Delegable Duties of Care:
Example where a delegable duty of care arises: A owes a duty of care to C, but delegates the job to B (sub-contracting), A becomes free of their duty.
Non-Delegable Duties of Care:
Where the defendant has a non-delegable duty of care, they must take care to ensure that B takes care. This is a duty of supervisory care.
Conditions:
The claimant is vulnerable and is dependent on the defendant’s care / protection.
Nature of the relationship entails a positive duty for the defendant to take care of the claimant.
The claimant cannot control how the defendant discharges that duty.
In Woodland v Essex CC, W suffered from hypoxia during a swimming lesson arranged by the ECC’s education authority. The lesson was supervised by a swimming teacher and lifeguard, neither of whom were employed by ECC.
The SC held that the duty usually falls on the person undertaking the activity. A main contractor is free of their duty of care when they delegate duties to a sub-contractor, except where C had a vulnerability which required D to retain control.
These types of claims are not under vicarious liability: the defendant is liable for breaching their duty of supervisory care, not for the actions of another.
It can be hard to establish that the defendant had a positive duty to protect the claimant.
In Armes v Notinghamshire CC, abused children were placed with foster families by NCC. NCC had done the necessary checks on the foster families before placement but did not undertake ongoing checks on the families. A was abused by their fosterer.
The SC held that imposing such a positive duty on NCC was unreasonable – NCC only had to have care in selecting the family. Instead, see vicariously liable (below).
Vicarious Liability:
The defendant can be held liable for the actions of another (B) where there is a certain relationship between them, and B’s tort falls within the scope of their relationship. This applies even where the defendant has been careful.
EG: A employs B. While working, B carelessly injures C. A is liable too.
Relationships:
The Old Certainly: the defendant will be vicariously liable for their employees, but not independent contractors. However, this is challenged in cases where B does charity work or performs ‘gig’ work.
In Various Claimants v Catholic Child Welfare, VC were sexually abused as schoolchildren as members of a religious order ran by the school they attended. Usually, schools would be vicariously liable for sexual abuse caused by their employee teachers, but the members were not paid or under contract. The SC held the school liable, as if they were employees.
Philips JSC at [35]: ‘[The law may] impose vicarious liability on the employer when these criteria are satisfied:
(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) the employee's activity is likely to be part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
(v) the employee will, to a greater or lesser degree, have been under the control of the employer’
[49]: Relationships ‘akin to employment’ attract vicarious liability.
In Cox v MoJ, a prisoner working in the prison kitchen dropped an object on C, injuring them. The SC held MoJ vicariously liable for the prisoner’s negligence during their prison work.
Reed JSC:
Criteria (i) and (v) from case above are only relevant in their negative aspect.
[20]: ‘The mere possession of wealth is not in itself any ground for imposing liability. As for insurance, employers insure themselves because they are liable: they are not liable because they have insured themselves. [However]… it cannot be ruled out that there might be circumstances in which the absence or unavailability of insurance, or other mans of meeting a potential liability, might be a relevant consideration’
[21]: ‘[A]s Lord Phillips stated, the significance of control is that the defendant can direct what the tortfeasor does, not how he does it. So understood, it is a factor which is unlikely to be of independent significance in most cases. [However]… the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.’
The proper test:
[24]: ‘[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 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), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question’ Restating (ii), (iii) and (iv) from case above.
In Armes v Notinghamshire CC, (see facts above) the SC applied the Cox test and found NCC vicariously liable for the abuse by the foster parents.
In Kafagi v JBW, a council (C) had instructed bailiffs (B) for debt collection against K. B was not an employee of C. The CA held that Cox and Armes do not extend vicarious liability to independent contractors. B worked for others too, cherry-picked their work, had total control and insurance for their work, so was an independent contractor.
In Barclays v Various Claimants, B requested VC to undergo a physical exam before gaining employment and recommended a doctor to use. VC were abused by the doctor. The SC upholds that there is no vicarious liability for independent contractors from Kafagi.
Hale JSC: D may be a ‘worker’ for labour law and a ‘contractor’ for tort law.
The current approach raises questions of when B is ‘independent’ from D.
EG: Deliveroo riders / Uber Drivers etc. A potential fix to this would be to identify B as an independent contractor only if they do not need D’s protection against the burden of repair in order to agree to act under D’s direction. Note: this would make the Armes judgement incorrect.
Scope:
When B’s tort does not fall within the scope of the relationship between the defendant and B, the defendant will not be vicariously liable. There must be a close connection between B’s tort and the defendant’s activity or enterprise. [1]
In Mohamud v Morrisons, C was injured by an employee of D in their petrol station. D argued that battery does not fall within the scope of his employment, so they should not be vicariously liable.
The SC disagrees and holds D liable: the employee used unreasonable force while removing C from the property to keep order. Motive of employee held to be irrelevant as to the scope of the relationship.
B’s mere opportunity to commit a tort is not sufficient; the key question is whether B’s tort falls within the sphere of powers and responsibilities the defendant gave to B.
In Morrisons v Various Claimants, M had employed someone to pass on data to auditors. The employee made a copy and disseminated it. VC sued M. The SC held that there was no close connection between the employee’s tort and D’s enterprise, so M not liable.
In N v CC of Merseyside, an off-duty police officer (P) offers to take a drunken woman (N) to the police station for safety while she sobers up. P rapes N. The court did not hold police force vicariously liable (Note: not appealed).
Resources:
References:
[1] Lister v Hesley Hall Ltd [2002] 1 AC 215; Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913
Cases Mentioned:
Woodland v Essex County Council [2013] UKSC 66
Armes v Nottinghamshire County Council [2017] UKSC 60
Various Claimants v Catholic Child Welfare Society [2012] UKSC 56
Cox v Ministry of Justice [2016] UKSC 10
Armes v Nottinghamshire County Council [2017] UKSC 60
Kafagi v JBW Group Ltd [2018] EWCA Civ 1157
Barclays v Various Claimants [2020] UKSC 13
Mohamud v WM Morrisons Supermarkets [2016] UKSC 11
WM Morrisons Supermarkets v Various Claimants [2020] UKSC 12
N v Chief Constable of Merseyside [2006] Po. LR 160
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