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What is Vicarious Liability?

Info: 4913 words (20 pages) Essay
Published: 21st Sep 2021

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Jurisdiction / Tag(s): UK Law

Based on the case, the party involved are A is an employer and B is an employee whereas C is the third party. The situations disclose that A can be liable for the negligence act committed by B against C. It is because an employer is liable for damages caused to the third party by his employee which is called as employer’s vicarious liability.

Vicarious liability is a word which combined with two elements which are vicarious and liability. Vicarious means felt or experienced by reading or watching about somebody else to do something rather than by doing it yourself. And, liability means the state of being legally responsible for something. Therefore, vicarious can be defined as a concept used to impose strict liability on a person who does not have primary liability, that is, not at fault. Vicarious liability is not a tort. Literally, it means that one person is liable for the torts of another. The employer is liable for the torts of his employee. This liability arises only when the employee is acting the course of his or her employment.

There are a variety of situations in which a party may be charged with vicarious liability. For example, an employer may be liable for an accident caused by an employee as the result of the negligent operation of a delivery vehicle. Often, parents may be held vicariously liable for the negligent acts of their children.

Vicarious liability can be established where a duty of care imposed on an employer has been broken, but the claimant cannot identify which employee breached it. An employer, then, will not escape liability where a particular employee of his cannot be identified to have been responsible for the breach. In the case of Roe v Minister of Health, it was stated that where the claimant established negligence on the part of one or more of several employee of the defendant hospital, the defendant authority was vicariously liable despite the fact that the claimant could not prove which of the employees had been negligent.

The three main elements that need to be established and considered are relationships between employer v employee, tortious act of negligence committed and within the course of employment.

Employer-employee relationship

The doctrine of respondeat superior is based on the employer-employee relationship. The doctrine makes the employer responsible for a lack of care on the part of an employee in relation to those to whom the employer owes a duty of care. For respondeat superior to apply, the employee’s negligence must occur within the scope of her employment. It is important to know whether B is an employee of A and also to determine whether B was within the scope of employment when the negligence act was committed.

In reference to Abbott et al., a person is said to be a servant if his employer retains a right of control not only the work he does, but also the way in which he does it. In sense, the employer is the party that state the work policy of the employee and in charge of the employee when he is carrying out his duties as an employee.

The relationship of employer and employee arises only from a contract of employment, either expressed or implied. The common law allows employers have the right to hire whom they pleased and the employees have the right to choose their employers as well. Moreover, the relationship of employer and employee cannot be imposed upon the purported employer or employee without permission. Any one who voluntarily performs the duties of an employer, cannot subject the employer to the liability of an employer by that act. But, the relationship may be implied by conducting which demonstrates the parties agree that one is the employer and the other is the employee.

Indeed, it can be said that B was A’s employee at the time of the collision with the claimant. In the statement above, he was carrying out his duty as a truck driver by delivering plywood for A to their customer when the accident occurred. The accident had resulted into the claimant’s damages and injuries suffered. So, it can be asked; where A can be liable to B’s responsibilities? It can be said that the accident occurred during B’s course of service to A and consequently making him liable for the accident.

There are three types of test which will determine the relationship between employer and employee are the control test, the organization test and the multiple test.

The control test

The first significant test which the courts developed was the so-called control test. This was first executed in the nineteenth century case of Yewens v Noakes. In this case, the Respondent was a hops merchant and possessed certain houses, which had an internal communication throughout, and which were used for the purposes of his business. Keppel looked after the houses, and lived in them for this purpose, but he was also a clerk in the Respondent’s pay at a set annual salary. He lived in the houses with his wife, a child, and a servant. The case concerned the payment of inhabited house duty, and a key question was whether Keppel was the servant of the Respondent. It was held that in this instance, Keppel was not (and, therefore, the Respondent was liable to pay the duty). On appeal, however, it was held that the premises were held purely for trade purposes, and as Keppel’s position was simply that of a caretaker, the exemption claimed was allowed. A servant, it was stated, is a person subject to the command of his master as to the manner in which he shall do his work (Bramwell, LJ). The question of whether a person is an employee, then, according to this test, depends upon the degree of control which the ’employer’ exercises over the worker.

This test was furthered in the case of Performing Rights Society v Mitchell and Booker, which stated that, the final test, if there is to be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant. This test proved to be flawed when considered in relation to skilled workers whose qualifications exceeded that of their employers.

In the case of Walker v Crystal Palace Football Club, whereby it apparently became necessary to establish whether Mr. Walker as under a contract of service to the club when he got injured as a result of his negligence at work. It was important to know that he was subject to the training and method of play both on the pitch and training ground from the coach. Rather than that, if the control test was strictly interpreted, skilled workers would be identified as independent contractors who were unable to rely on the vicarious liability principle against the employer, the football club.

Consequently, the courts deemed it fit to develop another test that reflected this development in the workforce, as the courts ruled in favor of Mr. Walker and recognized that skilled and professional people could be employees as well. From that case, it can be highlighted that A cannot relieve himself off the liability of B even if he termed him as an independent contractor. So, B’s action makes A has to vicarious liable to the damages and injuries suffered by C due to the negligence act committed by B at work.

The organisation test

This test was devised by Lord Denning in Stevenson, Jordan & Harrison Ltd v MacDonald and Evans. In this case, Lord Denning stated that one feature which seems to me to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it. This test has also been criticised, however, on the grounds that contracting out, especially in the modern business world, can be integral to business, so the test becomes inconsistent.

The Multiple test

This test was first established in the case of Ready Mixed Concrete (South East) Ltd v MPNI. The test is based upon the realisation that no one deciding factor can distinguish between contract of service and contracts for services rendered, since the employment relationship is far more complex and there are a number of issues that require to be taken into consideration. In Ready Mixed Concrete, the distinction was crucial from a tax point of view since, if the appellants were to be deemed as employers, they themselves would be liable to pay the National Insurance contributions of the employee lorry drivers. McKenna J began by setting aside the facts of the case that fell into either the employment or self-employment categories. For the former, this consisted of the fact that the Lorry was painted in the colours of the company and was for the exclusive use of the company. The team of drivers also had specific orders to obey and they were provided with a minimum income guarantee of £1500 per annum. For the latter, the lorry was purchased by the drivers via a company loan, which was subsequently serviced by the drivers. The drivers could also delegate their driving duties but the company did reserve the right to insist on a particular driver. Finally, the drivers were guaranteed a minimum payment and extra were determined on the basis of the amount of concrete that they borrowed.

McKenna J then assessed these facts against three conditions that he deemed to be required in order for the contract to be that of a contract of employment. Firstly, skills must be provided in exchange for a wage, secondly, there should be an element of control exercised on the part of the employer and thirdly, the provisions of the contract ought to be consistent with a contract of service.

McKenna J held, on the basis of there being freedom to delegate, that the contract was one of self employment. This is easily a flawed answer from the point of view that many supervisory or department Head employees are given powers of delegation however the important issue here is that the fundamentals of the test were accepted.

In the far more recent case of Lee Tin Sang v Chung Chi-Keung, a different approach was utilised. The relevant question was ‘is the worker in business on his own account?’ In order to answer this question, the court will consider such things as who owns the tools used, who paid for the materials, and whether the worker stands to make anything from a profit to a loss on completion of the enterprise. An example of an employee according to this test would be a building worker who is paid, but neither hires his own help nor provides his own equipment and has no say in the control of the site. This test, then, is based upon personal investment in the enterprise.

With all these tests, there remain certain categories of worker who are still problematic. Hospital staffs, for example, have caused considerable trouble. It is now generally held that nurses, radiographers, house surgeons and assistant medical officers in full time service of hospitals are employees, as will surgeons and consultants. Borrowed employees also create a problem, as was identified in the case of Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd. When a person is lent by his employer to another, whose employee does he become? It was held that someone remains the employee of the general or permanent employer although another employer borrows his services.


In everyday life, negligence could include a lack of care for the consequences of one’s actions or using less care than that of a reasonable person. For example, there is an offence of ‘negligent driving’. Negligence is also a tort which depends on the existence of a breaking of the duty of care owed by one person to another. Negligence is also simply can be identify as that someone causes injury or loss to another by carelessness or recklessness. The legal term is “failure to use a reasonable amount of care when such failure results in injury of damage to another”. According to the Oxford dictionary, negligence can be defined as the failure to give somebody or something enough attention and care. All these above explanation are well defined the meaning of negligence.

One well-known case is Donoghue v. Stevenson, where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail had not been visible, as the bottle of beer in which it was contained was opaque. Neither the friend who bought the bottle for her, nor the shopkeeper who sold it, were aware of the snail’s presence. The manufacturer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. The majority of the members of the House of Lords agreed (3:2 ratio) that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbours. He quoted the Bible in support of his argument, specifically the general principle that “thou shalt love thy neighbour.”

Another important aspect of tort is negligence which was defined in Blyth v Biringham Waterworks Co., as the omission to do something which is reasonable man, guided upon those considerations which ordinary regulate the conduct of human affairs would do, or do something which a prudent and reasonable man would not do. In order to succeed in a case of negligence, there are three main elements that need to be emphasized which are the defendant owned the claimant a duty of care, the defendant breached that duty of care and the claimant suffered damages or harm as a result of a duty. Through the court ruled that Birmingham Waterworks Co. had installed the pipes that frosted and limited drainage for Mr. Blyth, they could not foreseen the frost occurrence as Birmingham had never experienced such cold previously.

Can the respondent (if there is a case to answer), A said to be negligent? To succeed in a negligent, the claimant must prove that the defendant owe to him or her a legal duty of care. He or she has been guilty of a breach of that duty and that damage has been caused to the claimant by that breach.

In general, a tort cannot be specified by reference to a particular act or omission. It is possible to define it by reference to the origin of the rule and the legal consequences of its breach. The law of tort deals with a wide variety of wrongs, including intentionally or negligently causing physical injury to another, interfering with the enjoyment of another’s land and offence. Besides, a tort needs to be differentiated from a breach of contract, a breach of trust and a crime. Each individual tort has their own particular rules governing liability, but in common the claimant must attest whether the defendant’s conduct has been intentional or negligent. Thus, liability is usually based on fault and also the tortuous act or omission that caused some damages to the claimant. Moreover, one of the important functions of tort law is compensation, as it is concerned with the redress of wrongs or injuries by means of a civil action by the victim. In the case of this assignment, it needs to be focused on whether A can be liable for the negligence act committed by B against C where A is an employer, B is an employee and C is the third party. Besides, it also needs to be known that what kind of liability can be imposed against A for the negligence act committed by B against C and the elements need to be fulfilled in order to transfer the liability from B to A.

Elements of negligence claims

Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, let’s assume that a particular tort has three elements. Each element must be proven. If the plaintiff proves only two of the three elements, the plaintiff has not succeeded in making out his claim.

Each is defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having three elements like duty of care, breach of duty and damages/harm.

Duty of care

A duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeable harm others. It is the first element that must be established to proceed with an action in negligence. The plaintiff must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability in tort. The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual), but eventually become related in some manner, as defined by common law (meaning case law).

According to the case of Donoghue v. Stevenson, Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbours. He quoted the Bible in support of his argument, specifically the general principle that “thou shalt love thy neighbour.”

Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the legal concept of common law.

When the law imposes a duty on an officer, whether by common law or statute, and he neglects to perform it, he may be held accountable for such neglect and in some cases such neglect will amount to forfeiture.

Based on Hay (or Bourhill) v Young case, a motorcyclist was killed in a road accident for which he was responsible. A pregnant woman, who had got off a tram at scene of the accident (having heard the noise of an accident), claimed that when she reached the scene of the accident she saw blood on the road and as a result suffered shock which put her into premature labour – resulting in the loss of the baby. She subsequently brought a claim in relation to nervous shock and the resulting loss/damage. House of Lords held that there was insufficient proximity between the motorcyclist and the claimant. There was not a duty of care, she was not present at the scene of the accident (she had arrived after the accident had occurred). The Courts require a very close degree of proximity in these types of nervous shock or psychiatric harm cases.

Whilst for duty of care, in the common law case of Heaven v Pender, Lord Esher stated that ‘whenever one person is placed in such a position by circumstances with regard to another that every one of the ordinary sense who think would at once recognize. While, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger or injury to the person or property of the other. Thus, a duty arises to sue ordinary care and skill to avoid danger. This is parallel to and it can be deduced from the ‘neighbor principle’ that is applied to most of the cases which involves an individual’s duty of care to the general public’.

In this case, B negligently hit C’s car and caused injury but it needed to be came to knowledge that B who drove truck was not feeling well and was carrying out his duty as a driver for A which was his employer. According to the case of Roberts v Ramsbottom, D collided head on with a parked vehicle and causing injury to its occupants. However, D claimed that he was not liable because he had unknowingly suffered a stroke 20 minutes earlier. This affected his mind and he could not drive properly with unfit condition to drive. Moreover, he has sufficient awareness of his surroundings and traffic conditions to control the car, although in an inadequate way. It was held that where a driver retains some control, even if imperfect, he must be judged by the objective standard of a reasonable driver. In this case, even though D was not morally to blame because of the nature of the disabling symptoms, D had fall this objective standard and was liable.

This can be applied in the issue of the assignment whether B to be charged for his negligence act committed against C if he is an independent driver. Rather than that, to any contractual duties owed by an employer to his employees, an employer has a common law duty to act with reasonable care towards his employees. In order to see whether he had discharged this duty, it will be necessary to consider among other things, whether he has given a proper tools, competent staff, machinery, and a safe system of supervision and work.

In this case, A which was the employer failed to ensure a safe system of work as he let B (employee) to perform his duty as a driver even though knowing B was not feeling well on that particular day.

Breach of duty of care

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person, who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. Similarly, in this case, A failed to ensure that his employee was physically fit to carry out his duty as a driver which resulted into the collision.

An example is shown in the facts of Bolton v. Stone, a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, ‘Reasonable risk’ cannot be judged with the benefit of hindsight.

As Lord Denning said in Roe v. Minister of Health, the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.

In the case mentioned in the assignment, B has breached the duty of care since he was aware of the surrounding on the road while driving until negligently act hit against C’s car. Besides, in the breach of duty of care, A and C can sue B for the breach. According to the case of Murphy v Brentwood DC, where it was held that local authority owed a duty of care to a building owner to avoid damage to the building which would create a danger to the health and safety of the occupants. Mr. Murphy was suing the local authority for failing to adequate inspect the foundations of the property. He was constructing and declared dangerous to inhabit. Murphy is sued because he was forced to sell the property at an economic loss.

Damages / Harm

As stated by Dr. Goldwasser, damages or harms can be defined as a sum of money awarded by the court as compensation for loss or damage suffered. In tort, damages are essentially designed to place the plaintiff where he or she who had the tort not been committed.

Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant’s breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss. It means something more that pecuniary loss is a necessary element of the plaintiff’s case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof.

In brief, compensation is meant to indemnify the claimant. Therefore, in the case of C who was the third party had negligently hit, can he claimed damages from the respondent, B, for the damages of his car and injuries to him that he suffered as a result of the collision? In order to ascertain of this issue, we must establish the criteria through which the claimant should seek for the damages.

Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.

The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things.

The damage may be physical, purely economic, both physical and economic or reputation. Emotional distress has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury. A claimant who suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances.

Damages are compensatory in nature. Compensatory damages address a plaintiff/claimant’s losses where in cases involving physical or mental injury the amount awarded also compensates for pain and suffering. The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant’s negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort.

In order to success for C to claim damages, he must submit documents to the court like medical bills and reports from the hospital, charges billed to him for the car repair, in the event he lacked transportation after the collision, he can produce travel documents such as bus tickets and taxi receipts. And, once he decided to sue, it needs to be brought to the attention of the court that B was transporting plywood for A to their customer at the time of the collision.

Types of Damages

Special damages are a quantifiable dollar losses suffered from the date of defendant’s negligent act up to a specified time. Special damage examples include lost wages, medical bills, and damage to property such as your car.

General damages are damages that are not quantified in monetary terms where there’s no invoice or receipt as there would be to prove special damages. A general damage example is an amount for the pain and suffering one experience from a car accident. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages.

Punitive damages are to punish a defendant, they are NOT to compensate plaintiffs in negligence cases. Therefore, these damages are NOT obtainable in a negligence case. It’s awardable only in cases where a defendant has been found “guilty” of intentional, reckless or malicious wrongdoing, such as fraud, defamation or false imprisonment.

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