Lloyd's Maritime and Commercial Law Quarterly
VICARIOUS LIABILITY FOR EMPLOYEE THEFT: MUDDLING VICARIOUS LIABILITY FOR CONVERSION WITH NON-DELEGABLE DUTIES
Phillip Morgan*
Brink’s Global Services v. Igrox
Employee theft is a major problem.1 While the thief inevitably commits the tort of conversion,2 the prospects of recovering against him are low. Where the victim is a third party rather than the employer, a claim against the employer may be more attractive. Brink’s Global Services Inc v. Igrox Ltd
3 confuses, distorts and widens vicarious liability to allow recovery against the employer vicariously in circumstances where recovery against the employer should have occurred via different means.
1. Claims against employers
With employee torts there are three routes to claim against the employer: first, vicarious liability for the tort; secondly, breach of a direct duty of care to the victim of the tort to select proper employees,4 and train and monitor them; or, thirdly, the employer may have a non-delegable duty to the victim, the performance of which the employer cannot delegate to another,5 so that, even if the employer has selected, trained and monitored its employees properly, the employee’s tort will place the employer in breach of this duty.
* Lecturer in Law, University of Southampton. The author would like to thank Professor Rob Merkin for his helpful comments on an earlier draft of this note. All errors, of course, remain my own.
1. For example, employee theft cost United Kingdom retailers £1,624 million in 2010: Centre for Retail Research, Retail Crime in the UK (2010) www.retailresearch.org/ukretailcrime.php (accessed 31 December 2010).
2. Or, if not, trespass to goods. S Green and J Randall, The Tort of Conversion (Oxford, 2009), 75, state that conversion has three elements: “1. A claimant who has superior possessory right; 2. A deprivation of the claimant’s full benefit of that right; and 3. An assumption by the defendant of that right”. Deprivation of the claimant’s full benefit is explained as “such that he is unable to exercise that right in its full spectrum” (ibid, 218). For an alternative definition, see S Douglas, “The Nature of Conversion” (2009) 68(1) CLJ 198, 209: “a conversion exists whenever a defendant intentionally exercises exclusive control over the claimant’s chattel without his consent”. For criticisms see P Morgan, “The Tort of Conversion by Sarah Green and John Randall QC” (2010) 30(3) LS 494.
3. [2010] EWCA Civ 1207 (“Brink’s v. Igrox”).
4. See, eg, Mattis v. Pollock [2003] EWCA Civ 887; [2003] 1 WLR 2158.
5. J Murphy in A Dugdale and M Jones (eds), Clerk and Lindsell on Torts, 20th edn (London, 2010), (hereafter “Clerk & Lindsell”), 6–57, 386.
CASE AND COMMENT
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