Vicarious liability Part II

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In E v The English Province of Our Lady of Charity, a priest was said to have abused a
young girl — was he an employee or an independent contractor? It was held that although there was no contract of employment, the relationship was “akin to employment”. The courts have taken a wider view and included relationships which are ‘akin to’ employment relationships when deciding whether a person is an employee.
In Cox v Ministry of Justice , Claimant a catering manager in a prison, was injured by the
negligence of a prisoner in the course of a ‘prison job’, prisoner dropped a bag of rice on Claimant’s back. Was the Ministry of Justice vicariously liable for Claimant’s injury? Yes it was.
Here the test used was put forward in Various Claimants v Catholic Child Welfare Society.
In this case, Brothers of a catholic order lived a communal life, followed a hierarchical structure, and renounced salaries payable for their teaching work. In return the institute met all the brothers’ needs. Was the diocese liable for over 200 claims of sexual abuse by brothers?
The Supreme Court held yes, — “the relationship … had all the essential elements of the relationship between employer and employees.”
Lord Phillips stated vicarious liability will be imposed where it is Fair Just and Reasonable to do so, based on the following policy factors: (i) Defendant is more likely to be insured or able to compensate Claimant than the employee; (ii) the tort has been committed as the result of employee’s activities on behalf of Defendant; (iii) employee’s activity is part of Defendant’s business activity; (iv) Defendant’s employment of employee to conduct an activity
increased the risk of the tort being committed by employee; (v) employee will have (to a residual extent) been under Defendant’s control.
These criteria generally ensure that liability is imposed where it is Fair Just and Reasonable to do so, but a further fairness enquiry might be necessary where the test is applied to novel facts. “The general approach which Lord Phillips described … is intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed
outside relationships of employment.” It recognises that, in modern workplaces, “workers may in reality be part of the workforce of an organisation without having a contract of employment with it.”
If an employer lends an employee to a second employer and the employee commits a tort, which employer is liable? Where an employee is technically employed by original employer but works for another employer on a day-to-day basis in practice. Both original employer and second employer can be vicariously liable. in Viasystems case, it was held that that the important factors were the right of control, who was responsible for preventing the negligent act and whether employee had been integrated into both businesses. Both the parties had the right to control S, the employee, and he had been integrated into both businesses, therefore there was dual vicarious liability and both sub contractors were liable.
Employers are generally not liable for negligent acts of independent contractors. However,
certain duties are non-delegable and so the employer will still be liable.
In Woodland v Essex CC, Claimant was injured in a swimming lesson organised by her school with an independent organisation. Could Claimant sue her school? Supreme court held yes, the
school owed a non-delegable duty to Claimant.
The employer will not be liable for a tort committed by an employee when the employee is on ‘a frolic of his own’. In Hilton v Thomas Burton, workmen used their employer’s van to go to a café for afternoon tea. They travelled about seven miles but then turned back. On the return journey, due to the negligence of the driver they crashed and one of them was killed. It was held that they were on a frolic of their own and the defendant employer was not vicariously liable.