Andrew Wride
A2 LAW-Vicarious Liability Question
Vicarious liability is a section of law where a third party can be held liable for a tort or
crime. Usually the third party is the employer of the person who committed the tort. For vicarious
liability to arise three basic rules must be fulfilled, these are that there must have been a tortious act
or crime committed, that the tortfeser must have been an employee of the company at the time of
the act, and that the act must have occurred in the course of employment.
In order for the courts to establish whether or not a person is an employee of the company,
as opposed to an independent contractor for which there is only very rarely vicarious liability, there
are several tests, of which one or more should be satisfied. The first of these is known as the control
test, and simply states that if the employer has control over what the person does, such as when they
work, what methods they use in their work, and the power to hire and fire as necessary, then the
person in question is an employee, while if they do not fulfil these requirements they are not. This
test stems from the late 1800s when household servants where common, and their employers where
more or less in control of every aspect of the work done. An example of when this test was used
was in Mersey Docks V Coggins and Griffthis. The second test, the “integration test”, was
established in Stevenson V McDonald and states that anyone who is an integral part of the business
is considered an employee while anyone who's job is not an integral part of the business would be
considered an independent contractor. Finally there is the “economic reality” test which is a newer
test which takes any factor that indicates whether the person in question is an employee or an
independent contractor. For example the court would consider whether the tortfeser has agreed to
provide work for a regular wage, or for a one off payment, whether they have agreed to the control
of the employer and whether they own their own tools and equipment, or whether the employer
supplies such equipment. This was employed in Ready Mix Concrete V Minister For Pensions
where it was decided that because the tortfesers had flexible wages, had a variable pay rate
depending on how much work they did, and could hire drivers to replace them, they where
independent contractors not employees.
In order to ascertain whether or not the tort was committed was in the course of employment
the courts use the Salmond test, which states that an employer is liable in two main instances; where
a wrongful act has been authorised by the employer, and where an act that has been authorised is
carried out in an unauthorised manner. The first means that if an employer instructs an employee to
commit a tort, they will be liable, for example in the case of Poland V Parr. Authorised acts that are
carried out in an unauthorised manner is where either the employee is expressly forbidden to do
something but does it anyway, where the employee is completing work negligently, or where the
employee goes beyond the limits of his job such as Bayley v Manchester railway co. Along side this
it has been established that an expressly forbidden that benefits the employer is liable as Rose V
Plenty confirmed.
The employer is not liable for employee’s actions where those actions are either outside of
the scope of employment or where the employee is “on a frolic of their own”. When an act is
outside of the scope of employment it is where an act by an employee falls outside of what they
should be doing within their job. For example in Makanjuola V Metropolitan Police where a police
officer pressured a woman into having sex with him in return for him not reporting her for a crime,
and in Beard V London Omnibus Co. where a bus conductor drove a bus, despite it not being his
job. A “frolic of his own” is the term used to describe the situation when an employee is not in
work. For example in Hilton V Thomas Burton, the employee was on a break, and off the
employer’s premises when the tort occurred, and so for this reason the employer was not liable.
Another example would be that a school are only liable for their teacher’s actions within the
teachers working hours, on school property, or on events or trips organised by the school.
These tests can be applied to the case described. Firstly it is necessary to ascertain whether
or not Barry is an employee or an independent contractor. Under the control test, Barry is
considered an employee, as he has no choice in when he works, and what jobs he does when he is
working. The Integration test also places Barry firmly in the employee category, as without him
Andrew Wride
A2 LAW-Vicarious Liability Question
(and other delivery drivers) the delivery company would not be able to make deliveries and so it
would fail. This makes Barry’s job an integral part of the business. The economic reality test would
also be likely to consider Barry an employee, the fact that he has to pay his own tax and national
insurance could place him as an independent contractor, however the fact he is paid a regular wage
(as opposed to a single lump payment), the fact that Dodgy Co. own the van he drives, the uniform
and the level of control would all indicate that Barry is an employee.
The next consideration is whether or not Barry committed the tort in the course of
employment. This is more complex. The first consideration is that Barry was expressly forbidden
from working for another delivery business. This would seem to indicate that he was carrying out
an expressly prohibited act, and so Dodgy would not be liable. However Limpus V London
Omnibus Co. would suggest the opposite, as Barry was authorised to drive the van, and to make
deliveries. Also as in Rose V Plenty, the employers would have benefited from the unauthorised
work, and so could be held liable. Also there is the consideration that Barry may not have been
expressly forbidden from delivering for Rocky Co, for two reasons. Firstly Rocky do not seem to be
a delivery company, as if they where, Dodgy would not be likely to be delivering to them,
particularly on a regular basis, as is suggested by Rocky’s position of being a “very good customer
of Dodgy”. Secondly he is not accepting work as such, as neither Rocky nor the recipient of the
package is paying him for his work.
However there still rises the question of whether Barry was taking an un-authorised break,
as he did not have permission to make the delivery. There is a factor, which would suggest that it
should not be considered as such. Firstly Barry did attempt to make contact with Dodgy, in order to
gain permission to take the package. However he could not reach them, and with this absence of
permission still took the package. This would suggest that he was acting in what he thought to be
his employer’s best interests, as in Poland V Parr. However the absence of permission could equally
be considered to make the delivery an unauthorised break, and so Barry was “on a frolic of his
own”
This combination of factors would strongly suggest that Dodgy would be liable for Barry’s
negligent actions.