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Michaelmas Term [2017] UKSC 60 On appeal from: [2015] EWCA Civ 1139
JUDGMENT
Armes (Appellant) v Nottinghamshire County
Council (Respondent)
before
Lady Hale
Lord Kerr
Lord Clarke
Lord Reed
Lord Hughes
JUDGMENT GIVEN ON
18 October 2017
Heard on 8 and 9 February 2017
Appellant Respondent Christopher Melton QC Steven Ford QC Philip Davy Adam Weitzman QC (Instructed by Uppal Taylor Solicitors) (Instructed by Browne Jacobson LLP)
(“the 1980 Act”), and the Boarding-Out of Children Regulations 1955 (SI 1955/1377) (“the Regulations”). The claimant was committed to the care of the local authority by virtue of a care order made under section 1 of the 1969 Act. Section 10 of the 1980 Act set out the powers and duties of a local authority when a care order was made: “(1) It shall be the duty of a local authority to whose care a child is committed by a care order ... to receive the child into their care and ... to keep him in their care while the order ... is in force. (2) A local authority shall, subject to the following provisions of this section, have the same powers and duties with respect to a person in their care by virtue of a care order ... as his parent or guardian would have apart from the order ...” In terms of section 12(2) of the 1980 Act, those functions were in addition to the functions conferred on the authority by Part III of that Act. Part III included section 18 (1), which imposed a general duty on the local authority, in reaching any decision as to a child in their care, to give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood, and so far as practicable to ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.
- Section 21 of the 1980 Act provided: “(1) A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely, - (a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or (b) by maintaining him in a community home or in any such home as is referred to in section 80 of this Act; or
(c) by maintaining him in a voluntary home (other than a community home) the managers of which are willing to receive him; or by making such other arrangements as seem appropriate to the local authority. (2) Without prejudice to the generality of subsection (1) above, a local authority may allow a child in their care, either for a fixed period or until the local authority otherwise determine, to be under the charge and control of a parent, guardian, relative or friend.”
- It follows from section 10(1) of the 1980 Act that the local authority were required to keep the claimant in their care, and to comply with the duties imposed by section 10(2), so long as the order remained in force, even if the claimant was “boarded out” in accordance with section 21(1)(a): that is to say, was placed with foster parents. It is implicit in the opening words of section 21(1) that the local authority’s duties included a duty to provide accommodation and maintenance for a child in their care, and it follows from section 21(1)(a) and (2) that a foster placement, and a placement with the child’s family, were among the means by which that duty could be discharged.
- Section 22 of the 1980 Act enabled the Secretary of State to make regulations making provision for the welfare of children boarded out by local authorities under section 21(1)(a), including provision “for securing that children shall not be boarded out in any household unless that household is for the time being approved by such local authority as may be prescribed by the regulations” (section 22(2)(b)), and provision “for securing that children boarded out under section 21(1)(a) of this Act, and the premises in which they are boarded out, will be supervised and inspected by a local authority and that the children will be removed from those premises if their welfare appears to require it” (section 22(2)(d)).
- Turning to the Regulations, regulation 1 provided that the Regulations applied to the boarding of a child to live with foster parents in their dwelling as a member of their family. Regulation 4 required the local authority not to allow a child to remain boarded out with any foster parents if it appeared that the boarding-out was no longer in his best interests. Regulation 5 provided for the child to be removed from the foster parents forthwith if the visitor appointed under the Regulations to supervise his welfare considered that his health, safety or morals were endangered. Regulation 6 required the child to undergo a medical examination before being placed with foster parents, except in a case of emergency. Regulation 7 required the
was in care. The process of becoming a foster carer involves extensive safeguarding and reference checks, assessment of potential to foster by a supervisory social worker, and attendance at pre-approval training. The process was broadly similar, although less highly developed, at the time when the claimant was in care. Foster carers were described in evidence led on behalf of the local authority as “home based professionals ... acting as a public parent in a private household”.
- According to the evidence, the local authority recruited individuals as prospective foster parents. A social worker employed as a substitute family care worker assessed and prepared them for placements, and supported them in their role as carers. Arrangements for specific placements reflected the legal status of the child (in particular, whether she was received into care voluntarily or was the subject of a care order), the purpose of the placement, the skills and experience of the foster parents in dealing with children who belonged to a particular age group or presented particular problems, and the circumstances of the child and her family.
- The substitute family care worker dealt with the foster parents on a long term basis. She reviewed their training needs and provided or co-ordinated the necessary training. This might include specialised training: for example, the records relating to Mr and Mrs Allison indicate that they were to receive training prior to their designation as family foster group parents, while, somewhat ironically, Mr and Mrs Blakely received training in dealing with abused children.
- The substitute family care worker also monitored placements, assessing how the foster parents were coping with the child or children in the placement, the impact the foster child was having on their own children, the difficulties they might be experiencing, and the support or information they might require. This involved visits to the foster family, which took place at least monthly, but might be more frequent if the need arose. There were also less frequent case reviews, which were typically chaired by a senior member of the local authority’s social work department, and attended by the substitute family care worker, the child’s social worker (whose focus was on the child, and whose involvement with the foster parents would last only as long as the child’s placement with them), the foster parents, and members of the child’s family.
- The foster parents also attended planning meetings at the social work department, when the care arrangements for fostered children were discussed. A minute of such a meeting, involving Mr and Mrs Blakely, indicates that they were provided with diaries in which to record the behaviour, development and statements of children whom they were fostering. In the case of family group foster parents, such as Mr and Mrs Allison, there were also annual reviews attended by social work staff and the foster parents themselves.
- The documents relating to Mr and Mrs Allison, and Mr and Mrs Blakely, for the period in question also indicate that it was the practice for a foster carer agreement between the foster family, the substitute family care worker and the child’s social worker to be recorded in writing at the beginning of the placement, covering such matters as contact between the child and her family, visits by the child’s social worker and activities during those visits, visits by the substitute family care worker, and case reviews. This was additional to the undertaking given in accordance with regulation 20 of the Regulations. In the case of Mr and Mrs Allison, a written agreement was also entered into between themselves and the local authority when they were given the status of family group foster parents, recording the number and age of the children to be placed with them, and their use as an emergency foster home for out of hours placements.
- Foster care does not involve a complete break from the child’s family. That is reflected in the fact that the fostering agreements contemplated contact between the child and her family. In the present case, it was envisaged that the claimant would return to the care of her mother. Consequently, she had contact with her mother during the foster placements, and spent a significant period of time between the foster placements living with her mother.
- It appears from the evidence that, besides the matters specifically mentioned in the Regulations, there were other aspects of the life of a child in foster care which were decided by the local authority, reflecting the fact that it was the local authority, not the foster parents, which possessed parental powers in relation to the child. It was the local authority which agreed to medical treatment of the child, and which decided the level of contact between the child and her family. The local authority also decided whether or not the child could go on holiday, whether the child could have a passport, and whether the child could go on school trips or on overnight stays with friends. According to the evidence, if the foster parents needed child care because they were working, generally the social worker would make the arrangements because of the need to ensure that any substitute carer was suitable. Sometimes extended members of the foster family were “approved” to care for the child in the foster carer’s absence.
- A few matters, including the religion in which the child was brought up, remained under the control of the child’s parents. Areas where either the foster parent or the social worker could become involved included attending parents’ evenings at the child’s school, making arrangements for contact with members of the child’s family, and buying clothes and equipment for the child. The foster parents were expected to undertake the daily care of the child and to take the child to the dentist and the optician.
concept of foster parenting that the local authority should not have that control. The foster parents’ role was to provide family life, bringing up the child as a member of their own family. That was only possible if a foster parent enjoyed independence from direction by the local authority and autonomy to determine how the child should be parented.
- In relation to the case based on a non-delegable duty, the judge found that the five features identified by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66; [2014] AC 537, para 23 were all present. First, the claimant was a child who was in care. Secondly, the relationship between the parties existed before the acts of abuse: it was created by a care order, and gave rise to statutory responsibilities. Thirdly, the claimant had no control over how the local authority chose to perform its obligations. Fourthly, the local authority’s duty to care for the child was delegated to the foster parents: it was they who exercised the day to day care of the child. Fifthly, the foster parents’ tortious conduct had been committed in the performance of the very function delegated to them. In that regard, the judge rejected a contention that a non-delegable duty could be breached only by negligence, and not by the commission of an intentional tort.
- The judge, however, interpreted Woodland as imposing a separate Caparo- like criterion, to be considered as a second stage of the analysis, and which must also be satisfied ( Caparo Industries plc v Dickman [1990] 2 AC 605). Applying that approach, he concluded that the imposition of a non-delegable duty on the local authority would not be fair, just and reasonable. He gave a number of reasons for reaching that conclusion, including the following. First, it would impose an unreasonable financial burden on local authorities providing a critical public service. Funds used to compensate the victims of historical abuse would not be available to meet current needs. There would also be a significant financial impact on local authorities in terms of recruitment practices, training requirements and supervision, all of which might become more intensive. Those factors could affect the capacity of local authorities to maintain the provision of foster care resources. Financial compensation was in any event an unsatisfactory form of recompense for abuse. Secondly, there was a real danger that the imposition of a non-delegable duty would discourage local authorities from placing children with foster parents, even where reasonable steps had been taken to ensure their suitability. Thirdly, it was inherent in foster care placements that the local authority did not have the same control over the day to day lives of the children as they had over children in residential homes. That was a benefit to the children in foster care and was necessary in order to give them the experience of family life which was the purpose of fostering. Fourthly, it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including her own parents.
- An appeal against the judge’s decision was dismissed by the Court of Appeal: [2015] EWCA Civ 1139; [2016] QB 739. In relation to vicarious liability, Tomlinson LJ considered that the local authority did not exercise sufficient control over the foster parents for vicarious liability to arise. The provision of family life could not be part of the activity of the local authority or of the enterprise upon which they were engaged, because inherent in it was a complete absence of external control over day to day family routine. The control retained by the local authority was at the “higher or macro level”, as opposed to “micro-management of the day to day family environment” (para 15). It was therefore “irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home” (ibid). Black LJ also rejected the imposition of vicarious liability, for similar reasons, and Burnett LJ agreed with both judgments on this issue.
- The argument for a non-delegable duty was also rejected, although each of the members of the Court of Appeal gave different reasons for their conclusion. Tomlinson LJ noted that a non-delegable duty must relate to a function which the local authority had assumed a duty to perform. Fostering was not a function which the local authority could perform: it must be entrusted to others. By placing the child with foster parents, the local authority discharged rather than delegated their duty under section 21 of the 1980 Act to provide accommodation and maintenance for a child in their care (paras 23-24).
- Burnett LJ, on the other hand, considered that the relevant duty was the duty of the local authority to care for the child: to promote her welfare and to protect her from harm, so far as reasonably practicable (para 30). If, applying the principles summarised in the Christian Brothers case, there was no vicarious liability for an assault upon a child in care, then in his view the common law should not impose liability via the route of a non-delegable duty (para 34). He also doubted whether a claim for breach of a non-delegable duty could arise in consequence of an intentional wrong (paras 36-37). In relation to these matters, he cited the decision of the High Court of Australia in State of New South Wales v Lepore [2003] HCA 4; 212 CLR
- Furthermore, he considered that section 10 of the 1980 Act, in tying the powers and duties of the local authority to those of a parent or guardian, was incompatible with the imposition of a non-delegable duty of the kind contended for: parents who let their children stay away from home could not sensibly be fixed with liability for an assault on the basis of a non-delegable duty (para 41). In addition, he agreed with the judge’s reasoning in relation to the Caparo rubric, treated as a separate issue.
- Black LJ was in broad agreement with the judge. She considered that the local authority delegated to the foster parents the obligation to care for the claimant as a parent or guardian would, which was an integral part of the positive duty which they had assumed towards her (para 55). Like the judge, however, she also considered that it would not be fair, just or reasonable to impose a non-delegable duty on the local authority. In that regard, in addition to the resource implications of the
- In the Woodland case, Lord Sumption identified two broad categories of case in which a non-delegable duty of care has been held to arise. The first was “a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work” (para 6). The present case does not fall within that category. The second broad category was said to comprise cases where the common law imposed a duty which had three critical characteristics. First, the duty arises because of an antecedent relationship between the defendant and the claimant. Secondly, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Thirdly, the duty is by virtue of that relationship personal to the defendant (para 7).
- Lord Sumption went on to identify a number of characteristic features of cases in the second category. These included the assumption by the defendant of a positive duty to protect the claimant from harm, and the delegation by the defendant to a third party of some function which is an integral part of the positive duty which he has assumed towards the claimant (para 23). In such a situation, the defendant may delegate the performance of the function, but he remains under a duty to ensure that the function is performed and that, in doing so, care is taken to protect the claimant from harm. It follows, as Lord Sumption explained, that “in the absence of negligence of their own, for example in the selection of contractors, [the defendants] will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance” (para 25).
- Lord Sumption described the five features he had identified as “criteria” (ibid). He stated that “a non-delegable duty of care should be imputed to schools [with which the case was concerned] only so far as it would be fair, just and reasonable to do so”, but added that he did not “accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above” (ibid). Lady Hale agreed that “the principle [of personal liability for the breach of a non-delegable duty] will apply in the circumstances set out by Lord Sumption ... subject of course to the usual provisos that such judicial statements are not to be treated as if they were statutes and can never be set in stone” (para 38). She also agreed with Lord Sumption that “recognising the existence of a non-delegable duty in the circumstances described above would not cast an unreasonable burden on the service-providers” (para 40).
- The five criteria set out by Lord Sumption were thus intended to identify circumstances in which the imposition of a non-delegable duty was fair, just and reasonable. It is important to bear in mind Lady Hale’s cautionary observation that such judicial statements are not to be treated as if they were statutes, and can never be set in stone. Like other judicial statements, the criteria articulated by Lord
Sumption may need to be re-considered, and possibly refined, in particular contexts. That does not, however, mean that it is routinely necessary for the judge to determine what would be fair and just as a second stage of the analysis. As was made clear by this court in Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660, para 41, in relation to vicarious liability, having recourse to a separate inquiry into what is fair, just and reasonable is not only unnecessarily duplicative, but is also apt to give rise to uncertainty and inconsistency.
- The critical question, in deciding whether the local authority were in breach of a non-delegable duty in the present case, is whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements.
- Although Lord Sumption focused upon situations in which a non-delegable duty of care was deemed to have been assumed voluntarily, it is of course possible for the necessary relationship to be created by statute. It is a familiar aspect of the legislation governing safety at work, for example, that duties are laid on employers which they cannot escape by employing competent contractors. But everything turns on the particular statute. The point is illustrated by the decision of the Court of Appeal in Myton v Woods (1980) 79 LGR 28, where a claim was made against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school. The authority had no statutory duty to transport children, but only to arrange and pay for it. The claim was therefore dismissed. Lord Denning MR said at p 33 that the authority was not liable for an independent contractor “except he delegates to the contractor the very duty which he himself has to fulfil”. That decision was approved in the Woodland case. One could similarly ask in the present case whether the local authority had a statutory duty to provide the children with day-to-day care, or only to arrange, supervise and pay for it. Discussion
- An appropriate starting point is section 10 of the 1980 Act. As was explained earlier, section 10(1) requires a local authority to whose care a child is committed by a care order “to receive the child into their care and ... to keep him in their care while the order ... is in force”. Section 10(2) provides that “a local authority shall, subject to the following provisions of this section, have the same powers and duties with respect to a person in their care by virtue of a care order ... as his parent or guardian would have apart from the order ...”. None of the subsequent provisions of section 10 bears on the present issue.
- Local authorities are in a different position from parents, or other individuals having temporary care and control of children, in a variety of ways. For example, as Lord Hutton observed in Barrett v Enfield London Borough Council [2001] 2 AC 550, 587-588, a local authority employs trained staff to make decisions and to advise it (see also Surtees at pp 123-124 per Sir Nicolas Browne-Wilkinson V-C). That fact, however, forms part of the context in which the question whether reasonable care was taken must be answered: it does not entail that a different duty altogether should be imposed.
- Although there are differences between the position of local authorities and that of parents, children in care have the same needs as other children. In particular, it may be in their best interests to spend time staying with their parents or grandparents, or with other relatives or friends. That is specifically permitted by section 21(2) of the 1980 Act, as explained earlier. Furthermore, in deciding whether to exercise their power under section 21(2), the local authority are required by section 18(1) to give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood, and, so far as practicable, to ascertain the wishes and feelings of the child regarding the decision and give due consideration to them.
- If, however, local authorities which reasonably decided that it was in the best interests of children in care to allow them to stay with their families or friends were to be held strictly liable for any want of due care on the part of those persons, the law of tort would risk creating a conflict between the local authority’s duty towards the children under section 18(1) and their interests in avoiding exposure to such liability. Furthermore, since a non-delegable duty would render the local authority strictly liable for the tortious acts of the child’s own parents or relatives, if the child was living with them following a decision reasonably taken under section 21(2), the effect of a care order, followed by the placement of the child with his or her family, would be a form of state insurance for the actions of the child’s family members (and, indeed, their friends, relatives and babysitters, if the child were left with them).
- Section 21 is also relevant in another respect. As explained earlier, section 21(1) requires the local authority to “discharge” their duty to provide accommodation and maintenance for a child in their care in whichever of the specified ways they think fit, “or by making such other arrangements as seem appropriate to the local authority”. The specified ways include “boarding him out on such terms as to payment by the authority and otherwise as the authority may ... determine”.
- The implication of the word “discharge” is that the placement of the child constitutes the performance of the local authority’s duty to provide accommodation and maintenance. It follows that the local authority do not delegate performance of
that duty to the persons with whom the child is placed. This is difficult to reconcile with the idea that, when the foster parents provide daily care to the child placed with them, they are performing a function which remains incumbent on the local authority. That is not to say that the local authority are absolved of all responsibility: on the contrary, they remain subject to numerous duties towards the child in their care, some of which will be considered shortly. Nevertheless, in the language used by Lord Sumption in Woodland (para 25), this suggests that the duty of the local authority is not to perform the function in the course of which the claimant was abused (namely, the provision of daily care), but rather to arrange for, and then monitor, its performance.
- Section 22 is also relevant. As explained earlier, it enables the Secretary of State to make regulations imposing duties on local authorities in relation to the approval of households where children are boarded out, the inspection and supervision of the premises where they are boarded out, and the removal of the children from the premises if their welfare appears to require it. As McLachlin CJ observed in a similar context in the Canadian case of KLB v British Columbia at para 36, it might be thought that there would be no need to set out in regulations a catalogue of duties with respect to placement and supervision which are incumbent on the local authority, if they were in any event responsible for all the wrongs that might befall children in foster care. The implication of section 22 is rather that the continuing responsibility of the local authority for the care of the child, in accordance with section 10, is discharged in relation to the boarding-out of children by means of prior approval of the households in which they are placed, and subsequent inspection, supervision and removal if appropriate, in accordance with the relevant regulations. The objective of section 22, and of the regulations made under it, is to ensure that potential problems arising during a foster placement are avoided if possible by means of prior approval of the households involved, and that any problems subsequently arising are identified and addressed once they have become capable of observation by means of inspection and supervision. The statutory regime does not impose on the local authority any other responsibility for the day-to-day care of the child or for ensuring that no harm comes to the child in the course of that care.
- For all these reasons, I conclude that the proposition that a local authority is under a duty to ensure that reasonable care is taken for the safety of children in care, while they are in the care and control of foster parents, is too broad, and that the responsibility with which it fixes local authorities is too demanding. I therefore reach the same conclusion as the Court of Appeal on this aspect of the case, although for somewhat different reasons.
- In particular, I am unable to agree with Burnett LJ’s view that if, applying the principles in the Christian Brothers case, there is no vicarious liability for an assault upon a child in care, then the common law should not impose liability via
authorities, as will shortly be explained. The decision does not, therefore, provide a satisfactory guide to the resolution of the issue. Cox v Ministry of Justice
- The general principles governing the imposition of vicarious liability were recently reviewed by this court in Cox v Ministry of Justice. As was said there, the scope of vicarious liability depends upon the answers to two questions. First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship in order for vicarious liability to be imposed? The present appeal, like the case of Cox, is concerned only with the first of those questions. It is conceded that, if the relationship between the local authority and the foster parent is one which can give rise to vicarious liability, then the abuse of the child is a tort for which vicarious liability is imposed.
- Under the doctrine of vicarious liability, the law holds a defendant liable for a tort committed by another person. Plainly, the doctrine can only apply where the relationship between the defendant and the tortfeasor has particular characteristics justifying the imposition of such liability. The classic example of such a relationship is that between employer and employee. As was explained in Cox and in the earlier case of the Christian Brothers , however, the doctrine can also apply where the relationship has certain characteristics similar to those found in employment, subject to there being a sufficient connection between that relationship and the commission of the tort in question.
- In Cox, reference was made to five incidents of the relationship between employer and employee which had been identified by Lord Phillips in the Christian Brothers case as usually making it fair, just and reasonable to impose vicarious liability, and which could properly give rise to vicarious liability where other relationships had the same incidents and could therefore be treated as akin to employment. They were: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and (v) the employee will, to a greater or lesser degree, have been under the control of the employer.
- As was indicated in Cox, the weight to be attached to these various factors will vary according to the context. It was said that the first was unlikely to be of independent significance in most cases, although there might be circumstances in which the absence or unavailability of insurance, or some other means of meeting a potential liability, might be a relevant consideration. As explained below, that is an aspect of the present case. In relation to the fifth factor, it was said at para 21: “The fifth of the factors - that the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant - no longer has the significance that it was sometimes considered to have in the past, as Lord Phillips PSC immediately made clear. As he explained at para 36, the ability to direct how an individual did his work was sometimes regarded as an important test of the existence of a relationship of master and servant, and came to be treated at times as the test for the imposition of vicarious liability. But it is not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee; nor indeed was it in times gone by, if one thinks for example of the degree of control which the owner of a ship could have exercised over the master while the ship was at sea. Accordingly, as Lord Phillips PSC stated, the significance of control is that the defendant can direct what the tortfeasor does, not how he does it.”
- The three remaining factors were that (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant, (2) the tortfeasor’s activity is likely to be part of the business activity of the defendant, and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor. It was explained in Cox that those factors are inter-related, and reflect the principal justifications which have been put forward in our law for the imposition of vicarious liability: “The first has been reflected historically in explanations of the vicarious liability of employers based on deemed authorisation or delegation, as for example in Turberville v Stampe (1697) 1 Ld Raym 264, 265, per Holt CJ and Bartonshill Coal Co v McGuire (1858) 3 Macq 300, 306, per Lord Chelmsford LC. The second, that the tortfeasor’s activity is likely to be an integral part of the business activity of the defendant, has long been regarded as a justification for the imposition of vicarious liability on employers, on the basis that, since the employee’s activities are undertaken as part of the activities of the employer and for its benefit, it is appropriate that the employer
