Learner resource 10: Evaluation – Essay marking activityThis is an example of an answer written to an examination question. By critically evaluating the strengths and weaknesses of this essay you should be able to improve your essay technique.

The activityYou will need to know the evaluation of the following topics:

Negligence Occupiers’ liability Nuisance Rylands v Fletcher Vicarious liability.

The exam question will require you to describe the law and discuss whether the law is moral and/or achieves justice.

Read the following essay and discuss how it could be improved. Consider these questions:

1. Is it too long?2. Is there a balance between description of the law and evaluation?3. What level would you give this essay?4. What could be removed that wouldn’t affect the overall mark?5. Any other comments?

Discuss the extent to which vicarious liability is fair on employers. [25]

Vicarious liability is an area of civil law which makes an employer responsible for the torts of their employees. The objective of tort law is to provide fairness and justice including compensating a person who suffer loss or damage. However, is it fair to impose this liability on an employer in all circumstances? The law of vicarious liability tries to ensure that the employer is only responsible when it is deemed fair.

The law states that only an employer is only responsible for employees who are acting in the course of their employment. This sounds simple enough but these rules can sometimes be complicated, especially if the tortfeaser is on loan or is sub-contracted; or if they are doing something which is not directly part of their employment.

There are many tests to establish if a tortfeasor is an employee rather than an independent contractor. The Ready Mixed Concrete case established the ‘economic reality’ test based on how the employee is paid, whereas Mersey Docks v Coggins preferred the ‘control test’ based on who was in control of the tortfeasor’s duties. There are other tests too and this raises the first point of evaluation. Surely is would be fairer to have one test for all cases of vicarious liability? A single test would ensure that the employer would be in no doubt for whom they are vicarious liable and take action to make sure they did not commit any torts. However, situations such as the one that occurred in Mersey Docks v Coggins (the crane drive was on loan but the original employer was

still in control of the employee and therefore liable) highlights the fact that ‘one size does not fit all’. A single test would be restrictive as it would not cover the diverse nature of employment contracts and surely it is in the interest of justice to ensure that employers take full responsibility for their workers. It would not be considered fair if an employer was able to avoid responsibility for bad or dangerous practice in the workplace by only using self-employed or sub-contracted workers. An employer should be responsible as they are in control of their employees, responsible for their training and has the power to fire anyone who is not doing their job properly.

Once it is established that the tortfeasor is an employee, the second rule of vicarious liability relates to establishing if the employee was ‘acting in the course of their employment’. This includes acts authorised by the employer but also covers employees who are acting in an unauthorised way. For example in Limpus v London General Omnibus bus drivers were told not to race but the employer was still liable when an accident occurred as the driver was doing his job (driving a bus) albeit badly. However, this liability extends to other situations where the employee is careless, like in Century Insurance v Northern Ireland Transport Board where the driver of a petrol tanker caused an explosion by smoking.

An employer is not responsible for an employee who is on ‘a frolic of their own’ (Hilton v Thomas Burton). This includes activities that are not part of their employment Beard v London General Omnibus and other activities such as giving unauthorised lifts, as occurred in Twine v Beans Express. It can be argued that this is fair on the employer as it would not be just to make an employer liable for all activities undertaken by their employees, especially the ones that they are not authorised to do. However, employers should take a more active role to make sure that employees are not undertaking potentially dangerous activities. The law can also be considered harsh and unfair on the employer when similar cases are decided inconsistently e.g. Rose v Plenty the employer was considered responsible when a milkman injured a child he had on his milk float whereas in Twine v Beans Express the employee injured a hitchhiker. In both cases the employees were told not to do these things but the employer in Rose was liable as the child on the milk float was working and so it was for the benefit of the employer.

Also, an employer is better placed to compensate a claimant who suffers loss caused by an employee. Employers will have insurance whereas an employee is unlikely to have means to pay compensation claims especially if claiming for a death (as in Hilton v Thomas Burton). The possibility of claims can encourage the employer to take a higher standard of care and not ‘turn a blind eye’ to some of the activities undertaken by their employees. However, some employers may be unaware that their employees are acting in a dangerous or careless way until after the tort is committed. Surely it is unfair to expect an employer to have control over all possible and unpredictable actions of their employees? E.g. Century Insurance v Northern Ireland Transport Board.

The final aspect of vicarious liability covers intentional torts and crimes committed by employees. It is rare for an employer to be held responsible for the crimes of his/her employees however, the crimes committed by the employee in Lister v Hesley Hall were so serious that is was only right that the employer should be responsible to compensate the victims. This links back to the earlier evaluation points regarding the fact that the employer will have insurance or more means to pay compensation and also that is will encourage the employer to take a more active role in monitoring the activities and suitability of their employees. Although the decision in Lister may seem harsh on the employer, it is difficult to argue that the decision to make them vicariously

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liable is unfair considering the facts of the case.

In conclusion, the law of vicarious liability tries to create ensure that the employer is responsible for the torts of their employees when appropriate. Although some of the decisions discussed in the cases above may seem harsh on the employer, overall the law is fair.

Extension task

Re-write the essay and create a model answer.

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