Objective Notes: W300 – Agreements, rights & responsibilities
UNIT 25 - MANUAL FOUR
VICARIOUS/ JOINT & SEVERAL LIABILITY
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Distinguishing employees & independent (ind) contractors
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Employer/ employee relationship = vicarious liability (vic liab) pre-requisite –
traditionally, master/ servant but employer/ employee more common phrase today &
essential to distinguish between employee (contract OF service) where employee
performs service for one person, his employer, (e.g. teachers, factory workers,
office/ retail workers etc) & ind contractor (contract FOR services) where selfemployed worker/ business provides services to several (e.g. taxi divers, selfemployed building trade contractors);
Initially, test = ‘control’ where ‘master’, commanded manner in which work done
but now employers not have expertise to supervise/ control how skilled employees
work & also inadequate re workers part time, homeworkers, agency/ contract
suppliers & trainees so no longer of prime importance & absence not conclusive
evidence that contract is for services;
In Stevenson, Jordan & Harrison Ltd v Macdonald & Evans [1952], integration test
used - worker employed as part of business & does work as integral part of it
whereas ind contractors not part but accessory – but this considered too vague &
from Ready-Mixed Concrete (South East) Ltd v Minister Pensions & National
Insurance [1968] pragmatic test - contract of service exists where (i) employee
agrees provide his own work/ skill in perf of service to employer in return for wage/
other remuneration & expressly/ impliedly subject to another’s control sufficient to
make that other be employer & (ii) all other contract provisions consistent with
being of service including (a) whether worker provides materials/ tools or employs
helpers; & (b) degree of financial risk worker assumed personally;
Where employer temporarily loans employee to another, general permanent
employer has burden of proof in showing vic liab passed to special employer which
only discharged in ‘quite exceptional circumstances’ taking into account (i) who
pays wages/ has power of dismissal; (ii) period of loan; & (ii) machinery employed
so crucial who at time able to tell employee what to do & how to do it so
insufficient employee’s work to be under special employer’s control &, whilst
relevant if employers agreed who employer is, not conclusive (Mersey Docks &
Harbour Board v Coggins & Griffiths Ltd [1946]).
Where employee commits tort in course of employment (ICE)
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Employer vic liab for (i) acts authorised; & (ii) unauthorised acts so closely
connected with ones authorised = modes, albeit improper, of so doing but where act
less connected not mode but independent act for which employer not liab since
employee not acting ICE & no single ICE determination test –always turn on facts –
but crucial factor = was, at time, employee doing what employed to do &, if so,
albeit carelessly/ mistakenly (Century Insurance Co Ltd v Northern Ireland Road
Transport Board [1942]), then acting ICE (Salmond & Hueston) but where acting
outside employment scope employer not vic liab (Beard v London General Omnibus
Co [1902] – not employed to drive buses);
Whether contravening express instructions takes employees outside course depends
on whether instructions are to manner where breach is ICE (London County Council
v Cattermoles (Garages) Ltd [1953]) or scope which is outside (Iqbal v London
Transport Executive [1973]) &, in regard to unauthorised lifts, driver not acting
within scope if doing something prohibited (i.e. giving lift to unauthorised person),
so was as much ‘on frolic of own’ as if unauthorisedly driving somewhere for own
benefit (Twine v Bean’s Express Ltd [1946]) but whether prohibited act is ICE
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Objective Notes: W300 – Agreements, rights & responsibilities
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depends on purpose for which done & if for employer’s business, usually ICE even
if prohibited (Rose v Plenty [1976]);
Where goods entrusted to employee for safe keeping or to carry out work on, he acts
ICE because duties include taking care of goods & theft/ dishonesty = dishonest
method of perf duty but where employee uses employment as opportunity to steal,
act not ICE (Morris v C W Martin & Sons Ltd [1965]) & where employer held out
that employee authorised to act for them but acted fraudulently (whether for
employer’s benefit or not), this ICE (Lloyd v Grace, Smith & Co [1912]);
Where employee assaults person during course of work (e.g. night club bouncer
responsible for maintenance of order, injures someone whilst ejecting them),
employer may be vic liab but where assault totally unconnected with duties not
acting ICE but employers vic liab for intentional wrongful acts (e.g. sexual abuse)
where very close connection between tort & employment’s nature (Lister & others v
Hesley Hall Ltd [2001]) taking into account whether act capable of being
categorised as being so closely connected with employment that fair & just to make
employer vic liab - turns on facts & depends on (i) claimant/ employer relationship;
& (ii) whether act can be seen as way of carrying out authorised work, albeit most
improperly;
Employees outside scope if tort committed not on employer’s business but whilst on
‘frolic of own’ (Joel v Morrison (1834)) & this relates mainly to drivers/ those
driving as part of work whilst deviating from authorised routes, taking into account
(i) extent employee deviated - major (new journey) or minor (new route); & (ii)
purpose of deviation & if still engaged in employer’s business not on frolic so where
journey’s primary/ main purpose = further employer’s business ICE as is getting
meal if fairly incidental to work in which employee engaged (Harvey v R G O’Dell
Ltd [1958]) but where new/ independent journey with no connection to employment
entirely for his benefit, rather than employer’s beyond ICE (Storey v Ashton (1869))
which may include additional journeys (e.g. going for tea - Hilton v Thomas Burton
(Rhodes) Ltd [1961]) so question of degree on facts whether departure from
authorised routes suffices to place employee in ‘frolic’ situation taking into account
geographical divergence & departure from set tasks – greater degree of deviation
from either or both, more likely that employee on frolic.
Why vic liab exists & policy role
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Moral grounds – accident prevention encouraged as employers given financial
incentive in encouraging employees to take care of others’ safety & as employers
profit from employees’ activities so should bear losses resulting from these.
Practical grounds – employers normally more able to bear losses whilst employees
may not be worth suing financially & employers in better position to arrange
insurance protection (e.g. motor insurance on business vehicles) which costs they
pass on to customers via higher prices;
These reflect social policy premised on (i) loss distribution – those who benefit from
employees’ work should equally meet losses/ damage resulting therefrom; & (ii)
importance of losses being met by solvent defs – employers best placed to distribute
losses through insurance & product prices.
Where employers are liab for ind contractor’s torts
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Basic rule = employer not vic liab for ind contractor’s torts since (i) lacks control
over way ind contractor carries out work, especially where hasn’t necessary
expertise; & (ii) ind contractors normally businesses more likely to have insurance
than employee & usually more ‘substantial’ so in better position to meet claims;
But employer liab where (i) work involves extra hazardous acts, impliedly
something inherently dangerous (e.g. use of explosives); or (ii) dangers created in/
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Objective Notes: W300 – Agreements, rights & responsibilities
on highway (Rowe v Herman [1997]) & where (i) employer has common law nondelegable duty for employees’ safety; or (ii) absolute duties imposed by stat –
responsibility for perf cannot be delegated;
Employers may be liab under Nuisance for (i) withdrawal of support from
neighbouring land; & (ii) escape of fire & substances (e.g. explosives) brought on to
land likely to cause damage (Alcock v Wraith [1991]) &, where nature of work
involved special danger of creating nuisance, harm became inevitable unless proper
care & reasonable precautions taken so these situations (rather than ordinary
building works), fell within exceptions for which employer liab (Matania v National
Provincial Bank Ltd [1936]);
Employers may be personally liab for (i) choice of neg contractor; (ii) engaging
insufficient workers; (iii) providing inadequate instructions; or (iv) authorising
contractor’s tort but not for ind contractor’s collateral/ casual neg (= not committed
in course of carrying out very work delegated & unrelated to any dangerous
element) (Padbury v Holliday & Greenwood [1912]).
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Joint & several tortfeasors
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Where more than one person liab for same damage, tortfeasors joint if either (i) all
act in concert in furtherance of common enterprise/ design; or (ii) A authorises B
to commit tort; or (iii) A vic liab for B but where parties liab for same damage but
not fall within joint classifications = several or concurrent tortfeasors (e.g. 2
drivers individually neg resulting in damage/ injury to 3rd party);
Where liab is joint & injured party agrees to release A from liab, this releases B (&
any others) but where several & claimant releases A, not release other defs &
injured party can sue any or all &, irrespective of whether liab joint or several,
innocent party can elect to sue any or all but cannot recover losses more than once.
Rights between tortfeasors
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Common law: Where employer found vic liab & paid out damages (or, more usually
in practice, insurer has), employees, having breached contractual duty to carry out
work with reasonable care & skill, employer entitled to recover damages (Lister v
Romford Ice & Cold Storage Co Ltd [1957]) but where employer at fault itself or
through another employee, cannot claim indemnity (Jones v Manchester
Corporation [1952]);
Statutory: By s.1(1) Civil Liability (Contributions) Act 1978 def may recover
contribution from other def(s) liab for same damage, irrespective of (i) whether
others joint/ several; & (ii) type of action claimant sues – not material that A
tortiously liab & B contractually
By s.2 courts award contribution amounts considered just & equitable, having
regard to extent of each party’s contribution to damage (s.2(1)) taking into account
(i) each def’s degree of blame & (ii) extent to which caused damage &, by s.2(2),
discretion re sum defs have to contribute so may completely indemnify def (e.g.
where A technically liab but in fact totally blameless);
Apportionment between defs & does not impact on claimant’s enforcement of
judgment so where damages awarded but held, say, def A liab for 80% & def B
20%, claimant can enforce against either leaving that def to obtain ordered contrib.
from other.
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