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Vicarious liability - a whole new world
in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938 the Court of Appeal explored the “new world” of vicarious liability outside of the strict confines of an employer/employee relationship.
The seeds of this extension to vicarious liability were sown in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd . But once the “touchstone” of employment is no longer a requirement, how will the court decide whether there is vicarious liability?
The Court of Appeal were at pains to emphasise that a “close connection” between tortfeasor and the defendant was not either necessary or sufficient. There are plenty of very close connections that do not lead to vicarious liability – such as parent/child, or spouses.
Rather, the test is the extent to which the relationship is close enough as to be akin to one of employment. This requires looking at the hallmarks of the employer-employee relationship. The Court of Appeal considered that the “control test” set out in Ready Mix Concrete (South East) Ltd v Minister of Pensions and National Insurance  2 QB 497 had become an unrealistic guide as times had changed and the emphasis on control had been relaxed. The Court of Appeal examined the authorities and attempted to distil them into a single sentence:
“an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss.”
The Court of Appeal analysed the relationship between a priest and the bishop as follows. Although they depend very much on the particular facts of this case, the way the court examined them is very useful:-
a) The bishop had some control over the priest: he could supervise and effect improvements in performance, and eliminate risks of harm to others.
b) The priest was integrated into the church organisation and structure.
c) The priest’s remuneration was more like a wage than being in business on his own account.
The result was that the role of priest was akin to being an employee and that the Defendant was vicariously liable for his conduct.
The significance of this decision comes from the fact that the labour market is in the process of structural change. More and more people have new, flexible forms and patterns of work which are very different to the traditional dichotomy of employment or self-employment. Health and safety regulations take account of this in many cases. And now the law of vicarious liability seems to have caught up.
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