Date: Fri, 8 Oct 2004 18:06:16 +0100

From: Andrew Tettenborn

Subject: Vicarious liability for intentional torts

Call me uninspired, but I must admit that I've never been convinced that Lister or any subsequent case would have been decided differently under the old Salmond test of whether the tortfeasor was doing what he was hired to do. Take Lister. Well before that case it was clear that if my employee is employed to look after your coat and steals it he will make me liable (Morris v Martin). Is there any real difference between that and the case where my employee is employed to look after a boy and takes the opportunity to brutalise him? I can't see it. Or Bernard: policemen are always in a sense on duty, and when one of them demands use of a telephone qua policeman, surely it's not difficult to say he's acting in the course of his employment, just like an off-duty constable who shows his warrant card, and then arrests and beats up an innocent citizen. And again with Mattis, though this went the other way. When the court stressed the break between the bouncer's doorkeeping activities and his stabbing of the claimant, isn't this really the same thing as saying the stabbing wasn't malpractice in the course of doorkeeping?

Plus ca change, plus c'est la meme chose?

Andrew

>===== Original Message From "Robert Stevens"

As a matter of principle, without a clear articulation of the principle underlying vicarious liability it is difficult to know where to draw the line between acts within and without the course of employment.

I suppose that the significance of Bernard v Attorney General of Jamaica and the earlier decision of the English Court of Appeal in Mattis v Pollock is that they kill off the notion that Lister v Hesley Hall is based upon a voluntary assumption of responsibility.

In Lister, Lord Hobhouse spoke of a class of case "where the employer, by reason of assuming a relationship to the plaintiff, owes to the plaintiff duties which are more extensive than those owed by the public at large ... The classes of persons or institutions that are in this type of special relationship to another human being include schools, prisons, hospitals and even, in relation to their visitors, occupiers of land. They are liable if they themselves fail to perform the duty which they consequently owe. If they entrust the performance of that duty to an employee and that employee fails to perform the duty, they are still liable." (at para 54-55). In Bernard and Mattis there was no such assumption of responsibility by the employer to the claimant.

The courts have now abandoned the classic formulation from Salmond "A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master". The new test adopted from Bazley v Curry is: "whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence."

The new test seems to me to be so vague as to be almost unworkable. What is a 'fair' allocation of risk? What additional deterrence impact is there in holding the employer liable not just for carelessness but where there is no fault on the employer's part? (Compare Attorney General v Hartwell [2004] UKPC 12).

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

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