4.3.3 Vicarious Liability Lecture - Hands on Examples
Serenity Corp are a food wholesalers operating out of a large warehouse. Food is purchased there in bulk, either in person or via order.
One day, a number of incidents occur in the warehouse.
Employees Malcom and Zoe meet with a customer, who wishes to buy a large quantity of rice. The desired product is on a high shelf, some two stories up on the warehouse’s industrial shelving. Ordinarily, they would use a forklift system to retrieve the pallet the rice is on. Today, however, the lift is already in use. The wholesalers is busy, and so Malcom and Zoe decide to retrieve the rice on their own. They have attempted this once before, and were caught by their employer, who forbade them from retrieving products in this manner.
Zoe climbs up the shelving, and after ensuring Malcom is ready, she shifts the bag of rice off the pallet. Unfortunately, another customer is walking by when the bag falls off of the shelves. It misses Malcom (who was intending to catch it) and it hits the customer, who is knocked to the floor and suffers a broken arm.
Rice is spilled over the floor, and so Malcom and Zoe call over Kaylee – a cleaner. Kaylee is employed by Serenity Corp on a casual basis, three days each week. They ask that she wears their uniform, and that she is polite to customers as she works. Kaylee works on an independent basis – she operates under her own name, and files a tax return each year declaring her income. Kaylee jumps onto the warehouse’s sweeper machine – an industrial unit used to make cleaning up large spills easier. On her way to the spill she accidentally runs over the foot of a customer. The customer’s foot is broken, and he swears loudly at Kaylee.
Jayne, a cashier, hears the customer yelling at Kaylee. He is rather protective of her and rushes over and berates the customer for his poor attitude. The customer refuses to back down, and so Jayne hits him, breaking his nose.
Meanwhile, Hoban, a delivery driver, is out on a job delivering beef to a customer. He is still on his way out when he decides to stop for lunch at a drive-through restaurant. Whilst stopped at the order window, he accidentally puts his delivery van in reverse, and hits the driver behind him.
Serenity Corp is now facing four claims – one for the broken arm, one for the broken foot, another one for the broken nose, and a fourth for the vehicle damage.
Advise Serenity Corp on whether it will be held vicariously liable for these claims.
The first claim deals with vicarious liability for authorised acts undertaken in an unauthorised manner. As per Century Insurance v NI Road Transport Board  AC 509, an employer can be held liable for acts which take place in the course of employment, even if they are undertaken in a careless manner. The express prohibition by Serenity Corp will not provide a defence – the prohibition only refers to the manner of Malcom and Zoe’s conduct, rather than the scope. Since the pair were acting within the bounds of their employment (i.e. retrieving products for customers), the courts are likely to impart vicarious liability, as in London County Council v Cattermoles (Garages) Ltd  1 WLR 997.
The second claim, for the cleaning machine accident, will depend highly upon whether Kaylee is considered an employee of Serenity Corp or not. The control test, as per Yewen v Noakes  6 QBD 530, can be interpreted either way – whilst it is unlikely that her employer provides direct instructions on how to clean up, we know that they have provided an industrial cleaning unit, and so have at least some bearing on her way of working. The organisation test of Stevenson, Jordan & Harrison Ltd v MacDonald & Evans  1 TLR 101 suggest she is not an employee – whilst her conduct is certainly of use to Serenity Corp, her work can be categorised as accessorial to the primary business of the company. Applying the economic reality test, of Ready Mixed Concrete Ltd v Minister of Pensions  2 QB 497, renders a similar result. Kaylee receives remuneration and her employer exercises a certain level of control over her conduct. However, it appears she is expressly regarded as an independent contract by her employer, since she takes the step of paying her own taxes and appears to have the ability to freely work for others as she wishes. Whilst she wears the uniform of Serenity Corp, so did the employees in Ready Mixed Concrete, and that formed no barrier to independent contractor status. Whilst the company have provided Kaylee with equipment, it would arguably be impractical for her to personally provide such equipment, even as an independent contractor. Thus, since Kaylee is likely an independent contractor, the liability for the customer’s injury is her own.
Jayne’s action mirror those of the employee in Mohamud v WM Morrison Supermarkets plc  UKSC 11 – there is an attack on a customer whilst on the job. This suggests that vicarious liability will be imparted to Serenity Corp. However, it might be argued that Jayne’s actions can be distinguished, since the altercation was not one which started with Jayne serving a customer, but instead one that started when Jayne involved himself in a dispute that he was separate from.
Finally, there is the damage Hoban causes whilst on a delivery job. Whilst it is certainly true that Hoban is not directly engaged in his duties when the accident occurs, it can still be regarded as occurring during the course of employment. As in Joel v Morison  172 ER 1338 the crash occurs midway through a delivery job. His conduct is not so wildly deviant that it might be considered personal frolic, as in Storey v Ashton  LR 4 QB 476. Indeed, it is perfectly usual conduct for a delivery driver to take reasonable breaks for refreshment, and it would be undesirable for the law to disincentivise drivers from ensuring they take breaks where necessary.
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