UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW
LAW 2105- LAW OF TORTS 11
L
ecturers - Mr. Joshua Benn,
Ms. Faye Barker and Ms. Alicia Primo

WORKSHEET #1

VICARIOUS LIABILITY- PART 1

Under the doctrine of vicarious liability, a person who is not personally at fault will be

held liable for the wrongdoing of another because he stands in a particular relationship

with that other person. Thus, vicarious liability departs from the usual premise of the law

of Tort, i.e., that the person who is at fault due to wrongful intention or negligence is the

one liable to make reparation to the claimant.

Simply put, a person, even though not the tortfeasor, can be liable for a tort committed

by someone else. The usual case is the liability of employers for the torts committed by

their employees in the course of their employment.

ESTABLISHING VICARIOUS LIABILITY

The claimant has to establish

1. The alleged Tortfeasor was an employee.

2. The employee committed a tort

3. The employee committed the tort in the course of employment.

 1. The alleged Tortfeasor was an employee.

Here, the question arises as to whether the tortfeasor is a servant of the employer or

independent contractor. Generally, an employer will only be vicariously liable where the

tortfeasor is a servant.

Some tests adopted by the courts

a) The Control Test- Traditional test- Collins v Hertfordshire CC [1947] KB 598

‘The distinction between the contract for service and the contract of

service can be summarized in this way: in the one case the master can

order or require what is to be done; while in the other case he can not only

order or require what is to be done but how it shall be done.’

b) The Organization Test- Stevenson, Jordan and Harrison Ltd v Macdonald and
Evans Ltd [1952] 1 TLR 101

c) Multiple or Mixed Test- Ready Mix Concrete (South East) [1968] 2 QB 497

N.B In applying this test, however, the courts do not confine themselves to the three
listed factors; rather, the final classification of an individual now depends upon a
balance of all relevant factors and courts now consider a wide range of factors

Market Investigations Ltd v Minister of Social Security

Harris v Hall (1997) 34 JLR 190

d) In some relations, it be difficult to establish the conventional relationship of

employer/employee. This has been shown where members of a church or religious
order had abused children in the course of carrying out activities in that capacity or
in the case of prisoners injuring persons while working for the prison.
In these instances, the Court, using the traditional principles/features of an
employer/employee relationship will examine the features of the case before them and
ascertain whether the relationship therein was akin to that of an employer/employee
relationship so that it is fair and just to impose liability on the employer. The result of this
approach is that, inter alia, The result of this approach is that a relationship other than
one of employment is in principle capable of giving rise to vicarious liability where harm
is wrongfully done by an individual who carries on activities as an integral part of the
business (or non-commercial) activities carried on by a defendant and for its
benefit (rather than his activities being entirely attributable to the conduct of a
recognisably independent business of his own or of a third party).
See:
 E v English Province of Our Lady of Charity [2012] EWCA Civ 938
 Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (‘the
Christian Brothers Case’
 Cox v Ministry of Justice [ 2016] UKSC 10
See also the useful blog “Cox v MoJ: Vicarious Liability Extension in Christian
Brothers Case Approved by Supreme Court”, which can be found here:
https://www.cloisters.com/insights/cox-v-moj-vicarious-liability-extension-in-christian-
brothers-case-approved-by-supreme-court-aylE4#:~:text=The%20result%20of%20the
%20analysis,activities%20carried%20on%20by%20a
See also “Case Comment: The Catholic Child Welfare Society & Ors v Various
claimants & Ors [2012] UKSC 56” available here: https://ukscblog.com/case-comment-
the-catholic-child-welfare-society-ors-v-various-claimants-ors-2012-uksc-56/

Lending a servant
Where the employer A lends his servant to employer B, employer A remains liable,

unless he can prove that, at the time the tort was committed, he had temporarily

divested himself of all control over the servant. The burden of proof here is a heavy

one.

See:

 Mercey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC

 Texaco Trinidad Inc v Halliburton Tucker Ltd Carilaw TT 1975 CA 39

 Joseph v Hepburn Carilaw BS 1992 SC 39

There can be dual liability- Viasystems Ltd v Thermal Transfer [ 2006] QB 510.

2. The employee must commit a tort

The Claimant must prove that the employee committed a tort, only then is the employer

vicariously liable.

As a result, the employer can take advantage of any substantive defence available to

the employee. e.g. contributory negligence.

See- ICI Ltd v Shatwell [1965]

- Young v Box and Co Ltd [1951] 1 TLR 789

What happens where it is difficult or impossible to affirmatively which one of several

servants was negligent? The principle of RES IPSA LOQUITUR applies in such

instances, at least in cases concerning hospitals.

see Cassidy v Ministry of Health [1951] 1 All ER 575.

3. The tort has been committed in the course of employment

Traditionally, a tort fell within the course of employment if:

(a) It is expressly or impliedly authorised by his master;

 Campbell v Paddington Corpn [1911] 1 KB 869

 Gregory v Piper (1829) 9 B & C 591

 Wilson v Tunman (1843) 6 Man & G 236 at 242–243 per Tindal CJ

(b) it is an unauthorised manner of doing something authorised by his master ;or

(c) it is necessarily incidental to something which the servant is employed to do.

B and C have proved to be very difficult to determine in practice, and it is now accepted

that the question of whether a servant’s act is within the course of his employment is

ultimately one of fact in each case.

see United Africa Co Ltd v Owoade [1957] 3 All ER 216

Thus, some relevant factors which the courts will take into account when considering

whether a tort falls within the course of employment are:

a) Manner of doing the work the servant was employed to do;

 Century Insurance Co Ltd v Northern Ireland Road Transport Board

[1942] 1 All ER 491

 Beard v London General Omnibus Co [1900] 2 QB 530

b) Authorised limits of time and place;

 Ruddiman and Co v Smith (1889) 60 LT 708.

 Concerning place – the concept of Frolic of his own applies. Whether

the servant was on a frolic of his own involves a question of degree

(see Parke B in Joel v Morrison (1834) 172 ER 1338)

 Whatman v Pearson (1868) LR 3 CP 223 - driving quarter of a

mile off authorised route to go for lunch deemed reasonably

incidental to employment and thus not on a frolic of his own.

 Storey v Ashton (1869) LR 4 QB 476 – deviated from route to

pick up cash at a friend’s house and take it somewhere else for

the said friend - on a frolic of his own.

 Dunkley v Howell (1975) 24 WIR 293 - instructed to drive Mrs.

W to point A and then to point B and nothing else. However,

after dropping Mrs. W to point A, he drove point C and got into

an accident upon returning to point A. Deemed to be on a frolic

of his own.

 Smith v Stages [1989] 1 All ER 833 – note the 5 propositions

laid down by Lord Lowry therein relevant to deciding whether a

driver would be on a frolic of his own:

i. an employee who is travelling from his home to his

regular place of work or vice versa is not within the

course of his employment (Hunt v National

Insurance Board (1997) Supreme Court, The

Bahamas, No 620 of 1996 (unreported)), but if the

employee is required by his contract of employment to

 use the employer’s transport then he will normally be

regarded as being within the course of his employment

when travelling to work;

ii. an employee who is travelling between workplaces or is

in the course of a peripatetic occupation is within the

course of his employment;

iii. an employee is within the course of his employment if

he travels in his employer’s time from his home to a

workplace which is not his regular place of work, or to

the scene of an emergency;

iv. a deviation from a journey undertaken in the course of

employment will take the employee outside the course

of his employment for the duration of the deviation,

unless the deviation is merely incidental to the journey;

v. receipt of wages rather than a travelling allowance

suggests that the journey is for the benefit of the

employer and, therefore, within the scope of the

employment.

c) Express prohibition

Two types of prohibition

 prohibitions which limit the sphere of employment; and

 prohibitions which merely deal with conduct within the sphere of

employment.
 Only a breach of the first type of prohibition takes the servant outside the course

of his employment thereby relieving the master from liability (Plumb v Cobden

Flour Mills Co Ltd [1914] AC 62, p 67)

 Limpus v London General Omnibus Co (1862) 158 ER 993 – instruction

to bus driver not to race or obstruct other buses only amounted to a

prohibition controlling his conduct.

 Canadian Pacific Rly Co v Lockhart [1942] AC 591 – instructions to

company driver to not use uninsured cars in the execution of his duties

deemed a prohibition controlling his conduct. Driving such a car was also

incidental to his duties.

 Clarke v William Brewer Co Ltd (1983) Supreme Court, The Bahamas,

No 27 of 1980 (unreported) – prohibition against driving trucks on

Sundays, unless instructed to so do was deemed as a prohibition limiting

the sphere of employment.

d) Giving lifts to unauthorised passengers;

 Twine v Bean’s Express Ltd (1946) 62 TLR 458 (CA) - X had been

instructed that no one, other than those employed by the defendants, should

be allowed to travel in the van, and there was a notice to that effect inside the

van – employer held not liable for the death of the passenger as per the trial

judge, the employer owed a duty of care only to persons who might

reasonably be anticipated by the defendants as being likely to be injured by

negligent driving of the van at the time and place in question. The CoA
 agreed but Lord Green used a different reasoning vis-à-vis, giving the lift was

outside the scope of his employment.

 Rose v Plenty [1976] 1 All ER 97 – express instructions not to give lifts to

unauthorised passengers but 13 year old boy taken on board to assist in

delivery of milk – employer held liable for his injury. What distinguishes Twine

from Rose?

 Subhaga v Rahaman [1964] LRBG 112, High Court, British Guiana - no

evidence of any instructions prohibiting giving lifts to unauthorised persons –

employer deemed liable for passenger’s injury. Giving the lift was deemed a

wrongful mode of doing what driver was employed to do.

 Battoo Bros Ltd v Gittens (1975) Court of Appeal, Trinidad and Tobago,

Civ App No 7 of 1973 (unreported) – no express prohibition against giving

lifts to unauthorised passengers. However, driver was driving a private car for

the purpose of his employer’s business but decided to use it as a taxi, taking

him several miles off his authorised route. Employer held not liable for death

of passenger. Court reasoned that the duty owed by an employer to persons

who may be injured by the negligent driving of his servant is limited to those

who can reasonably be anticipated as being possible subjects of injury. As

the care was a private one, employer could not have anticipated the presence

of any passengers in the car. Could also be deemed to have been on a frolic

of his own.

 Alfred v Thomas (1982) 32 WIR 183 – truck driver given express prohibition

against carrying passengers but no sign to that effect in the truck. Employer
 held not liable for injury of unauthorised passenger because (a) the plaintiff

was a trespasser to whom the employer owed no duty to take care as to the

proper driving of the truck; and (b) T was not acting within the scope of his

employment at the time of the accident.

 Haye v Bruce (1971) 18 WIR 313 – Fox JA suggested that, in an appropriate

case, the Jamaican courts should feel free to depart from the principle in

Twine v Bean’s Express Ltd on policy grounds, for ‘however acceptable the

principle in Twine may have been in 1951, it is doubtful whether it is

compatible with the especial responsibility which the law is now determined to

put upon the owner of a motor vehicle who allows it to go on the road in

charge of someone else’. More particularly, whereas the argument that an

injured passenger was a trespasser on the vehicle might be material to a

claim based on the unsafe condition of the vehicle, it was ‘irrelevant in a claim

arising from the negligent manner in which it was driven’

 In Jackson v High View Estate (1997) 34 JLR 325 (Supreme Court,

Jamaica), Harrison J pointed out that modern case law favours deciding the

issue of vicarious liability according to whether or not the driver was acting in

the course of his employment at the material time, rather than according to

whether the passenger was a trespasser in the vehicle, but there are still no

clear criteria for determining when a driver is or is not driving within the

course of his employment.

e) Connection with employer’s business;

Traditional view:
Where a servant does an act which he has no express authority to do, but which is

nonetheless intended to promote his master’s legitimate interests, the master will be

liable in the event of it being tortious, unless the act is so extreme or so outrageous that

it cannot be regarded as incidental to the performance of the servant’s allotted duties.

see:

 Poland v Parr [1927] 1 KB 236

 Warren v Henly’s Ltd [1948] 2 All ER 935

 Keppel Bus Co Ltd v Ahmad [1974] 2 All ER 700

 Daniels v Whetstone Entertainments Ltd [1962] 2 Lloyd’s Rep 1

However, the traditional view must be interpreted in light of HoL case Lister v Hesley

Hall Ltd [2001] 2 All ER 769, which formulated the ‘close connection’ or ‘sufficient

connection test’ whereby the question is whether there is a close or sufficient

connection between what the tort and what the employee was employed to do that it

would be fair and just to hold the employer vicariously liable. If the answer is yes, then

the employer would vicariously liable.

The test proves useful in some cases of where there is an act of deliberate criminal

wrongdoing that may not sit easily as a wrongful mode of doing an authorised act. E.g.

sexual assualts. (recall that the traditional view is that an act deemed to be in the

course of the employment if, inter alia, it is a wrongful and unauthorised mode of doing

some act authorised by the master.

For example, in Trotman v. North Yorkshire County Council [1999] L.G.R. 584 the

Court of Appeal held the defendant Council not liable for a sexual assault by a teacher

on a handicapped teenager committed to his care on a foreign holiday, on the ground

that it was an independent act outside the course of employment, since it was difficult to

describe such conduct as an unauthorized mode of carrying out the deputy

headmaster’s duty. Lister overruled this case.

See

 Irving v Post Office [1987] IRLR 289 – acts of personal spite may fall

outside the scope of employment

 Dubai Aluminium Co Ltd v Salaam (2002) UKHL,48

 Heasman v Clarity Cleaning Co Ltd [1987] 1 RLR 286.

 Maga v Archbishop of Birmingham [2010] 1 WLR 1441

 E v English Province of Our Lady of Charity [2012] 2 WLR 958

Notably, in Lister, another crucial element (separate from the close connection test)

was the ‘risk factor’ vis-à-vis Experience showed that in the case of boarding schools,

prisons, nursing homes, old people’s homes, geriatric wards, and other residential

homes for the young and vulnerable, there was ‘an inherent risk that indecent assaults

on the residents will be committed by those placed in authority over them.’

Rogue Constable cases

Here, the Privy Council in Bernard v Attorney General (2004) Privy Council Appeal

No 30, following Lister, has indicated that the correct approach is:

‘to concentrate on the closeness of the connection between the nature of the

employment and the tort, and to ask whether, looking at the matter in the round,

it is just and reasonable to hold the employers vicariously liable. In deciding this
 question, a relevant factor is the risks to others created by an employer who

entrusts duties, tasks and functions to an employee.’

This builds on the inherent risk theory promulgated by Lord Millett in Lister, whereby

an employer ought to be held liable for a wrong which could fairly be regarded as ‘a

reasonably incidental risk to the type of business.’ In this case, the police had created

the risk by supplying guns and allowing officers to take them home and carry them while

off-duty. Thus, while it would be going too far to say that where a constable used such a

firearm his employer would necessarily be vicariously liable, the risk created

nevertheless reinforced the conclusion that vicarious liability was established.

see also

 Bernard v Attorney General (2004) Privy Council Appeal No 30 (c/f with

earlier case of Attorney General v Reid (1994) 31 JLR 237 (Court of Appeal,

Jamaica).

 Attorney General v Hartwell [2004] 1 WLR 1273.

 Brown v Clarke [2004] 1 WLR 1273

The Fire fighters’ case

Consider the pre-Lister case of General Engineering Services Ltd v Kingston and

St Andrew Corporation [1988] 3 All ER 867. Would it have been different had the

case been decided post-Lister?

To assist with an answer, the following questions may be asked:

(i) Should importance be attached to the fact that the actions of the firemen

constituted a criminal offence?

 (ii) How close was the connection between the conduct of the firemen and the

nature of their employment?

(iii) Could the wrongdoing of the firemen be regarded as ‘an inherent risk’ of their

employment as firemen?

(iv) Looking at the matter in the round, would it have been just and equitable to

impose vicarious liability on the defendant?

According to Gilbert Kodilinye:

‘while one would most probably answer ‘no’ to the first question and ‘very close’

to the second, it is by no means clear that one would answer ‘yes’ to the third

and fourth questions. It is therefore at least doubtful whether the result in the

General Engineering case would have been different if Lister and Bernard had

applied.'

The rogue bouncer cases

Following the principle in Lister, the question is whether the assault was so closely

connected with what the employer authorized or expected of the bouncer in the

performance of the latter’s employer as a bouncer that it would be fair and just to hold

the employer vicariously liable.

see:

Mattis v Pollock [2003] 1 WLR 2158 – Post-Lister

Herrnicht v Green (1989) Supreme Court, The Bahamas, No 737 of 1985

(unreported) [Carilaw BS 1989 SC 27] – pre-Lister

 Sudan v Carter (1992) 2 TTLR 610 (High Court, Trinidad and Tobago) - pre-

Lister

Do you think that Herrnicht and Sudan would have been decided differently had they

occurred post-Lister? What about Daniels v Whetstone Entertainments Ltd [1962] 2

Lloyd’s Rep 1?

Readings in addition to the cases listed herein:

1. Chapter 12, Commonwealth Caribbean Tort Law, 5th edition.