VICARIOUS LIABILITY The basic idea behind vicarious liability: If A is vicariously liable for a tort committed by B, A will be held

liable as though he had committed that tort himself, and will incur the same liability to pay damages to the victim of the tort as B does. Situations of vicarious liability: (1) Where B commits a tort in the course of her employment by A. (2) Where B commits a tort in the course of performing his functions as a police officer, when A is the chief police officer in charge of B (Police Act 1996, s 333). (3) Where B commits a tort while acting within the actual or ostensible scope of her authority as As agent. (4) Where B commits a tort in the ordinary course of the business of a firm in which B and A are partners. NOT situations of vicarious liability: (5) Where B puts A in breach of a non-delegable duty of care that A owes someone else. (6) Where A is an accessory to a tort committed by B (through As procuring, authorising, or ratifying Bs tort, or through Bs tort being committed in pursuance of a common design pursued by A and B: The Koursk [1924] P 140, Brooke v Bool [1928] 2 KB 578). Two issues relating to (1): (1A) When will someone be held to be someone elses employee? This issue gives rise to two subissues: (1A)(i) Who is an employee? (1A)(ii) If A is an employee, how do we tell who his employer is? (2) If an employee has committed a tort, what sort of connection has to be proved between what he was employed to do and the tort that was committed by the employee before we will find that that tort was committed in the course of the employees employment? 1. Who is an employee? An EMPLOYEE undertakes to do work for another under a contract OF SERVICE. (Contrast: an INDEPENDENT CONTRACTOR undertakes to do work for another under a contract FOR SERVICES.) But how do we differentiate between a contract of service and a contract for services? (1) The control test Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191, 196 per Slesser LJ Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd [1924] 1 KB 762 Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 (2) The ordinary person test Cassidy v Ministry of Health [1951] 2 KB 343, 352-353 per Somervell LJ Argent v Minister of Social Security [1968] 1 WLR 1749 (3) The integration test

Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1951) 69 RPC 10, 22 per Denning LJ Bank voor Handel an Scheepvart NV v Slatford [1953] 1 QB 248, 295 per Denning LJ Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 524 per MacKenna J (4) The four indicia test Short v J W Henderson Ltd (1946) 62 TLR 427, 429 per Lord Thankerton (5) The principal obligation test WHPT Housing Association Ltd v Secretary of State for Social Services [1981] ICR 737 (6) The independence test Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 per Cooke J Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 2. Who is the employer of an employee? Normally straightforward: an employees employer is whoever the employee is working for. But in the case of borrowed employees (where one employer borrows an employee from another employer) it gets more complicated: Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 Viasystems (Tyneside) Ltd v Thermal Transfer [2006] QB 510 Hawley v Luminar Leisure Ltd [2006] IRLR 817 Biffa Waste Services Ltd v Maschinenfabrik [2009] QB 725 Course of employment The old test (the Salmond test): It had to be proved that the employee did something he was employed to do by committing the tort in question Poland v John Parr & Sons [1927] 1 KB 236 Keppel Bus Co v Saad bin Ahmed [1974] 3 WLR 1082 Heasmans v Clarity Cleaning Co [1987] ICR 949 Trotman v North Yorkshire CC [1999] LGR 584 (note: now overruled) The new test (the close and direct connection test): It has to be proved that there was a sufficiently close and direct connection between what the employee was employed to do and the tort that was committed by the employee Bazley v Curry (1999) 174 DLR (4th) 45 (noted: Cane, 116 LQR 21 (2000)) Jacobi v Griffiths (1999) 174 DLR (4th) 71 (noted: Cane, above) Lister v Hesley Hall Ltd [2001] 2 All ER 769 (overruling Trotman, above) (noted: Hopkins (2001) 60 CLJ 458) Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913 (noted: McBride (2003) 62 CLJ 255) New South Wales v Lepore [2003] HCA 4 (noted: McBride (2003) 62 CLJ 255) Weir v Chief Constable of Merseyside Police [2003] EWCA Civ 111 Mattis v Pollock [2003] EWCA Civ 887 Fennelly v Connex South Eastern Ltd [2001] IRLR 390 Attorney-General v Hartwell [2004] 1 WLR 1273 Bernard v Attorney-General of Jamaica [2004] UKPC 47 Brown v Robinson [2004] UKPC 56 Maga v Trustees of the Birmingham Archdiocese [2010] EWCA Civ 256 (noted: Bell (2010) 69 CLJ 440)

3.