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Introduction

Employment relationships are being one of the crucial aspects of business management in the being time,

and dedicating the responsibility among the employees is definitely more significant subject of matter

regarding the customer service today. Respectively, liability for employees’ negligence towards the

company’s client appears to be under a remarkable question. In this essay, it will be discussed a little

background of vivacious liability, in what cases vicarious liability is applicable and what kind of test

systems were created in order to determine whether the employer is liable. The essay will be built on case

law only, just to prescribe how it looked like in practice before and even now before the conclusion is

drawn.

Background of Vicarious Liability

It is argued that concept of vicarious is currently outdated and cannot be related to the current legislation

system any more. The current principle of law is arrived from control over “master and servant”1 which

was created for the societies long before. Consequently, the concept fairness of this principle has been

evaluated since then. The basic of the principle is one side (the master) supposed to be liable for the

wrongdoings of the other side (the servant), even if it is weird to accuse someone liable other than the one

who in fact committed the wrongdoings towards the clients. The courts have created rules for such cases in

order to determine whether the vicarious principle arose or not. The main conception of the principle is

determined whether wrongdoer is an employee while the wrongdoing is done during the employment,

while being under control of employer. In the most of the legal disputes, the correlation of staff and

manager is established; however in some cases the positions require a further investigation reasonable

approach to the case. In order to come up with an appropriate verdict, the court has created multiple testing

systems which assist to determine whether the employee is the one who liable in the dispute. It is important

1Stephen Nayak, “REVISING THE ROLES OF MASTER AND SERVANT: A THEORY OF WORK LAW: Multilateralization, Arbitral
Precedent, Comparativism, Soft Law”(SSRN 2017)<
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1495&context=jbl> accessed 13 November 2017.
to mention once again that the test was derived from the master and servant law, and appears to be an

original test.

For instance the current test shows the control over the employee. The test has become well known in case

of Performing Rights Society v Mitchell & Booker LTD (1924)2 the claim was raised against the defendant

regarding the copyright issues in jazz music band. The respondent owned a hall, where he could play music

unless it does not breach any Intellectual Property Law during the concert. And the main concern in the

case was the band chosen was not in fact allowed by the plaintiff to play it to the clients of the hall, which

led to breach of Copyright Law. However, the court started testing whether the music band was employed

by the hall or not. The judge looked at fact such as time- table of the employment, which proves the fixed

schedule of work, moreover, the place of the employment was indicated in the agreement as well.

Consequently, the band appeared to be an official employee of the hall, the band was used to entertain the

client base and the court held the plaintiff side.

The Four Important Factors in Practical Consideration

In the case of Short v J & W Henderson Ltd (1946), the Lord Thankerton3 has proposed for significant

factors in the practical experience that prove that employer is vicariously liable for the actions of its

personals when the negligent damage occurs to the customer. First of all employers’ right to recruit and

hire the employee, which leaves the last word behind them, and the second the payment for the staff or

remuneration. The third is approach to management of the employee respectively to the remuneration is to

be provided and the forth the right of firing or demission of the personal. Even though the test did not give

a clear result in all cases4 but could be used in a certain extension such it happened in Mersey Docks &

2 Mathew, “Distinction Between A Contract For Service & A Contract Of


Service: Multilateralization, Arbitral Precedent, Comparativism, Soft Law”(SSRN 2017) < http://documents.jdsupra.com/c119fe4e-8d58-
48b6-b21e-d11d262c5b74.pdf> accessed 8 November 2017.
3 LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

THANKERTON, and LORD MACMILLAN, “Negligence - Liability of Manufacturer to ultimate Consumer - Article of Food -Defect likely
to cause Injury to Health) < https://www.unbc.ca/assets/history/courses/201101_donoghue_v._stevenson.pdf> accessed 17 November 2017.
4 Phillip Morgan, “RECASTING VICARIOUS LIABILITY

) < https://pure.york.ac.uk/portal/files/14005943/Recasting_Vicarious_Liability_CLJ_2012.pdf > accessed 13 November 2017.


Harbour Board v Coggins and Griffiths 19475. Moreover, the test found to be very valid in case of Hawley

v Luminar Leisure Plc 20056, where the employee was lack of a detailed instruction by the employer as

consequently led to the negligence toward the client of the company (the plaintiff).

Another example of usage this test was done by Lord Denning who came up with integration of the test in

case of Stevenson, Jordan, Harrison Ltd v MacDonald and Evans 1952. The engineer manager published a

book where he wrote the knowledge gained in the previous work place, and the plaintiff (the ex-employer)

claimed that the knowledge gained during the paid hours in the previous job belong to the payer, which

means to the employer, and vicarious liability was detected in favor of the plaintiff. Lord Denning

described the verdict as: - “It is often easy to recognize a contract of service when you see it, but difficult to

say wherein the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are

all employed under a contract of service; but a ship's pilot, a taxi-man, and a newspaper contributor are

employed under a contract for services. One feature which seems to run through the instances is that, under

a contract of service, a man is employed as part of the business; whereas, under a contract for services”.

This principle was later followed in case of Whittaker v Minister of Pensions and National Insurance 1967.

The third test about the economic reality was conducted by Lord MacKenna7 in the dispute of Ready

Mixed Concrete (South East) Ltd v Minister of Pensions (1968)8 where the Mr. J MacKenna clarified the

conditions which need to be satisfied in order to put the employee liable for the wrongdoing if:

1) The employee is signed for providing service to the customer respectively for the remuneration agreed

with the employer

2) The employer a certain amount of control over the employee’s actions with the customer.

3) Any other term of the agreement is to be considered as contact of service9

5 University of Glasgow, “COMPENSA TION AND INSURANCE IN RESPECT OF Pollution LIABILITY AT SEA
) < http://theses.gla.ac.uk/3932/1/1994KooshaPhD.pdf> accessed 11 November 2017.
6 Cambridge University Press, “Vicarious Liability in Tort: A Comparative Perspective

< http://assets.cambridge.org/97811076/27482/frontmatter/9781107627482_frontmatter.pdf> accessed 11 November 2017.


7 LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

THANKERTON, and LORD MACMILLAN, “Negligence - Liability of Manufacturer to ultimate Consumer - Article of Food -Defect likely
to cause Injury to Health) < https://www.unbc.ca/assets/history/courses/201101_donoghue_v._stevenson.pdf> accessed 15 November 2017.
8 Catherine Barnard, “Negligence LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

THANKERTON, and LORD MACMILLAN < http://www.jil.go.jp/english/events/documents/clls04_barnard2.pdf> accessed 10 November


2017.
9 Catherine Barnard, “Negligence LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD
It is also in the courts interest to rectify such facts in order to check the Tax Insurance or National Liability

Insurance and enactment puts multiple burdens for the both sides. And from here the question arises

whether the wrongdoing of employer falls under the employee or not, and what if the action of the

employer was done out of the permission of the management.

Wrong Fulfillment of the Order

The liability will follow the employer in case if the action of the servant was authorized by the master or

the order of the master was fulfilled in a wrong way. For instance if the employee has ignored the

prohibition of the employer as it was seen in Limpus v London General Omnibus Co 186210 where the bus

driver caused a damage to the client in the bus due to blocking the way for competitive bus companies. The

court mentioned that in fact the bus drivers were not authorized to act so, however, the bus company was

accused liable due to a wrong fulfillment of the authorized act of their employees. Initiating negligence

with a careless act is not exclusion in this subject matter, and it was shown broadly in the dispute Century

Insurance11 where the driver who was under employment contract of the transportation company caused a

fire while the petroleum was transferring from the lorry to the tank. The employer held liable due to

negligence of the employee, and the insurance company was upheld, as the wrongdoings of the employees

that cause damage to the company’s property are not part of the contract.

Unauthorized Action of the Employee

Another factor of vicarious liability is unauthorized action of the employee which is seen in Rose v Plenty

197612, where the employee milkman took a junior customer with him while fulfilling the order of the

employer. Due to negligence of the driver, the boy was injured and the court held up the defendant side as

THANKERTON, and LORD MACMILLAN < http://www.jil.go.jp/english/events/documents/clls04_barnard2.pdf> accessed 10 November


2017.
10 LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

THANKERTON, and LORD MACMILLAN, “Negligence - Liability of Manufacturer to ultimate Consumer - Article of Food -Defect likely
to cause Injury to Health) < https://www.unbc.ca/assets/history/courses/201101_donoghue_v._stevenson.pdf> accessed 15 November 2017.
11 The Lord Chancellor, “Century Insurance Co Ltd v Northern Ireland Road Transport Board) <

http://www.nadr.co.uk/articles/published/CommercialLawReports/Century%20Insurance%20v%20NIRTB%201942.pdf> accessed 11
November 2017.
12 “- -“ < https://www.lawteacher.net/PDF/tort-law/Vicarious%20Liability.pdf> accessed 10 November 2017.
the boy was not an employee of the company, however Lord Scarman13 held that the boy in fact was

assisting to fulfill the order of the employee, which is considered to be an unauthorized action of the

milkman.

A question whether a travel from or to work need to be considered to be under employee liability or not is

clearly prescribed by Lord Lowry14 who mentioned in Smith v Stages15 “The usual rule is that this would

not normally be thought to be within the course of employment unless the travel is particularly closely

related to the employee's work and therefore is outside the rule”. In this case the road accident accrued,

while moving from the one working place to another, which is in Lord Lowry’s opinion is to be vicarious

liability of the employer, as the employee was paid during the movement.

Actions Out of Scope of Responsibility

However, the court found improper to held vicarious liability toward the employer if the wrongful act is

done not in the scope of the employment, which was mentioned in Beard v London General Omnibus16

where the plaintiff was run over by the bus, and in fact the conductor who was supposed to collect the road

fares only, was driving the bus. The court held that the conductor was hired in the company not as a driver,

and driving the property of the defendant doesn’t give any privilege for the plaintiff for creating the

vicarious liability17.

The court also mentions that an employer is not to be liable in case if the client has suffered by the

employee if he gets himself under an alcoholic or psychotropic affect, such it happened in Hilton V

Thomas Burthon (Rhodes) Ltd 196118. The driver was under an alcohol affect after lunch while carrying a

passenger in the board. The death of the driver and client injuries were brought to the court under the

13 SARAH NEAL, “The Scarman Report, the Macpherson Report and the Media: How Newspapers Respond to Race-centre social Policy
Interventions < http://oro.open.ac.uk/4545/1/download.pdf > accessed 11 November 2017.
14 Ibid 596
15 A. Hoffmann, “HARM CAUSED BY EMPLOYEES” < http://www.casebooks.eu/documents/tortLaw/heading5.1.3.pdf> accessed 11

November 2017.
16 “-.-”, “To be Opened on receipt < http://www.ocr.org.uk/Images/144555-question-paper-unit-g158-01-law-of-torts-special-study-pre-

release.pdf> accessed 05 November 2017.


17 Ibid 8
18 “--”, “Vicarious Liability < https://www.lawteacher.net/PDF/tort-law/Vicarious%20Liability.pdf > accessed 11 November 2017.
vicarious liability, however the court held “Hilton and his colleagues had been on a frolic of their own at

the time of the accident and were not acting adequately in the course of their employment”19.

Conclusion

After analyzing all cases above, it can be seen that vicarious liability is polyhedron which is very depended

on the real case and the situation accruing in the dispute. In many cases, where the client of the company

has become a victim due to negligence of the employee, the employer is found liable if the order

fulfillment was according to the standards of the employer, and not any other actions were conducted. It is

significant to mention that any negligent action done by employee due to frolic condition brought on his

own is not a subject for vivacious liability of the employer as it was mentioned in the cases above.

Bibliography

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A. Hoffmann, “HARM CAUSED BY EMPLOYEES” <

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19Collins English dictionary, “Vicarious liability – what is a “frolic” anyway < https://www.lexology.com/library/detail.aspx?g=c24dbff1-
5d9c-46d0-b070-b82444070c2f > accessed 3 November 2017.
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2017.

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THANKERTON, and LORD MACMILLAN <

http://www.jil.go.jp/english/events/documents/clls04_barnard2.pdf> accessed 10 November 2017.

Catherine Barnard, “Negligence LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

THANKERTON, and LORD MACMILLAN <

http://www.jil.go.jp/english/events/documents/clls04_barnard2.pdf> accessed 10 November 2017.

LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

THANKERTON, and LORD MACMILLAN, “Negligence - Liability of Manufacturer to ultimate

Consumer - Article of Food -Defect likely to cause Injury to Health) <

https://www.unbc.ca/assets/history/courses/201101_donoghue_v._stevenson.pdf> accessed 15 November

2017.

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http://www.nadr.co.uk/articles/published/CommercialLawReports/Century%20Insurance%20v%20NIRT

B%201942.pdf> accessed 11 November 2017.


“- -“ < https://www.lawteacher.net/PDF/tort-law/Vicarious%20Liability.pdf> accessed 10 November

2017.

LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

THANKERTON, and LORD MACMILLAN, “Negligence - Liability of Manufacturer to ultimate

Consumer - Article of Food -Defect likely to cause Injury to Health) <

https://www.unbc.ca/assets/history/courses/201101_donoghue_v._stevenson.pdf> accessed 17 November

2017.

Phillip Morgan, “RECASTING VICARIOUS LIABILITY

) < https://pure.york.ac.uk/portal/files/14005943/Recasting_Vicarious_Liability_CLJ_2012.pdf

> accessed 13 November 2017.

University of Glasgow, “COMPENSA TION AND INSURANCE IN RESPECT OF Pollution LIABILITY

AT SEA

) < http://theses.gla.ac.uk/3932/1/1994KooshaPhD.pdf> accessed 11 November 2017.

Cambridge University Press, “Vicarious Liability in Tort: A Comparative Perspective

< http://assets.cambridge.org/97811076/27482/frontmatter/9781107627482_frontmatter.pdf> accessed

11 November 2017.

LORD BUCKMASTER, LORD ATKIN, LORD TOMLIN, LORD

Stephen Nayak, “REVISING THE ROLES OF MASTER AND SERVANT: A THEORY OF WORK LAW:

Multilateralization, Arbitral Precedent, Comparativism, Soft Law”(SSRN 2017)<

http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1495&context=jbl> accessed 13 November

2017.
Mathew, “Distinction Between A Contract For Service & A Contract Of

Service: Multilateralization, Arbitral Precedent, Comparativism, Soft Law”(SSRN 2017) <

http://documents.jdsupra.com/c119fe4e-8d58-48b6-b21e-d11d262c5b74.pdf> accessed 8 November

2017.