Vicarious Liability and Its Implications [Video]

This video is about vicarious liability and how it can affect you as a trainer, a training company and a organisations who may be commissioning training from a trainer or training company.

Today I want to talk to you about vicarious liability, but before I do, let me show you part of an email that I received in the last few days.

It stated this:

“I had a group of young people who are working with very challenging behaviour in work last week and they told me they are constantly being punched in the face at work and hit. They were told by the staff at the home they were not allowed to touch the clients. They also said one client is constantly smashing his head on the wall and hitting and hurting himself with objects, but have been told they cannot stop him. Apparently he is in a bad way, but no one is doing anything to help him and they are not allowed to administer medication because the home has no one to administer it.”

Well, that’s what the staff are being told in this particular institution, but this is the whole point.

Who is liable for that advice that’s being given to the staff?

For example, if you’re being hit by someone, you can’t touch them.

That is basically negligent advice, as we all know, and I’m sure some of you will leave comments about it, because we all know that if we are being attacked, whether it’s at work or whether it’s somewhere else, we have rights and the employer has to look after us and we have the right to use force to defend ourselves, but that’s not the point of this video. The point is about vicarious liability.

Now, one of the major cases on this is the case of Lister v Hesley Hall.

Let me show you part of this case now because this represented a major change in the law of vicarious liability.

Now, previous to this, the well-established law stated that the more heinous the employees act, the less likely it could be considered to be something for which the employer could be liable on the grounds that it was less likely to be in the course of employment.

The Lister case, however, seems to be a reverse of that view and may have a great many ramifications, some of which are yet to be revealed.

The case, which consisted of a series of personal injury claims brought by former pupils of a school where they had been systematically abused by the housemaster, who will be known as G for this case.

The claim was made against the school on the grounds that the school was vicariously liable for the actions of G, the housemaster, and therefore liable for the personal injury inflicted upon them.

It was recognised by the House of Lords that G, the housemaster, the actions were an abuse of the special position in which the school had placed him in to enable it to discharge his responsibilities.

Only by placing him in that position was G, the housemaster, able to carry out the abuse and he could not have done so had the school not placed him in a position of trust. The school was therefore vicariously liable for those acts.

The Lords stressed that attention must be given to the close connection between the acts of the employee and the duties he’s engaged to perform. In this case, there is a close connection.

There was a care element in G’s duties and the way in which he discharged those duties were criminal.

Now, that’s the case of Lister v Hesley Hall, and there are other cases out there.

There’s the Morrison’s case. There’s a case going on in the Supreme Court at the moment, the Barclays Bank case, and that’s yet to be decided, but I’ll tell you about the outcome of that as and when that happens.

But interestingly, there’s another case just come through, and that is this case here.

This is the non-delegable duty and vicarious liability in a healthcare setting.

Now, I’ll leave a link to this below this video, but basically the nuts and bolts of this case is that the claimant, a patient, went to her primary care trust and she needed dental treatment.

The primary care trust referred her to a subcontracted dentist that was operating on their premises and the subcontracted dentist did the work. It was an extraction of a wisdom tooth.

Well, on extracting the wisdom tooth, it then transpired that they’d left the root to the wisdom tooth in there, although they claimed later on they hadn’t. They’d removed all the roots, but it was subsequently found out they hadn’t.

And as a result of that, the patient suffered pain and sensory deprivation in her tongue and her lips and her mouth.

So, she took the subcontracted dentist, who was directly liable for the negligence in this case to court. This dentist didn’t turn up. He disappeared, couldn’t find him.

So she subsequently sued the primary care trust who had referred her to this dentist.

And the primary care trust argued that they were just an administrative body. They were a referring agent. They had no duty of care to the patient.

But to cut a long story short, the judge in this case, and this is the county court judgement case, the judge held the primary care trust liable because the patient had no choice in who she was referred to, and therefore, by referring her to that subcontracted patient, the primary care trust was vicariously liable for the negligence caused by that particular dentist.

So, how does all this work in our field, in the field of, let’s say, physical restraint for example?

Well let’s say a commissioning agency, your healthcare trust or a care home or a school or security company, whatever, they commission a training provider to come in to deliver training to their staff.

When the staff are given the training and go on the training course, they don’t have any choice in who their training provider is because that decision is, let’s say, made it senior management level.

If that training provider is negligent and let’s say, in this case, they injure someone on the course by giving a negligent instruction or by not supervising properly, then the employee can claim against that trainer because they have a direct liability, but the organisation that commissions the training is also vicariously liable for bringing that training provider in and the training provider’s company is also vicariously liable because the trainer is acting on their behalf in delivering the training of behalf that company.

Okay. Let’s go even further.

Let’s say the instruction omits to teach certain techniques.

For example, let’s say they say:

“We can’t teach this technique and you can’t teach that technique.”

So, as part of the training provider’s certification process, if you like, to become certificated to enable them to deliver the training, they mustn’t deliver certain techniques.

Well, if someone gets seriously injured or dies as a result of those techniques not being used, specifically if the use of those techniques would have prevented the serious injury or death, then that trainer or that training provider who’s gone through the certification are liable, the trainer directly and the training provider vicariously, but also the commissioning agency that’s brought the training in, they’re also vicariously liable because they’ve allowed a training provider to deliver training to their staff, staff again who have no choice in who’s training them, because that’s made at senior manageable level and they are being given training, which omits to teach certain techniques purely for the basis of some form of certification or accreditation and nothing more.

That’s where this actually can cause us a problem.

So, if you are a training provider out there, if you are a trainer, it is hugely, massively important that you actually teach what is required.

That’s why you have a risk assessment and a training needs analysis and all the other things that go with your training.

And if you are a commissioning agency that’s looking to commission training, don’t just look for the certification process, look to see if the training provider can actually resolve the problems that you’re trying to resolve in the least intrusive or least restrictive way.

Sometimes, it may even be with not actually using a physical intervention. It may be by the use of equipment and if that can resolve the problem, great.

But if you purely choose a training provider on the basis that they hold some form of certification or accreditation, but to get that certification or accreditation, they’ve had to omit certain techniques because they couldn’t have got that certification or accreditation without that.

Then once again, just to stress this, if something happens, someone gets just injured or seriously injured or killed, which wouldn’t have occurred had those omitted techniques been part of the programme, then you are vicariously liable.

Hope that helps.

And if you have any questions feel free to leave a comment below.

Also, the article I refer to in the video can be viewed here – https://www.lexology.com/library/detail.aspx?g=10c46a6e-0f87-4cc5-9af6-f6da2d231ab3&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2020-03-04&utm_term=

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