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VICARIOUS LIABILITY
Vicarious liability means that one person (even though otherwise not a tortfeasor) is liable for a tort
committed by someone else. It is therefore an extreme form of strict liability. The only clear example in
English law is the liability of employers for the torts committed by their employees in the course of
employment.

Introduction

Issues to be considered:
• When is an employer liable for torts committed by an employee?
• Our analysis will focus only on the common law tort of vicarious liability: Employer’s liability is
outside the scope of the module
• Are there good reasons to justify this approach? Distributive justice?
• Vicarious liability entails strict liability of the employer

The elements of the tort

If there is …

1. An employer – employee relationship (1) (or “akin to”),

2. the torts committed by an employee (2)
3. during the course of employment (3),
…will be compensable by the employer

Justifications of vicarious liability

Contrary to the tort of negligence, which is fault based, vicarious liability is a form of strict liability. It
cannot be explained in terms of corrective justice. Distributive justice considerations provide a satisfactory
(?) justification of vicarious liability.
Over time, courts and academics have tried to find an appropriate policy justification for vicarious liability.
Here are some of their attempts:

• Employer has ‘deeper pockets’: the employer is most likely to be a more solvent defendant than
the employee. Consider: INSURANCE, and that the employer is in a better position to redistribute
the cost of the accident to the clients. JGE vs Portsmouth Roman Catholic case.
• ECONOMIC BEENEFIT: Employer benefits from the work of the employee, and it is therefore
fair that the employer should also carry the burdens of the employee’s work.
• RISK: Employer should be liable for the tortious actions of the employee, because if the employer
had not employed the employee in order to do the particular work the harm would not have
happened. Selection of Employees.
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Req No.01: Employer – Employee relationship

Employer will be liable if the tort has been committed by employee or akin to employment*,
not to the wrong done by Independent contractor.

Case : Ready Mixed Concrete vs Minister of Pensions and National Insurance 1968
In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497
a concrete-manufacturing company introduced a scheme whereby its concrete would be transported by a
team of lorry owners described as ‘owner-drivers’. The agreement between the lorry owners and the
company provided that they would be paid a fixed mileage rate for the service and it also specified their
employment status to be self-employed independent contractors. Although lorry owners were required to
paint the lorries in the company’s colours and wear the company’s uniform, the drivers owned the lorries
and bore the financial risk of the enterprise. In a dispute about whether the lorry owners were employees or
independent contractors, the economic reality test was applied and on the facts of the case it was found that
the lorry owners were unlikely to be acting as agents or employees of the company but were, in reality,
independent contractors working under a contract for services. The key factors influencing the Court in
reaching its conclusion were that the drivers (1) owned and maintained the lorries; (2) were free to hire
other drivers in the event of holiday or sickness; and (3) took the chance of profit and bore the risk of loss.

Problems : In modern world, business models changed like introduction of Agency staff in many
industries, clerical and Hospital work, insurance companies, utility companies etc.

It has proved difficult to identify a test that will distinguish an employee (for whom there is vicarious
liability) from an independent contractor (for whom generally there is not). The issues are surprisingly
complicated and the answer may depend on the precise contractual relationship. It is possible here only to
identify the broad issues that arise. Example : A traditional example of the distinction was that a personal
chauffeur is an employee and a taxi driver is an independent contractor.

No single test has proved satisfactory as a distinction between employees and independent
contractors. Courts have referred to the extent to which the employer can control how the individual
does the job.

1. Factors : Which factors are there to consider? Control of the employee’s work? Whether
the (so-called) “employee” uses own equipment, or hires own helpers? Degree of financial
risk for the employee? Degree of responsibility for investment, profits and management?
2. In older case law this distinction was somewhat easier to make, since a century and more
ago employment was characterised more by the ‘master – servant’ relationship; Yewens v.
Noakes (1881) 6 QBD 530 = “subject to the command of his master”.
3. In the “modern world” for the purposes of vicarious liability, a person should not be
regarded as an independent contractor simply because according to the technical
requirements of employment law he is not an employee (or so the case-law sayd, as we will
see shortly).
4. Control Test : The traditional idea stemming from older case-law = Level of CONTROL
(of WHAT is done + HOW it is done) is OUTDATED.
5. Nowadays employees ae expected to have “Initiative”, exercise “discretion” = Control is
just one in a number of factors: “Managed” / “Accountable” to the employer? Centrality of
activities to the enterprise? Integration of activities to the employer’s business?
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6. Cooke J warned against the risk of a rigid application of the factors for consideration,
saying: No exhaustive list has been compiled and perhaps no exhaustive list can be
compiled of the considerations which are relevant in determining that question, nor can
strict rules be laid down as to the relative weight which the various considerations should
carry in particular cases.
Ø Case : Various Claimants v Catholic Welfare Society and others [2012] “Christian
Brothers” : A large number of men (C) alleged historical sex abuse at St William, a school for
juveniles, by brothers of the Institute of the Brothers of the Christian Schools who were the
headmaster and staff (the “Institute”). The Institute did not own the school but their members acted
as the headmaster and teachers of the school. The members were contractually employed not by
the Institute but by St William. It had been held that the owner of St William was vicariously liable.
Lord Phillips set out five considerations that would help:
1. The employer is more likely to have the means to compensate the victim and can be
expected to have insured against that liability.
2. The tort will have been committed as a result of activity being taken by the employee on
behalf of the employer
3. The employee’s activity is likely to be part of the business activity of the employer;
4. The employer, by employing the employee to carry on the activity, will have created the
risk of the tort committed by the employee and
5. The employee will, to a greater or lesser degree, have been under the control of the
employer.

Ø Case : Cox vs Ministry of Justice The claimant had worked as the catering manager at a prison.
She suffered injury as the result of the negligence of a prisoner, performing paid work under the
claimant’s supervision. In one of the first decisions applying the Supreme Court ruling in CCWS,
the Court of Appeal held that in determining whether an employment relationship for the purposes
of vicarious liability existed, it was necessary to ask whether the relationship between the claimant
and the Ministry was one akin to employment. The Court of Appeal applied the relevant features
identified in CCWS and held that it was clear that those features distinctly applied in this case. The
defendant’s argument that, unlike employees, prisoners have no interest in furthering the objectives
of the prison service was rejected. A prisoner undertaking useful work for nominal wages binds
him into a closer relationship with the prison service than would be the case for an employee and
strengthens, rather than weakens, the case for imposing vicarious liability. Prisoners are in a
relationship akin to employment to the Ministry of Justice when carrying out their duties.

Ø Case : Armes v Nottinghamshire County Council [2017] The question in Armes was
whether a local authority was vicariously liable for the physical and sexual abuse perpetrated by
the foster parents into whose care they placed the claimant when she was seven years old. The case
proceeded on the basis that there was no negligence on the part of the social workers involved with
placing the claimant with the foster parents or in the supervision and monitoring of the placements.
Nevertheless, the claimant argued that the local authority should be vicariously liable for their
wrongful acts of abuse. The Court of Appeal affirmed the judge’s decision and the matter was then
referred to the Supreme Court to consider whether the relationship between a local authority and
foster parents fulfils the criteria for vicarious liability. In ruling that the local authority was
vicariously liable for the abuse committed by the foster [Link] the basis of Cox Judgment:
foster parents are in a relationship akin to employment with the local authority
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Ø Case : Barclays Bank plc v Various Claimants [2020] UKSC 13. The defendant bank was
vicariously liable for the sexual assaults against prospective staff committed by a doctor, who was
an independent contractor. Decision : The five factors identified in the CCWS decision may help
to identify a relationship analogous to employment where it is not clear whether or not the
tortfeasor is carrying on their own independent business. However, ‘where it is clear that the
tortfeasor was carrying out his own independent business’ it was not necessary to consider
the five criteria.

Ø Borrowed Employees
There is a particular problem with borrowed employees, where, for example, one company supplies
a crane and its driver to work for another company. It is plain that the driver remains an employee,
but of which company? The presumption seems to be that the driver remains the employee of the
lending company unless this is clearly displaced on the facts. In Mersey Docks and Harbour
Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1, a mobile crane and a driver had been
hired out to a firm of stevedores under a contract which stipulated that the driver was to be the
employee of the stevedores. In spite of this term, the employee’s original employer, the Harbour
Board, paid his wages and retained the right to dismiss him. The hirer, Coggins & Griffith, directed
the tasks which were to be performed by the driver but not how he was to operate the crane. In the
course of his work the driver negligently injured the plaintiff and the question to be determined was
whether the firm of stevedores or the Harbour Board were vicariously liable. In holding the Harbour
Board liable the House of Lords said the control test* was still important. They noted that factors
such as the type of machinery that had been loaned (the more complicated it is, the more
likely the main employer will remain liable) and factors such as who pays the employees’
national insurance contribution and the duration of the alternative service with the
temporary employer are also relevant.

Req No. 02 : Employee Must Have Committed The Tort

The employer is liable vicariously only if the employee has committed a tort. Generally, NEGLIGENCE
(for instance, accidents in the workplace), but there are other possibilities, such as Sexual assault and
harassment (Ex: Mairowski v Guy’s and St Thomas’ NHS trust [2006]: Homophobia = Supervisor in
breach of the Protection from Harassment Act 1997.

Req No. 03 : DURING THE COURSE OF EMPLOYMENT

The employer should be liable where the employee’s act is wholly connected to the job for which they are
employed.

Test No. 01 : Salmond Test :

A master… is liable even for acts which he has not authorised, provided that they are so connected with
acts which he has authorised that they may be rightly regarded as modes – although improper modes – of
doing them. An act will be in the course of employment under the test if it is (a) a wrongful act authorised
by the [employer], or (b) a wrongful and unauthorized mode of doing some act authorised by the
[employer].

Applied in :
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1. Century Insurance Co Ltd v Northern Ireland Road Transport Board : a tanker driver who,
while delivering petrol, lit a cigarette and carelessly discarded a match causing a fire, was held to
be acting within the course of his employment. It was said that the act of lighting the cigarette,
while not in itself connected with his job, could not be looked at in isolation from the surrounding
circumstances.
2. General Engineering Services v Kingston and St Andrew Corporation [1989] 1 WLR 69,
firemen operating a ‘go-slow’ policy who took five times as long as they normally would have
done to drive to the scene of a fire were acting not within the course of employment. The Privy
Council indicated that it was as though they had simply ignored the call which would not be a mode
of performing their duties. This is however a case which founds itself firmly on the Salmond test
and holds that a wrongful and unauthorized act is outside the course of employment.
3. Trotman v North Yorkshire CC a teacher who used school trips to commit sexual assaults on a
dependent child. It is difficult to describe such conduct as an unauthorised mode of carrying out
the deputy headmaster’s duty. The Court of Appeal refused to hold the employer vicariously liable
on the ground that the perpetrator was not acting in the course of employment; his conduct was said
to be a negation of the task of caring for the plaintiff and not an unauthorised mode of carrying out
an authorised task.

Test No. 02 : Close Connection Test (Lister vs Hesley Hall Ltd.)

Facts : The warden of a residential school for children, who had some years after the events been
convicted of sexual assaults on pupils in his care, was acting in the course of employment so as to make
his employers vicariously liable. the Law Lords focused on the close connection between the acts of
the warden and the job he was employed to do. The defendants had entrusted the care of the children
to the warden and the abuse had been inextricably interwoven with the carrying out of his duties: his
torts had been so closely connected with his employment that it would be fair and just to hold the
defendants vicariously liable.

Applied in :
1. Dubai Aluminium Co Ltd v Salaam
2. Mattis v Pollock [2003]
3. CCWS

Test No. 03 : Mohamud v WM Morrison Supermarkets : (Sufficient Connection Test).

Vicarious liability for an employee’s attack on a customer at a petrol station was considered by the Supreme
Court. The claimant was first racially abused verbally in the petrol station kiosk and then physically attacked
by the employee who had followed him to his car. The Court of Appeal’s conclusion that the employee’s
attack was personally motivated and had nothing to do with his employment was unanimously rejected by
the Supreme Court, where Lord Toulson said that the employee’s motives were ‘neither here nor there’.
The employee’s job was to attend to customers and his conduct in answering the claimant’s request was
inexcusable but fell within the ‘field of activities’ assigned to him.

Applied in : Bellman v Northampton Recruitment : Sufficient connection Test.

Test No. 04 : Various Claimants v Morrison Supermarkets plc [2018] EWCA Civ 2339 : Close
connection test.
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Express Prohibition :

There is a further complication where the employee is doing something specifically forbidden by the
employer. The outcome is then said to depend on whether the prohibition limited the sphere of
employment (in which case the employee is not in the course of employment) or limited the manner
in which the employee carried out duties (in which case the employee is still in the course of
employment).

Limpus v London General Omnibus Co (1862) 1 Hurl & C 526 a bus driver was instructed not to race
with or obstruct the buses of rival companies. He disobeyed this instruction and caused an accident in which
the plaintiff’s horses were injured. Despite the prohibition, the employers were liable since this was simply
an improper method adopted by the employee in performing his duties.

Rose v Plenty [1976] 1 WLR 141, the employer was liable when, despite his employer’s express
instruction not to do so, a milkman employed a boy aged 13 to help him on his milk round. Due mainly to
the milkman’s negligent driving the boy was injured. In the Court of Appeal, Lord Denning said the driver
was still within the course of employment despite the express prohibition because he was still acting for the
master’s purposes, business and benefit.

Frolics and detours

The employer is not liable where the employee’s act is wholly unconnected to the job for which they
are employed.
1. Beard v London General Omnibus Co : The employer of a bus conductor who, in the absence of
the driver, negligently drove the bus himself was held not liable.
2. Storey v Ashton : The defendant’s employees had been instructed to deliver wine and to bring back
some empty bottles to the employer’s offices. On the return journey one of the employees
persuaded the other that, since it was by then after hours, they should set off in a different direction
to visit some relatives. The employer was not liable for an injury caused by the employee because,
at the time of the accident, the driver was not acting in the course of employment; he was on a new
and independent journey which was entirely for his own business.