Who’s paying for all of this?! Thor: the Dark World Part 2

(This guest post was written by Christopher Chan, who is currently studying for his Master of Laws at University College London.  He is an aspiring barrister in London, England looking to practise in the areas of insolvency and restructuring.)

In the first part of my examination of Thor: the Dark World, I looked at who the University of Greenwich (“the Claimant”) could sue for the property damage it suffered as a result of the battle between Thor and Malekith in the final act of the film. Here, we take a look at whether the Claimant may still be compensated for its loss by suing the employer of the film’s protagonists, S.H.I.E.L.D., under the doctrine of vicarious liability.

The conclusion reached in my previous analysis was not a good one for the Claimant. There is a claim against Malekith, but serving his estate in the realm of Svartalfheim with a claim form would be difficult. Suing the God of Thunder presents the same problem, but there is also the additional concern of public authority immunity from negligence claims. Ms Foster, Mr Selvig, Ms Lewis and Mr Boothby (“the Additional Party”) all had a hand in the loss suffered by the Claimant as well, but the amount of assets they own would make recovery from them pointless. It would seem then that the University would have to pay for the renovation of their institution out of their own pocket.

Luckily, the University of Greenwich may still raise a claim against S.H.I.E.L.D. as the employer of the film’s protagonists. This would be under the doctrine of vicarious liability, which makes an employer liable for the torts committed by its employees. This is a very attractive option for the Claimant because not only is S.H.I.E.L.D.’s primary residence on Earth, it possesses a substantial fortune to recover from. In the second part of my analysis of Thor: the Dark World, I look at how the University of Greenwich can argue the doctrine of vicarious liability in English tort law in making S.H.I.E.L.D. liable for the negligence of Thor and his companions.

 

Vicarious liability

Simply put, vicarious liability makes an employer liable for a tort committed by the employee. The tort in question here is negligence. The doctrine requires that (i) a tort was committed by the employee; (ii) that the employee can be said to be in a relationship of employment with the employer; and (iii) that the tort was committed in the course of employment. In the first part of my analysis, I had established already the strong case that the Claimant has against the defendants for negligence. The following discussion will focus on the second and third requirements of vicarious liability as they relate to Thor and the Additional Party.

 

An employment relationship

It may seem obvious who the employee and employer are between the two parties, but determining whether such a relationship existed when a tort was committed has proven to be a complex matter for the Courts. The starting point will be something as simple as whether there is a contract of employment in existence. But beyond the hard evidence available, the traditional test has been one of control: an employer is someone who could not only tell an employee what to do, but also how to do it. Deviations are made from this general test depending on the facts and circumstances of each case. Take an employee who possesses special skill, such as the ability to summon lightning. An employer may well be able to tell Thor what to do with this skill, but giving orders on how to do so is another matter entirely!

In fact, the traditional test of control has shown its limits in applicability over the years. In the case of Cassidy v Ministry of Health [1951] 2 KB 343, an employer was found liable for the torts of its employees despite the fact that the latter had special skill and thus an absence of control. The modern approach of whether there is an employment relationship takes a holistic view; the courts will take a look at the entire relationship. Certain elements will undoubtedly be of particular significance, such as the degree of control, who has the right of appointment and dismissal, method of payment, and the provision of work equipment (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497).

The film does not provide much evidence as to what sort of relationship S.H.I.E.L.D. has with Thor or the Additional Party. We know from Avengers Assemble that Thor is at the very least an Avenger, and Mr Selvig was working for S.H.I.E.L.D. at the beginning of that film before he was brainwashed by Loki. However, Mr Selvig was interned in a mental hospital by the time of Thor: the Dark World, so his employment with S.H.I.E.L.D. may have terminated. Finally, there is no indication as to whether Ms Foster, Ms Lewis and Mr Boothby work for S.H.I.E.L.D. either, despite sharing similar goals.

Regardless, let us not have something as silly as the lack of evidence halt us from our analysis. Were an employment relationship to be assumed, the Claimant must next prove that the tort committed by Thor and the Additional Party was done in the course of employment.

 

In the course of employment

It is not enough that S.H.I.E.L.D. was the employer at the relevant time; the tort must also be committed in the course of employment. So an employer cannot be made liable for a tort committed by an employee off the clock. Answering this question does however bring us back to the consideration made in the first part of my analysis concerning acting in a public versus private capacity. Remember, the UK Courts have shown a reluctance to impose a duty of care on a public authority for policy reasons. The preliminary question then is whether S.H.I.E.L.D. is a public authority.

The publication history of S.H.I.E.L.D. has shown that control over the organisation has shifted between the United Nations and the United States government depending on the storyline. Fortunately, both bodies are considered public authorities, which suffices for the purpose of this discussion. Thus, as employees of S.H.I.E.L.D., as a public body, there is a viable defence for our heroes to be exempt from liability for policy reasons.

Nevertheless, let us consider the possibility that S.H.I.E.L.D. is a private body. In determining this component of vicarious liability, the Courts have traditionally adopted the Salmond test. This test states that a tort will be committed in the course of employment if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master. The Courts have however demonstrated a tendency to go beyond this test by looking at how closely connected the tort is with the employment.

The relevant principle to be applied concerning the close connection test is whether the tort is so closely connected to the employment, the employer can be said to have introduced the risk of the wrong (Lister v Hesley Hall Ltd [2001] UKHL 22). The tort our heroes are liable for is the property damage they caused in the course of battling Malekith. The mandate of S.H.I.E.L.D. is the defence of Earth from paranormal and superhuman threats. It is therefore likely that Thor and his companions would be found acting in the course of their employment given the close connection found between the purpose of their conduct and the raison d’etre of S.H.I.E.L.D.

It can be concluded then that if S.H.I.E.L.D. is considered to be a public body, then our heroes have acted in the course of their employment sufficient to absolve themselves from liability. But if S.H.I.E.L.D. were a private body, then it would be vicariously liable for the torts committed.

 

Conclusion

Taking stock of the conclusions made in the first and second parts of my analysis, the University of Greenwich is advised to raise a claim against S.H.I.E.L.D. for the vicarious liability of Thor and the Additional Party. The defendant will argue vigorously that they should be exempt from liability on public policy grounds, but failing such a defence, the close connection test will prevent the employer from distancing itself from the actions of the film’s heroes. Claiming against S.H.I.E.L.D. is the most attractive option given the vast fortune it possesses, and the practical advantages of serving a claim form on a defendant that maintains a primary residence on Earth.

13 responses to “Who’s paying for all of this?! Thor: the Dark World Part 2

  1. I remember in Avengers Age of Ultron that tony Stark said “I’m not in charge. I just pay for everything, and make people look good.” And Thor has been working as an Avenger, hunting down Hydra bases for at least a few months.
    Technically, since Tony funds the Avengers, couldn’t he be considered Thor’s employer? If we consider the Avengers as Thor’s employer and not SHIELD, then it would be a private company, which would be an easier target for Greenwich to sue.

    In addition, when Tony is falling into a building, he buys it first, probably to avoid paying damages. Which means he would have likely been liable to pay damages, thus the Avengers are not a public organization (although this is post Winter Soldier, so maybe things changed in between).

    This superheroing is really gonna put a dent in Tony’s piggy bank.

    • Considering how expensive buildings can be it might be cheaper for Stark to preemptively work out some kind of deal for the city, state government or federal (in the United States of course) instead of buying up the property.

  2. I think you’re reaching on the close connection test. Even assuming an employment relationship between SHIELD and Thor (which I have already outlined my doubts about), there’s no evidence that Thor was acting in the course of his employment. Saying that SHIELD’s mission aligns with what Thor was doing isn’t exactly enough – it’s like saying someone who works for the Red Cross gives emergency first aid on their day off, and because the Red Cross helps people, that person must have been employed to do that. At best, it imports a higher standard of care on to Thor because he clearly has knowledge and ability beyond that of a reasonable person.

  3. Another problem the university would run into is proving that Dr. Foster, Dr. Selvig, and their assistants actually caused any damage themselves. As far as I’m aware, all they did was set up some kind of gizmos on sticks, not much larger than a surveyor’s tools. That seems like a minor nuisance at best. They aren’t the reason that Malekith invaded and improperly parked his spaceship, because he’s been plotting this for untold generations and the negative space wedgie just happened to hover over Greenwich, without any intervention from Dr. Foster, who merely discovered its existence. You may as well blame a geologist for pointing out the existence of an underground sinkhole. (Which turns out to be inhabited by angry mole people or something. ) Dr. Foster only acted to mitigate the effects of the space-time warp, and had no chance to properly warn the authorities of what was going to happen. As such it seems like any laws in the UK relating to good samaritans should apply here.

  4. I’ve enjoyed this analysis, but have found it needing on two fronts. The first is how international law would figure in. S.H.I.E.L.D. seems like it is essentially a USA based organization, but the damage occurred in England. Not being a lawyer, how, if at all, might this factor into the analysis wrt choice of laws, etc.? For example, if S.H.I.E.L.D. doesn’thave any UK assets, how might the jurisdiction and enforceability play out?

    Also, I’m a sadly ignorant American, but how does the state secrets doctrine function under UK law? Might that interfere with the claim? If they were sued in the UK, how might the USA state secrets rules figure in?

    So, any chance for a part III? 🙂

  5. James Pollock

    I think a contention that Thor is employed by S.H.I.E.L.D. is going to fail. There’s never been any indication that S.H.I.E.L.D. pays him, and he comes and goes as he pleases, without S.H.I.E.L.D.’s permission or control. S.H.I.E.L.D. asks him to do things, they don’t tell him to do things.

    Thor actually works for the government of his home planet of Asgard. He was acting in his role as Asgard’s protector for Midgard in confronting Malekith, not as S.H.I.E.L.D.’s agent, and his actions were for the benefit of Asgard, and only incidentally benefitted S.H.I.E.L.D. If vicarious liability for Thor’s actions lie anywhere, it’s against Asgard.

  6. Post Winter Soldier S.H.I.E.L.D. has been declared a terrorist organization, at least by the United States. Prior to that, at least according to Agents of S.H.I.E.L.D., S.H.I.E.L.D. seems to deal with other national organizations and nations through treaties, which would indicate that it is either an arm of the United Nations or some kind of transnational organization formed by treaty, like NATO. I favor the NATO treaty organization structure, since that would explain the varied control paradigm shown in the comics. Each nation would have a number of assets assign to S.H.I.E.L.D., which they might at times directly control, in the way a division or particular fleet asset might be sent to NATO for use during one period, but used for a nationally supported mission at other times. It might also explain why the U.S. exerts a high level of control over S.H.I.E.L.D., as it does NATO.
    This also makes sense based on the period of S.H.I.E.L.D.’s formation in the post WWII cold war era of the late 1940’s.

    • The comparison to NATO seems like the best description of the MCU S.H.I.E.L.D., given what we’ve seen (in AVENGERS and WINTER SOLDIER) of the World Security Council and such, as well as global structure in the first season of AGENTS OF S.H.I.E.L.D. It appears that there were various signatories across the (western?) world who made up the governing body and treaties with countries, while the organization was headquartered out of the US due to its origins growing from the WWII S.S.R. (which, despite being seemingly a joint US-UK project, seemed to born out of the US government). Even the name (Strategic Homeland Intervention, Enforcement, and Logistics Directorate) makes the most semantic sense if its a group aiding nations with their own homelands’ in the MCU’s version of the Cold War.

      • By the events of Avengers through Winter Soldier, SHIELD seemed to be evolving from US-owned to a multinational governance model, however slowly, via those mechanisms we both suspect.

  7. And how do various Good Samaritan statutes play into this in the UK?

    The employees of SHIELD, which is at the time an organization in good standing, are in the process of doing their best to save human lives and the world.

  8. Isn’t this just a simple act of terrorism by a foreign national, with Thor & Friends acting to defend others?

    You don’t sue the CIA or FBI if your house gets blown up by some jerk from Latveria. You file an insurance claim, and/or take use of government disaster relief.

    As others have noted, the protagonists in the film did not create or choose the location of the anomaly, and Malekith made these plans possibly long before the college even existed.

Leave a Reply

Your email address will not be published. Required fields are marked *