It's time to protect your assets

The law on vicarious liability means schools and colleges may be held responsible for employees' actions even beyond the working day, says Richard Bird.

There was once a man who drove a horse and cart for a contractor. One day he went home for lunch (contrary to the rules) and left his horse (which was a quiet horse) outside his house. The horse (which was not as quiet as he thought) ran off and damaged some railings. The owner of the railings sued the contractor.

You might think that since the rules were quite clear, the employer would have been in the clear. Not so. The man was employed to "conduct the horse and cart during the day" so the employer was liable.

This case is one of many which has defined what lawyers call 'vicarious liability': that is, when an employer is liable for damage done by a member of staff to something or someone.

The basic rule is that if the damage is done by an employee in the course of his/her employment then the employer is liable. But as is clear from the railings case, the employee does not necessarily have to be actually working to make the employer liable.

Fine distinction

How might this apply in a school or college? If a member of staff is on a family holiday in the Lake District and causes an accident on Striding Edge, the school cannot be responsible. Although the teacher's contract in theory extends to 365 days of the year as far as professional tasks are concerned, a family holiday cannot by any stretch of even the legal imagination be seen as one of those professional tasks.

However, if a member of staff takes a trip out of school during the school day which is related to the curriculum, and as a result of his or her negligence a child is hurt, or a child runs into the road and a car, swerving to avoid him, collides with another car, then the school will be liable for the error.

Of course, there then is the question of how much latitude an employee is given. Another case involved a court deciding whether the driver of a forklift truck had the implied duty to remove obstacles from his way and whether there were any limitations on this. The owner of the five-ton lorry which the forklift driver had removed argued that the employer had not imposed any limitations. The owner sued the employer and won.

Even gross carelessness, like throwing away a lighted match while filling a petrol tank, has been found to be "in the course of employment". What is made clear is that the circumstances of the case have the major bearing on the decision.

For example, it may be that a court would decide that a member of staff who went to the bank during a non-teaching period who ran down a pedestrian was not doing so in the course of his employment.

Lunch break

But what about a college lecturer who goes to the bank at lunchtime, comes across some 'increased flexibility' students from the local school who are behaving badly and, in the course of an altercation, lashes out at one?

It is at least arguable that this was in the course of employment, since the relationship with the young person was created by the professional duties.

And where does responsibility lie if a similar incident occurs in a nightclub at a weekend?

Schools are being encouraged to extend their disciplinary actions beyond the school gate and school hours. The implication is that liabilities may also be extending.

Then what about over-zealous discipline, for example, with a member of staff who inflicts unlawful corporal punishment? In this case, precedent would suggest that the case would turn on whether the jury decided that the actions were "a misguided and unauthorised method" of doing their duties or "so unconnected with their authorised duties as to be quite independent of and outside those duties".

Although the law lays down a clear prohibition of corporal punishment, the fact that the events took place as part of a teacher's normal duties would probably tip the case against the school.

The House of Lords has recently taken the view that where abuse of a child is closely connected to the duties of a teacher or other employee, vicarious liability applies. (There might also be an action for direct negligence by the employer for employing someone in a position of trust who might commit such an assault.)

The best defence for any employer, as one judge ruled in a mine disaster case, is "competent staff, adequate material (equipment) a proper system and efficient supervision". Easier said than done, perhaps.