When an employee commits a tort during the course of the employment, an employer might be held liable for his negligence. This is called the doctrine of vicarious liability, which generally operates in the law of torts. The issue of the employers’ liability is debating, because it is a very specific area of law as a person is liable for the torts of another without express authorization. If a master employed a negligent worker, he should pay for his wrongdoings.
Firstly, this essay will give an overview of the topic, then will discuss is it fair or not, by analyzing different situations. Finally, all main points will be summarized and the answer will be given. There are several reasons why the doctrine of vicarious liability is convenient. Firstly, employers are mostly wealthier than their employees and usually are insured to protect themselves from such risks and, therefore, they are better able to pay damages. Secondly, there is a concept that employers benefit from employees and, hence, should bear losses resulted by their actions.
Thirdly, employers have a chance to choose employees and if they chose a careless one, they should pay damages caused by servant’s carelessness. Lord Millett in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 concluded, “The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on. ”[1] For vicarious liability it is important to determine the status of a person who committed a tort, whether he was an employee or an independent contractor.
Masters will only be liable for the torts of their servant, but for their individual contractors they are usually not liable. In Hewitt v Bonvin [1940] 1 KB 188 a definition to employee was given as “any person employed by another to do work for him on the terms that he is to be subject to the control and direction of his employer in respect of the manner in which the work is to be done. ” There are also some features, which show the existence of contract of service, this means having relations between a master and a servant.
For example, the power to select or appoint, payment of wages and salary, delegation, obligation to work, hours of work and holidays. [2] Another important aspect of vicarious liability is whether employee acted in a course of employment or not. The employee should commit wrong authorized by the employer. On the other side, the master will avoid liability if he manage to prove that the servant acted on his own, unconnected to his employment. [3] A typical example is Mattis v Pollock (t/a Flamingo’s Nightclub), The Times, 16 July 2003.
In this case the owner of the nightclub was held liable for the doorman’s attack to the claimant, because Court of Appeal found that the doorman was known to the defendant to be violent and aggressive, however he was allowed to work this way and caused a spinal injury of the claimant. This kind of cases illustrates that employer is liable fair, because he realized all the possible danger but made nothing to prevent a tragedy and it seems that he encouraged such behaviour. Furthermore, the doormen in addition to the desire of revenge tried to protect his employer’s property and, therefore, the club owner is liable. [4]
Lister v Hesley Hall Ltd [2001] 2 All ER 769 established a new approach in vicarious liability and overruled previous decision in Trotman v North Yorkshire CC [1998] 1 CLY 2243. According to the held, it is not enough simply to show that the employee unauthorized committed a tortious act, the defendant must prove that his servant acted of his own, without following the course of employment; it is a broader approach of the issue. It has been argued that in Lister v Hesley Hall Ltd [2001] 2 All ER 769 defendant company did not authorize abuse of the claimants and employees acted themselves, the employment only provided opportunity to do so.
However, company was liable, because it did not perform its duties carefully as it did not know about abuse and, in addition, the ground for the employer’s liability was merely that they were better able to pay damages to the claimant. Now it might be seen as the law. [5] Slightly different approach is taken for crimes, committed by employees. An employer will not be usually liable for the criminal acts of employees. For example, ST v N. Yorkshire [1999] IRLR 98, where Court of Appeal held that a deputy headmaster sexually assaulted with a teenager he took care of did not fail to perform his duties as a teacher on behalf of his employers.
He denied his duty as a councilor to look after a children he took responsibility; therefore, his employers were found not liable. However, the liability still depends upon the employee having actual or apparent authority to undertake work or to carry out duties of the sort which have enabled him to commit fraud, and if the fraud is committed outside the course of employment then the employer will not be liable. On the opposite, if the employee carried out his professional duties in a criminal manner, the employer will be held liable, for example, Vasey v Surrey Free Inns [1996] PIQR P373. [6]
The word “fair” is very specific as everybody can define it in a different way, especially, in a subjective area of law. There is no definite answer what is fair and what is not. It is hardly applicable to the whole vicarious liability; it should be applied to each separate case. Many factors can affect the conclusion about what is fair. For instance, whether it was foreseeable that the employee commits a tortious act or not. In Mattis v Pollock [2003] 1 WLR 2158, as described above, the club-owner was aware of the doormen violent behaviour and it was reasonable to predict that the situation may turn into a tragedy.
However, he took no action and was fairly punished. On the other hand, Lister v Hesley Hall Ltd [2001] 2 All ER 769 can be characterized as debateful, because the liability of the employer is not as obvious as in previous case and other factors, for instance, ability of the employer to pay damager, have been taken into account. In conclusion, there is no exact answer to the question. Word fair itself is a subjective and it is difficult to apply for all the cases. However, some generalization can be made.
Firstly, the employer should be liable if he could foresee and encouraged wrong behaviour of the employee or when the servant tried to save master’s property. Secondly, it might be unfair for the employer to be held liable when the employment merely gave an opportunity to do it, but the tort was not authorized by the employer. It is very serious and arguable issue. There is a case law system in the UK and leading case on vicarious liability Lister v Hesley Hall Ltd [2001] 2 All ER 769 indicates what is fair. Maybe in future there will be new precedents, which will change attitudes the question.
