Who can sue?
Any victim of a tort can sue. However, a minor must sue by his ‘next friend’. A minor can sue for injuries incurred before birth. For example, physical deformities caused by a drug taken by his mother provided that he is born alive. If a person is injured by a tortious act that causes his death, his estate can sue (on his behalf). This can be for the loss of amenity, pain, and suffering. Or it may be for the loss of income and earning capacity before the death, and expenses.
Who can be sued?
As a general rule, any tortfeasor can be sued. Additionally, it may be possible to sue a person responsible for the tortfeasor. It is irrelevant whether that person participates or not in the commission of the tort. This is called vicarious liability.
(A tortfeasor is a person who commits a tort).
Vicarious Liability
Where the first defendant is engaged in carrying out his or her obligations under a contract of employment, and while doing so commits a tort against the claimant. Then, the claimant may sue not only the first defendant but also his or her employer. In this case, it is unrelated whether the employer was at fault or not. However, the doctrine applies only where the first defendant is employed by the second defendant. However, it is not enough that the first defendant committed the tort in work time. It must be committed ‘in the course of the employment’.
Who is an employee?
Here, we have to distinguish between employees and independent contractors. The employee’s time belonged to the employer. Therefore, an employer can give precise orders as to how it has to be used. An independent contractor is hired to achieve particular results without detailed directions. Therefore, if there is any doubt whether a particular contractor is an employee or not, it is usually sufficient simply to ask whether he is subject to the ‘control’ of an employer. Or else, he is an ‘independent’ contractor. Did the employer control how the work is done or only concern about the results achieve?
Organization test
Is the work done an integral part of the business, or related to it? This test was said by Denning LJ in Stevenson Jordan & Harrison v Macdonald and Evans [1952]. It is also called the ‘organization’ test: is the worker employed as part of a wider organization, or a self-employed independent contractor?
Entrepreneur test
Who has the risk of loss and the chance of profit? This is the ‘entrepreneur’ test: is the worker simply selling a set proportion of his time at a fixed rate, or can the worker be said to be in business on his or her account?
Ready Mixed Concrete (South East) v Minister for Pensions and National Insurance [1968]
A driver was hired by a concrete company on terms that he would always have his lorry ready to carry concrete. He agreed to maintain the vehicle at his own expense and to have it painted in the company’s colors. Also, he agreed to wear the company’s uniform. He was permitted to hire a substitute driver. Held: the driver was not an employee.
Who has control?
It has been clear since Cassidy v Ministry of Health [1951] that control is not definite: there can be employment relationships where the employee is so skilled that control is impossible. When a part-time drama teacher claimed he was an employee of the school which hired him, the lack of control the school exercised was an important consideration. The school did not prescribe a syllabus and left him free to teach as he wished. He was held to be an independent contractor (Argent v Minister for Social Security [1968].
Borrowed employees
Control may also be relevant where there is no doubt that the worker is an employee. However, it is unclear whose employee (e.g. Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) [1947]. There is a strong presumption that the ‘lending’ company is still the employer (e.g. Biff a Waste Services v Maschinenfabrik Ernst Hese GmbH [2008]. However, there are occasional examples of the presumption being denied (e.g. Gibb v United Steel Companies [1957].
The course of employment
The employer is only vicariously liable for torts committed by his employee in the course of his employment. An employee is acting in the course of his employment if the act which constitutes the tort is;
– expressly authorized by his employer;
– impliedly authorized by his employer;
– incidental to an authorized act;
– a method, even if an improper one, of carrying out an authorized act.
However, if an employee radically departs from what is authorized to do, then he cannot be regarded as acting in the course of his employment. He is on a ‘frolic of his own’.
Limpus v London General Omnibus Co (1892)
The plaintiff’s omnibus was overturned when the driver of the defendants’ omnibus cut across it to be first at the bus stop to collect the waiting passengers. The defendant had issued strict instructions to their drivers, not to ‘race’ for passengers. However, defendants’ were still held liable because the driver was acting within the scope of his employment. That is driving the omnibus to collect passengers.
Beard v London General Omnibus Co (1900)
The bus conductor turned the bus around and in doing so injured the plaintiff. He was held to have been acting outside the scope of his employment. Therefore, his employers were not liable.
Heasmans v Clarity Cleaning Company (1987)
An agency cleaning lady who cleaned an office after hours made a series of unauthorized telephone calls in the office which she was cleaning. The office wanted to recover the cost of these calls from the agency which employed her as she did not have sufficient funds to pay for these calls. It was held by the Court of Appeal that the cleaning lady was not acting in the course of her employment when she was making the telephone calls. Therefore the agency was not liable for the cost of the calls.
Employer and the Independent Contractor
Generally, an employer is not vicariously liable for torts committed by independent contractors. If a person suffers loss or injury due to the action of an independent contractor, then the claimant will have to sue the contractor and will have no action against the contractor’s employer.
However, there are few exceptions;
– where the client has authorized the tortious act,
– where there is an exceptional risk,
– non-delegable duty,
– negligent selection.