WHY SHOULD I HAVE TO PAY FOR MY STUPID EMPLOYEES MISTAKES
This short essay is concerned with the principle of vicarious liability and in particular the means and mechanisms which are employed to distinguish between those acts where the employer is responsible and those for which s/he is not.
Vicarious liability means liability for the torts of others and arises because of a relationship between the parties. It is not a tort in itself but merely a determination of who is liable. The maxim qui facit per alium facit per se (i.e. the person who operates through another is himself responsible) neatly summarises the principle. A strict application of the principle means that an employer is liable for the torts of his employee committed during the course of the employee’s employment even though the wrongful act occurred through no fault of the employer and in this respect there is a form of strict liability.
The rationale behind vicarious liability has attributed to it a number of justifications including the control an employer exercises over his employees and that employer obtains the benefit of an employee so it is only fair that he suffers any corresponding burden hence the notion that the employer should be liable for the torts of his employee The employer is most often in a better financial position to compensate a victim. In spite of these justifications it still remains that three elements must be considered and met before an employer will be deemed vicariously liable for the acts of another:
1. Was a tort committed?
2. Was it committed by an employee?
3. Was it committed in the course of employment?
For the purposes of this essay points 2 and 3 above will now be carefully considered.
The question who is an employee is contentious and there is no simple answer, indeed given changing trends in work patterns, the question is as difficult as ever to answer. The courts have devised a series of tests and have pointed out that no single test provides the answer: Ferguson v Dawson.The Control Test which is attributed to Ready Mixed Concrete v Minister of Pensions is concerned with control and direction in respect of the manner in which work is done. By this test an employer could avoid being held vicariously liable if able to show that they did not exercise control over the way in which the tortfeasor carried out their work. The Integration Test as discussed in the interesting case of Stevenson v MacDonald & Evans is concerned with the distinction between those who could properly be regarded as employees and those considered as the self-employed, and labelled the distinction in terms of contract of services (integrated) and contract for services (accessory). Clearly if an employer is able bring evidence of factors that suggest an accessorial role then although to all intents and purposes the tortfeasor appears to be an employee, the courts may in fact deem them otherwise and again the so-called employer would escape liability. The Economic Reality Test looks a factors such as method and frequency of payments, intention of the parties and so forth: Ferguson v Dawson. The courts are however fairly savvy and realise that describing someone as a contractor may merely be a sham, nevertheless this test also provides an employer with a possible ‘get out’ clause as employers are generally not liable for the torts of independent contractors. There are however instances where even the torts of a contractor will be held the responsibility of the employer, for instance in Ellis v Sheffield Gas Consumers it was found that the employer had authorised an unlawful act, and where work being carried out is of a particularly hazardous nature or where there is special risk then as in the cases of Wilsons & Clyde Coal Co v English and Honeywill v Larkin Brothers, the employer will be vicariously liable for the contractors torts.
Taking account of the various issues at stake when determining whether a person is or is not an employee, it is clear that there are instances when these will work in the employers favour and so it is not everyone taken on to carry out work that the employer will be liable for. Even should the wrongdoer be deemed an employee this does not mean that the employer will always be liable because the ‘course of employment’ requirement may also provide relief from liability
In Limpus v LGO an unauthorised way of doing an authorised act fell within the course of employment, similarly in Hemphill v Williams and unauthorised route of an authorised journey was within the course of employment, hence the employer was liable, even where the employer has expressly prohibited the activity they may still find themselves vicariously liable as in the case of Stone v Taffe and a similar outcome was arrived at in Rose v Plenty because the courts considered that the act was done in the masters business interest. The foregoing cases point to the strictness of vicarious liability however in Hilton v Burton the court deemed the employees unauthorised journey a ‘frolic of their own’ and there is a general view that assault cases are generally outside the course of employment: Keppel Bus Co v Sa’ad Bin Ahmad though in Lloyd v Grace Smith & Co deliberate criminal conduct was considered to be within the course of employment. From the various outcomes what can best be said is that ‘course of employment’ is a matter of fact for the courts rather than a question of what the documents/statements of employment may state.
As illustrated by the cases it is not every instance of wrong doing by an employee that will find an employer liable. The various tests and devices employed by the courts in determining such, seem to lack clarity and consistency, and given the changing patterns and methods of work, the difficulties encountered by litigants seem set to rise.