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Published online by Cambridge University Press: 02 January 2018
In determining whether an employer is vicariously liable for the torts committed by his employee, the House of Lords in the landmark decision of Lister v Hesley Hall proposed that courts should now focus on the relative closeness between the nature of the employment and the tort. Unfortunately, this touchstone test simply begs the question of how close must the nature of employment and the tortious action be before liability can be found. To say that the tort in question was inextricably interwoven or so closely connected with the nature of the employment is conclusory not prescriptive. The close connection test in itself merely provides the court with a formula to confirm its result, not reach one. This author seeks to argue instead that the following legal tests should be employed to determine whether an employee's wrong was committed in the course of his employment. (1) Where the employee has been negligent in the performance of his duties or where the employee has deliberately engaged in self-serving conduct (not amounting to a tort) and in doing so negligently causes injury to another, the employer would only be vicariously responsible if the injury suffered by the victim arises from the inherent risks of the employment. (2) Where the tort committed by the employee is trespassory/intentional in nature, the employer would only be vicariously liable if he has materially increased the likelihood of occurrence of an injury that arises from an inherent risk of the employment. Essentially, my suggested formula would only find liability when the injury suffered by the victim arises from the risks inherent in the tortfeasor's employment, ie the employer would not be liable for all risks he creates when the wayward worker is in his employ.
1. Lister v Hesley Hall [2001] 2 WLR 1311.
2. J Salmond The Law of Torts (Sweet & Maxwell, 9th edn) p 95 proposed that an employer will be liable not only for a wrongful act of an employee that he has authorised but also for a wrongful and unauthorised mode of doing some act authorised by the master. As he suggested: ‘It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them’. See Canadian Pacific Railway Company Appellant v Lockhart Respondent [1942] AC 591 (PC).
3. Giliker, P Rough justice in an unjust world 2002 Modern L Rev 269 Google Scholar at 275.
4. McIvor, C The use and abuse of the doctrine of vicarious liability’ (2006) 35 Common Law World Rev 268.CrossRefGoogle Scholar
5. Glofcheski, R A frolic in the law of tort: expanding the scope of employers' vicarious liability’ (2004) 12 Tort L Rev 1.Google Scholar
6. Lister, above n 1, at [25] and [28].
7. Ibid, at [50].
8. Ibid, at [83].
9. Salmond, above n 2.
10. [1912] AC 716.
11. Dyer v Munday [1895] 1 QB 742.
12. Warren v Henlys [1948] 2 All ER 935.
13. Morris v Martin [1966] 1 QB 716.
14. Dyer, above n 11.
15. Warren, above n 12.
16. Lister, above n 1, at [23].
17. Ibid, at [28].
18. Ibid.
19. Ibid, at [46] per Lord Clyde.
20. Ibid, at [55].
21. Ibid, at [82].
22. Salmond, above n 2, at 275.
23. McIvor, above n 4.
24. Lister, above n 1, at [50].
25. Ibid, at [54] and [59].
26. Ibid, at [54]–[55].
27. Ibid, at [83] (emphasis added).
28. In Bazley v Curry (1999) 174 DLR (4th) 45, the Supreme Court of Canada imposed vicarious liability on a residential children-care facility for the harm resulting from the sexual assaults committed by an employee.
29. Ibid, at para 46.
30. See Lister, above n 1, in particular Lord Hobhouse at [60]: ‘I do not believe that it is appropriate to follow the lead given by the Supreme Court of Canada in Bazley v Curry…The judgments contain a useful and impressive discussion of the social and economic reasons for having a principle of vicarious liability as part of the law of tort…But an exposition of the policy reasons for a rule (or even a description) is not the same as defining the criteria for its application’.
31. Bazley, above n 28, at para 18.
32. Cane, P Vicarious liability for sexual abuse’ (2000) 116 LQR 21 Google Scholar at 22.
33. Glofcheski, above n 5, at 18.
34. Bazley, above n 28, at para 46. In deciding this issue, relevant factors to be considered include (a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee); (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise; (d) the extent of power conferred on the employee in relation to the victim; (e) the vulnerability of potential victims to wrongful exercise of the employee's power.
35. Bazley, above n 28, at paras 34–35.
36. Jacobi v Griffiths (1999) 174 DLR (4th) 71.
37. Ibid, at paras 21 and 85.
38. 195 ALR 412. The High Court also examined whether the school authorities owed a non-delegable duty of care to the pupils and whether this duty should be extended to include responsibility for intentional defaults by delegates. Given that a breach of a non-delegable duty would impose primary liability and not vicarious liability on the employer, it would be outside the scope of this paper to discuss this issue at length here.
39. Ibid, at paras 74 and 277.
40. Ibid, at para 239.
41. Ibid, at para 131.
42. Gordon v Tamworth Jockey Club [2003] NSWCA 82 (unreported judgment).
43. Sprod v Public Relations Oriented Security [2005] NSWSC 1074 (unreported judgment).
44. See Gavin Patrick v Ann St Holdings [2006] QCA 217 where the Court of Appeal of the Supreme Court of Queensland applied the ‘close connection’ test in holding that that a night club should be held vicariously liable for the injuries inflicted by a security guard against a customer. Interestingly, the court decided this notwithstanding the fact that the appellant employer was merely applying for leave to appeal the trial judge's findings.
45. Attorney General v Hartwell [2004] 4 LRC 458.
46. Ibid, at [17] (emphasis added).
47. [2002] Lloyd's Report PN 1.
48. Cercato Gouveia v Kyprianou [2001] EWCA Civ 1887.
49. Balfron Trustees, above n 47.
50. McIvor, above n 4.
51. Bernard v Attorney General of Jamaica [2004] UKPC 47, [2005] IRLR 398.
52. Ibid, at [27].
53. Majrowski v Guy's [2005] QB 848 at [59].
54. [2006] UKHL 34, [2007] 1 AC 224.
55. [2006] EWHC 3041 (QB), [2006] All ER (D) 421 (Nov).
56. Bernard, above n 51, at [27].
57. See Mattis v Pollock (trading as Flamingos Nightclub) [2003] EWCA Civ 887, [2003] 1 WLR 2158 at [25].
58. Ibid, at [33].
59. Bazley, above n 28, at para 46.
60. Ibid, at paras 47–52.
61. EB v Order of the Oblates of Mary Immaculate 227 DLR (4th) 298 at para 50.
62. Reddemann v McEachnie [2005] BCJ No 1374 at para 46.
63. For other examples, see Inform Cycle v Rebound [2007] AJ No 544 and Benko v Scott [2007] SJ No 213.
64. Weingerl v Seo 256 DLR (4th) 1.
65. Lister, above n 1, at [48].
66. Ibid, at [20] and [57]–[58].
67. Bazley, above n 28, at para 44.
68. Hoefling v Driving Force [2005] AJ No 1464.
69. Ibid, at para 49.
70. Ming An Insurance v Ritz Carlton [2002] 1 HKLRD 844.
71. Glofcheski, above n 5, at 15
72. Ibid, at 17.
73. Twine v Bean's Express (1946) 62 TLR 458 and Rose v Plenty [1976] 1 All ER 97.
74. Glofcheski, above n 5, at 18.
75. Bayley v Manchester, Sheffield and Lincolnshire Ry Co (1873) LR CP 148.
76. Century Insurance v Northern Ireland Road Transport Board [1942] AC 509.
77. Kay v ITW Ltd [1968] 1 QB 140.
78. Twine, above n 73.
79. Storey v Ashton (1869) LR 4 QB 476.
80. See Rose, above n 73 and Whatman v Pearson (1868) LR 3 CP 422.
81. Rogers, Wvh Winfield and Jolowicz on Tort (Sweet & Maxwell, 17th edn, 2006) p 893 Google Scholar: ‘The underlying idea is that the injury done by the servant must involve a risk sufficiently inherent in or characteristic of the employer's business that it is just to make him bear the loss’.
82. Sykes, A The boundaries of vicarious liability: an economic analysis of the scope of employment rule and related legal doctrines’ (1988) 101 Harvard Law Review 563 CrossRefGoogle Scholar at 585.
83. See Fleming, J The Law of Torts (Law Book Co of Australasia, 9th edn, 1998) p 410.Google Scholar
84. See A v Hoare [2006] EWCA Civ 395, [2006] 2 FLR 727. The Court of Appeal held that it was bound by precedent to hold that an action for damages for deliberate assault to the person was not an ‘action for damages for negligence, nuisance or breach of duty’ within s 11(1) of the Limitations Act 1980 but was subject to a non-extendable 6-year limitation period from the date of the assault or the victim's eighteenth birthday under s 2 of the Act. The court also held that it was bound by precedent to decide that the non-extendable 6-year time bar applied to an action against a public authority based on its vicarious liability for a deliberate trespass to the person by its employee and the employer could not be vicariously liable for the employee's negligent failure to report his own misconduct. As the law stands now, the court has to distinguish the claims based upon intentional assaults, to which the more stringent 6-year limitation period applied, from those based on the employee's improper conduct in breach of his duty of care to the claimants which did not constitute intentional assault, to which the more flexible limitation regime applied. This case is now before the House of Lords to consider if it could rescue the law from its current incoherent state and any discussion by the Law Lords of Lister and its progenies would invariably affect the developing law on vicarious liability.