WORKSHOP FIVE

Vicarious liability and employers'

primary liability in negligence
Learning Objectives

1. Learn what elements are required to establish a vicarious liability claim and a direct
claim in the tort of employers’ primary liability.
2. Apply what you have learned in relation to vicarious liability and employers’ primary
liability to a variety of realistic scenarios.
3. Consider how this knowledge can be assessed by way of multiple-choice questions
and practice such MCQs.
Structure

• Introduction (10 minutes)

• Activity 1: Peer assessment or group review of emails about vicarious liability (LO1)
(25 minutes)
• Activity 2: Three short-form unseen scenarios on vicarious liability (LO1 and LO2)
(35 minutes)
• Activity 3: Written analysis of an employers' primary liability claim (LO1 and LO2)
(35 minutes)
• Conclude (5 minutes)
Pervasive Skills

1. Problem solving and matter analysis: students will problem solve and
analyse vicarious liability claims and employers’ primary liability claims.

2. Case analysis: optional: students can opt to find, read and analyse the case
of Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214.
Activity 1

• Specimen email drafted prior to workshop.

• Email should have set out:
• Requirements of vicarious liability.
• Application of the law to the case study.
Activity 1

Requirements of vicarious liability:

By an employee
During the
Was a tort or someone in a
course
committed? relationship akin
of employment?
to employment?

Parties:  Ben Wilkins v Manchester Hospital 

Vicariously for Dr Garcia's Clinical Negligence
Loss:  Paralysis in both legs and CEL 
Activity 2
Scenario 1: 
Parties:  Liz v Geoff
Tort:  General Negligence
Loss:  Broken leg (PI)
Duty?: 
Driver and pedestrian (Fitzgerald v Lane & Patel).
Breach?: 
(i) Standard of care:  Reasonably competent driver (Nettleship v Weston).
(ii) Fallen below this standard of care?:  Looking at his phone whilst driving.  High magnitude/likelihood
of harm (Watson v BBBC).  Clear breach. 
Causation:
(i) Factual:  But for test satisfied (Cork v Kirby).     
(ii) Legal:  No NAIs.
Remoteness:  PI is reasonably foreseeable as a result of the breach (Wagon Mound (No.1)).
Defences:  None applicable on the facts.  
Activity 2
Parties:  Liz v Chris (vicariously for Geoff's tort)
Has a tort been committed by Geoff?: 
Yes, see the analysis for Liz v Geoff.
By an employee of Chris?: 
The scenario states that Geoff is employed by Chris.
During the course of employment?:  Was pulling in for lunch at a café during the course of employment?
• the close connection test (Lister v Hesley Hall Ltd and Mohamud v WM Morrison Supermarkets plc) considers:
• What is the nature of the employee (Geoff’s) job? What are the functions entrusted to him by his
employer?
• Is there a sufficient connection between the position in which Geoff was employed and his wrongful
conduct?
• Apply test?
• Geoff’s employed as driver. Driving (stopping for lunch) was within the field of activities assigned to
Geoff. Close connection between the accident (caused by negligent driving) and Geoff’s functions as a
driver.  
• Distinguish Storey v Ashton and apply Smith v Stages. Apply Harvey v RG O’Dell.   
Conclusion: likely Liz’s claim will succeed and Chris will be liable for damages payable as a result.
Activity 2
Scenario 2:
Parties:  Ruhi v Jim
Tort:  General Negligence
Loss:  Whiplash (PI) and property damage (damage to car)
Duty?:
Driver to driver (Nettleship v Weston).
Breach?:
(i) Standard of care: Reasonably competent driver (Nettleship v Weston).
(ii) Fallen below this standard of care?  Drink driving.  High magnitude/likelihood of harm (Watson v
BBBC).  Clear breach. 
Causation:
(i) Factual:  But for test satisfied (Cork v Kirby).     
(ii) Legal:  No NAIs.
Remoteness:  PI and property damage are reasonably foreseeable as a result of the breach (Wagon
Mound (No.1)).
Defences:  None applicable on the facts. 
Activity 2
Parties:  Ruhi v Travelux (vicarious liability for Jim’s tort)
Has a tort been committed by Jim?:
  Yes, see the analysis for Ruhi v Jim.
By an employee of Travelux?: 
The scenario states that Jim is employed by Travelux.
During the course of employment?:  
• Was driving home from the pub, drunk and after working hours within the course of employment?
• the close connection test (Lister v Hesley Hall Ltd and Mohamud v WM Morrison Supermarkets plc),
considers:
• What is the nature of the employee (Jim’s) job? What are the functions entrusted to him by his
employer?
• Is there a sufficient connection between the position in which Jim was employed and his wrongful
conduct?
• If close connection test satisfied, the employer will be liable for the employee’s tort even if that tort also
amounts to a prohibited or criminal act.
• Apply test?
• Jim’s job = travel consultant. It is difficult to see a sufficient connection between his position and his
drink driving following an after-work excursion to the pub.
• Apply Fletcher v Chancery Lane Supplies [2016], Distinguish Bellman v Northampton Recruitment ltd [2018]
Activity 2
Scenario 3:
Parties:  Jane v Oliver
Tort: Battery (no need to consider the elements of this tort)
----
Parties:  Jane v Sanctuary (vicarious liability for Oliver's tort)
Has a tort been committed by Oliver?:
  Yes, see above.
By an employee of Sanctuary?: 
• The scenario states that Oliver is a volunteer.
• Is he an employee applying Ready Mixed Concrete?
• Are Oliver and Sanctuary in a relationship akin to employment (Christian Brothers)?
• Look at the 5 key issues from Christian Brothers, applying them to these facts.

Continued…
Activity 2
Scenario 3 continued:
During the course of employment?:  
• the close connection test (Lister v Hesley Hall Ltd and Mohamud v WM Morrison Supermarkets
plc), considers:
• What is the nature of the employee's (or similar ie Oliver's) job? What are the functions
entrusted to him by his 'employer'?
• Is there a sufficient connection between the position in which Oliver was 'employed' and his
wrongful conduct?
• If close connection test satisfied, the employer will be liable for the employee’s tort even if that tort
also amounts to a prohibited or criminal act.
• Apply test?
• Similarities and differences to Mohamud v WM Morrison Supermarkets?
• Apply Mattis v Pollock
Activity 3
Employers' Primary Liability Claim:

• Parties
• Tort 
• Loss
• Is the Claimant an employee of the Defendant?
• Duty
• Breach
• Causation
• Remoteness
• Defences
Activity 3
Parties:  Hilary v Snowhite
Tort:  Employers' primary liability
Loss:  Head injury (PI)
Is H an employee? Yes. If not told on the facts – apply multiple factors test.
Duty:  Employer and employee (Wilsons and Clyde Coal Ltd v English)
Breach: (i) Standard of care:  Reasonably competent building site employer (Latimer v AEC Ltd.)
(ii) Fallen below this standard of care?:
Provision of competent staff:
• The foreman asked Scott to drive the crane and discouraged the use of safety hats. 
• Scott drove the crane despite not being trained to do so. 
Safe system of work? (Speed v Thomas Swift): 
• Scott was not trained and there was a lack of supervision (General Cleaning Contractors
Ltd v Christmas). 
• Hilary failed to wear a safety hat and the foreman believed that hats were a waste of
time (apply Bux – consider nature and degree of risk, Clifford v Charles H Challen,
distinguish Woods v Durable Suites and Qualcast (Wolverhampton) Ltd).   
Activity 3
Causation:
(i) Factual:  But for test satisfied (McWilliams v Sir William Arrol).
(ii) Legal: 
• Hilary's failure to wear a safety hat. Unlikely to be a NAI because the foreman advised against
wearing hats and Hilary’s failure is intertwined with Snowhite’s breach.
• Scott’s act of driving the crane.  Unlikely to be a NAI because it was not unforeseeable (Knightley v
Johns) since the foreman told Scott to drive the crane.
Remoteness: A head injury is reasonably foreseeable as a result of the breach (Wagon
Mound (No.1)).
Defences:  
• Volenti is unlikely to apply.  Hilary did not know someone untrained would be operating the crane
and volenti does not often work in an employment context (Bowater v Rowley Regis Corporation).
• Contributory negligence may apply s1(1) Law Reform (Contributory Negligence) Act 1945 and apply
test from Jones v Livox:
• Consider if Hilary's failed to take reasonable care of her own safety by not wearing a hat
• If this contributed to her loss
Learning Objectives

1. Learn what elements are required to establish a vicarious liability claim and a direct
claim in the tort of employers’ primary liability.
2. Apply what you have learned in relation to vicarious liability and employers’ primary
liability to a variety of realistic scenarios.
3. Consider how this knowledge can be assessed by way of multiple-choice questions
and practice such MCQs.

Workshop 6: special type of loss in general negligence – psychiatric harm

Consolidation

Consolidation exercise:
1. Revisit the supplemental guidance in relation to whether a tort has been committed
for the vicarious liability scenarios.
2. Access and complete the assessment-level MCQs on the Hub.
3. Lord Neuberger’s speech.