that
they were vicariously liable for the abuse. They lost at first instance
and in the Court of Appeal, but won in the House of Lords. Their
authorized act. In its place some of them at least substituted the test
of whether the wrongful acts were “so closely connected with [the
17 [2001] UKHL 22
18 Lord Steyn at para 28, Lord Clyde at paras 37 and 50, Lord Hutton at para 52.
22
“…the sexual abuse took place while the employee was engaged
employment”
the [County Council] and they in turn had entrusted their care
position as warden and the close contact with the boys which
23
In the Christian Brothers case we applied the reasoning in Lister and
enhanced the risk that the victim or victims would suffer the
going to turn to the other topic of this lecture – the concept of the
19 Para 86
24
imposing liability for the wrongdoing of another, will strike you as
more satisfactory.
plaintiff’s wall from the use he made of it, but I think that the
use of the party wall, exposing it to this risk. If such duty was
20 (1866) LR 1 Ex 265
21 (1883) 8 App Cas 443
22 p 445
25
cast on the defendant he could not get rid of the responsibility
liberty to employ such third person to fulfill the duty which the
fulfilled.”
way of getting round any difficulties that arise under the doctrine of
person committing the negligent act was not his employee. Some of
World War the House of Lords had invoked the doctrine in respect of
26
get round the defence that then existed of common employment in
Wilsons & Clyde Coal v English24. Lord Macmillan held of the duty25:
One of the areas where the judges were having difficulty in applying
In Gold v Essex26 the Court of Appeal held that the hospital authority
27
liability, holding that the radiographer was the employee of the
duty27:
case was Tom Denning KC. The headnote records that he argued:
duties properly”
27 p. 301
28
In the subsequent case of Cassidy v Ministry of Health28 the issue was
whether the Ministry was liable for the negligence of a doctor and a
had become) found himself the most junior member of the Court of
Appeal. The other two members of the court found in favour of the
critical to their analysis that the doctor and surgeon were employees
charge of the school was held to have acted “in the course of his
29
That case might have been decided instead applying the doctrine of
29 paras 54 and 55
30
land. They are liable if they themselves fail to perform the duty
for the tort of an employee, for the warden in that case was an
Essex County Council30. Lord Sumption gave the only judgment, with
young school-girl, had gone with her class for the weekly swimming
30 [2013] UKSC 66
31
curriculum. There she got into difficulties and was not rescued in
time to avoid serious brain damage. This was alleged to be due to the
The Council was responsible for the school, but was not vicariously
liable because the lifeguard was not their employee. She had
care. The Supreme Court upheld the claim. Lord Sumption held31 that
the time had come to recognize that the minority reasoning of Lord
were as follows:
in care homes.
31 para 23
32
(2) There is an antecedent relationship between the claimant
parties.
33
thus delegated to him, the defendant’s custody or care of
the claimant and the element of control that goes with it.
(6) The third party has been negligent not in some collateral
defendant to him.
The common law has been on the move in this area and I doubt
34