Introduction

The term vicarious liability refers to situations where one party is held liable for the torts
of another. It arises because of a specific relationship between the parties. In fact, the
term 'vicarious' actually means 'on behalf of another'. It is not a tort itself, but merely a
determination of who is potentially liable.

Key phrase: 'vicarious liability'

Vicarious liability is the liability of one party for a tort committed by another
party.

Vicarious liability can be described as a form of secondary liability. While a defendant

who is held liable to compensate a claimant is normally being held liable for his own
wrongdoing (primary liability), a defendant who is vicariously liable is being held
responsible for the wrongdoing of another person. Such a defendant is being required to
compensate the claimant for harm caused by that other person's tortious actions.
There is no need to prove fault on the part of the defendant. The defendant who is
vicariously liable incurs what is called 'strict liability' – liability without fault.

Key phrase: 'strict liability'

Where a party is liable despite the absence of any fault.

Vicarious liability has been most commonly exercised in employer and employee
relationships, where an employer might be vicariously liable for the torts of the employee.
You should be aware that it can arise in other situations, such as where there is a
principal and an agent. However, this element focuses on the employer / employee
relationship (and similar relationships).
The issue of vicarious liability
The victim will have a claim against the
employee personally. But should the victim
also have a claim against the employer on
Employer – the basis of the employee's negligence?
hardware shop

?
An employee /
employer
relationship

Employee - delivery
driver employed by Victim
a hardware shop Negligent driving
causes an accident
The rationale behind vicarious liability

As already mentioned, vicarious liability is an example of strict liability. What is the

justification for imposing liability on a party not at fault? The following justifications have
been cited for vicarious liability – some are more convincing than others. We will
summarise these on the following pages.

Choice of
Control / employees Benefit /
supervision burden

Deep Raising
pockets Rationale behind standards
vicarious liability
Deep pockets

The employer is in a better financial position than the employee to compensate a victim –
colloquially known as the 'deep pockets' justification. Many employers will have
insurance for claims of this nature.

Choice of
Control / employees Benefit /
supervision burden

Deep Raising
pockets Rationale behind standards
vicarious liability
Control / supervision

The employer exercises both control and supervision over its employees.

Choice of
Control / employees Benefit /
supervision burden

Deep Raising
pockets Rationale behind standards
vicarious liability
Choice of employees

An employer may be careless in selecting negligent employees and should suffer the
consequences of that. Vicarious liability should encourage employers to select staff
carefully.

Choice of
Control / employees Benefit /
supervision burden

Deep Raising
pockets Rationale behind standards
vicarious liability
Benefit / burden

An employer obtains the benefit of an employee, so it is only fair that it suffers any
corresponding problem / burden caused by the employee – the 'benefit/burden'
justification.

Choice of
Control / employees Benefit /
supervision burden

Deep Raising
pockets Rationale behind standards
vicarious liability
Raising standards

Vicarious liability encourages employers to provide better training, supervision and

control of employees ie it helps to maintain good standards of practice.

Choice of
Control / employees Benefit /
supervision burden

Deep Raising
pockets Rationale behind standards
vicarious liability
Elements of vicarious liability
A tort has been committed by
To establish that Party B should be Party A
vicariously liable for a tort committed by
Party A it must be shown that the three
elements on the right are satisfied. and

Party A is an employee of
Party B Party B, or failing that, Party A
is in a relationship akin to
? employment with Party B

and

Tortfeasor The tort was committed in the

Victim
(Party A) course of Party A's
employment / quasi-
employment

A tort has been committed by
Party A
and
Party A is an employee of
Party B, or failing that, Party A
is in a relationship akin to
employment with Party B
It is essential to establish that a tort has
been committed by another person (Party
A) before the defendant can be made
vicariously liable. If there is no tort there
can be no vicarious liability. In the vast
majority of cases the tort is negligence,
although an employer may also be held
liable for other torts such as assault,
battery, false imprisonment or defamation
by an employee.

and

The tort was committed in the

course of Party A's
employment / quasi-
employment.

A tort has been committed by
Party A
and
Party A is an employee of
Party B, or failing that, Party A
is in a relationship akin to
employment with Party B
and
The tort was committed in the
course of Party A's
employment / quasi-
employment.
Once it has been established that a tort
has been committed by Party A, then the
relationship between Party B and Party A
must be considered. Party B will not be
vicariously liable unless that relationship
is:
a) One of employment; or
b) Of the same nature as an
employment relationship ('akin' to an
employment relationship).
In the vast majority of cases, it will be
very clear whether someone is an
employee or not. However, occasionally it
is not clear, and this together with the
concept of 'akin to an employment
relationship', have given rise to a large
body of case law. This is considered in a
separate element.

A tort has been committed by
Party A
and
Party A is an employee of
Party B, or failing that, Party A
is in a relationship akin to
employment with Party B
and
The tort was committed in the
course of Party A's
employment / quasi-
employment.
Even if a tort has been committed and
the tortfeasor is clearly an employee, an
employer is not responsible for the
wrongful acts of the employee unless
such acts are done in the course of
employment.
Historically, a tort was in the course of
employment if the wrongful act was:
a) Expressly or impliedly authorised by
the employer;
b) Incidental to the carrying out of the
employee's proper duties; or
c) An unauthorised way of doing
something authorised by the
employer.
Since 2016 it seems the emphasis has
now changed.
Continued…

A tort has been committed by
Party A
and
Party A is an employee of
Party B, or failing that, Party A
is in a relationship akin to
employment with Party B
An employer will be held vicariously liable
for the acts of their employee if there is a
'closeness of connection' between the
employee's wrongful act and his
employment. The courts focus on the
time the wrongful act was committed and
all other relevant circumstances. This is
almost certainly a broader test.
We will now look at the 'close connection'
test in more detail.

and

The tort was committed in the

course of Party A's
employment / quasi-
employment.
Current approach: close connection test

Recent case law emphasises the importance of the connection between the
employee's employment duties and the tort committed: is there a close connection
between the employee's tort and the role he/she is employed to do?

Key case: Lister v Hesley Hall Ltd [2002] 1 AC 215

The defendant company, who ran a local authority children's home, was held
vicariously liable for sexual abuse committed by one of its employees, a
house father / warden. Lord Steyn stated that the correct approach when
determining this issue 'is to concentrate on the relative closeness of the
connection between the nature of the employment and the particular tort.' In
this case, the warden's torts were closely connected with his employment as
it was because of his position that he was able to exploit the children, so it
was held to be fair and just to hold the employer vicariously liable. The tort
was committed on the employer's premises during working hours.
The 'close connection' approach from Lister was used in Mattis v Pollock (t/a Flamingo's
Nightclub) [2004] 4 All ER 85. A bouncer was chased out of the defendant's nightclub
where he was an employee. The bouncer ran to his home and returned with a knife. A
short distance away from the nightclub he came across a group of people, including the
claimant, some of whom had been involved in the earlier incident. The bouncer grabbed
the claimant and stabbed him in the back, causing him severe injuries. The Court of
Appeal held that since the stabbing represented the culmination of the incident that had
started within the club, the nightclub was liable for the bouncer's assault on the claimant.
Approaching the matter broadly, at the moment when the claimant was stabbed, the
defendant's responsibility for the bouncer's actions was not extinguished. Note that the
court appear to have been influenced by the fact that Flamingo's advocated violence by
their bouncers, which was not responsible. This was seen as a just result for the claimant
who had been left paralysed.
In Mohamud v WM Morrison Supermarkets plc [2016] UKSC 1 Morrisons supermarket
was found to be vicariously liable for the serious assault and battery perpetrated by one
of its employees, Mr Khan, on a customer, Mr Mohamud, which happened on the
forecourt of a petrol station owned by Morrisons. Lord Toulson (with whom the other
judges agreed) stated that the closeness of connection test is actually a two-fold test:
(a) What functions or 'fields of activities' have been entrusted by the employer to the
employee (what was the nature of his job)?
(b) Was there sufficient connection between the position in which he was employed and
his wrongful conduct to make it just for the employer to be held liable?
It was held that it was Mr Khan's job to serve customers and answer their inquiries. When
Mr Mohamud first approached the petrol station kiosk and asked Mr Khan if he could
print some documents from his USB, Mr Khan's rude response was clearly 'closely
connected' with his duties (responding to inquiries). The verbal, racial and physical abuse
that ensued as Mr Khan followed Mr Mohamud to the forecourt and his car was held to
be a 'seamless episode', an unbroken sequence of events that started with an act that
was closely connected to his employment duties. The abuse was not an act of personal
vengeance and as Morrisons had entrusted Mr Khan to deal with members of the public it
was held to be just that they should be responsible for his abuse of trust.
The courts have also used the 'close connection' test to determine whether a negligent
act is committed in the course of employment (the cases mentioned up to this point have
concerned 'intentional' torts, such as battery).

In Fletcher v Chancery Lane Supplies [2016] EWCA Civ 1112 the claimant, a policeman,
was cycling when he collided with an employee of the defendant, a pedestrian who was
crossing the road without looking properly. The defendant had a shop and office on
opposite sides of the road. At the time of crossing the road the tortfeasor was wearing his
company uniform with the company logo and work boots. He had finished his work shift
at midday and the accident happened 40 minutes later. He was near the shop where he
worked but there was no evidence that his crossing the road was in any way linked to his
job (there was no evidence he was heading back to the shop/office). The court applied
the approach from Mohamud and said the importance was whether there was a
connection between his work and the negligence. It was held on the evidence that it
could not be established that there was a close connection. It was impossible to know if
crossing the road was sufficiently connected to the tortfeasor's work at the time to make it
reasonable to find his employer vicariously liable because it was unknown why the
tortfeasor had been crossing the road.
The close connection test was also applied in Bellman v Northampton Recruitment Ltd
[2018] EWCA Civ 2214. Mr Major was the managing director of Northampton
Recruitment Ltd ('NR'). Part of his role was to organise the Christmas party. After the
Christmas party, Mr Major paid for taxis to take all those who wanted to go to a hotel for
further drinks. At the hotel, the guests continued to drink and discussed a variety of
topics. The majority of drinks were paid for by NR. The conversation turned to salaries.
Mr Major became annoyed at being questioned about salaries. He summoned the
remaining employees and began to lecture them on how he was in charge and that he
would do what he wanted. The claimant challenged this non-aggressively. In response,
Mr Major punched the claimant. After the claimant got back on his feet, Mr Major struck
him again, knocking the claimant out. The claimant fell and hit his head. His injuries led to
traumatic brain damage.

The court applied the close connection test to decide whether the employer (NR) was
vicariously liable for Mr Major's assault.

Continued…
The first question (see Mohamud above): what were the functions entrusted to Mr Major?
Mr Major was the directing mind of NR, was in overall charge of all aspects of NR's
business, did not have set hours, controlled his own methods of working, had
responsibility for all management decisions including discipline and viewed the
maintenance of his managerial authority as a central part of his role. His remit and
authority were therefore very wide.

The second question: was there a sufficient connection between the position in which the
tortfeasor was employed and his wrongful act to make it right that the employer should be
held vicariously liable (crucially, had the tortfeasor used or misused the position entrusted
to him in a way which injured the third party)? It was held that there was a sufficient
connection. Despite the time and place (2am at a hotel), Mr Major was purporting to act
as managing director of NR. He was exercising his authority over subordinate employees
who were challenging his decisions. He was purporting to use his position and drove
home his managerial authority, with which he had been entrusted, with the use of blows.
The attack arose out of the misuse of the position entrusted to Mr Major as managing
director. It was not impromptu work drinks, but drinks occurring the same evening as the
work event which had been paid for and organised by Mr Major on behalf of NR. The
court viewed this case as analogous with Mohamud. It was Mr Major's job to take
managerial decisions and enforce his authority. He followed up the discussion about
salaries with a lecture and blows just as in Mohamud.
Pre 2002 case law

As mentioned above, before 2002 (before Lister v Hesley Hall) there was a different test.
A tort was in the course of employment if the wrongful act was:

(a) Expressly or impliedly authorised by the employer;

(b) Incidental to the carrying out of the employee's proper duties; or

(c) An unauthorised way of doing something authorised by the employer.

We set out in the following pages some of the pre-2002 case law because some of the
facts in those cases may be similar to the facts of situations you may encounter. The
cases are still likely to be useful, but you should always consider whether the same
conclusion would be reached by applying the close connection test. You should consider
this particularly where the conclusion in the case was that the act was not in the course
of employment – would a different conclusion be reached applying the close connection
test?
Cases where it was concluded the act was in the course of employment

The following cases illustrate examples of when an employee was found to be acting in
the course of employment and their employer was held vicariously liable.

Century Insurance v Northern Ireland Road Transport Board [1942] AC 509 in which a
lorry driver caused an explosion by carelessly smoking a cigarette whilst filling his lorry
with petrol. This was held to be in the course of employment as he was doing something
authorised (filling the lorry with petrol), albeit in an unauthorised manner (smoking whilst
filling the lorry with petrol).

Harvey v RG O'Dell [1958] 1 All ER 657 in which a workman driving negligently injured a
colleague who was his passenger. At the time, they were travelling five miles during
working hours to get lunch. This was incidental to the workman's work and therefore
within the course of employment. Stopping to take a lunch break was a reasonably
expected act by an employee.
Rose v Plenty [1976] 1 WLR 141 in which a 13-year-old boy was injured whilst assisting
a milkman on his rounds. The milkman had been expressly prohibited from enlisting help
by his employer. Due to the milkman's negligent driving, the boy had his leg trapped
under the milk float. Denning LJ found the employer vicariously liable, on the basis that
the prohibited act (ie enlisting the help of the boy) was done 'for the employer's business'.
Scarman LJ, who also found the employer liable, followed the more traditional analysis,
holding that the prohibited act simply constituted an unauthorised mode of performing the
task he was employed to carry out.

Smith v Stages [1989] 2 WLR 529 in which two employees were injured in a car crash.
As they had been paid travel expenses, were paid for travelling time and were within
working hours, the House of Lords held that they were acting in the course of
employment. In determining whether an employee is acting within the course of
employment when travelling on the highway, the material question is whether he was
going about his employer's business at the material time. It is well established that
employees are generally outside the scope of their employment whilst travelling to and
from work unless on their employer's business.
Cases where it was concluded the act was not in the course of employment

In the following cases employers escaped the imposition of vicarious liability for the
actions of their employees since the employees were deemed to have been acting
outside the scope of their employment.

If the employee's act was unauthorised or expressly prohibited, he was traditionally

deemed to have been on a 'frolic of his own' (Joel v Morrison (1834) 6 C & P 501) and
the employer would not be vicariously liable.

Beard v London General Omnibus Co [1900] 2 QB 530 in which a bus conductor, with
delusions of grandeur, attempted to drive a bus and in doing so managed to run over the
claimant. The bus conductor was not authorised to drive the bus, driving the bus was not
incidental to his duties and he was not carrying out an authorised act in an unauthorised
manner.

Daniels v Whetstone Entertainments Ltd [1962] 2 Lloyd's Rep 1, in which an employee (a

bouncer) assaulted the claimant twice – once, during the course of a fracas inside his
employer's premises, and a second time, outside the night club. Whilst the employer
was held liable for the first assault inside the club, they evaded liability for the second.
This was seen as an act of personal revenge and was, therefore, outside the course of
employment.
In Storey v Ashton (1869) LR4 QB 476, a driver returning from delivering wine as
instructed by his employer was persuaded by his colleague to set off on a deviation from
the route back to his employer's premises. The claimant, who was injured by the driver's
negligent driving, was denied recompense from the employer, on the grounds that the
employee was not acting in the course of employment. Much depends upon the extent of
the deviation, whether travelling was in working time and the actual purpose of the
journey. In Storey the deviation was not within the course of employment as it was a new
and independent journey, entirely for their own purpose (to visit relatives).

In Twine v Bean's Express Ltd [1946] 62 TLR 458, despite express instructions not to do
so, the lorry driver (an employee) picked up a hitch hiker, who was subsequently injured
as a result of the driver's negligent driving. The Court of Appeal found that the hitch hiker
was a trespasser and the employee was not acting within the scope of employment as he
was doing something expressly prohibited. A consideration of policy is probably helpful in
squaring the decisions made. In Rose v Plenty (above) Denning LJ distinguished the
facts from those of Twine on the basis that in Rose the prohibited act was being done for
the purpose of the employer's business (the boy was helping the milkman to deliver milk),
but this was not the case in Twine.
The employer's indemnity/contribution
In vicarious liability situations there are often joint tortfeasors, ie two parties, such as
employer and employee, who are jointly liable. In reality, often the only party sued is the
one in the best position financially to meet any judgment.

Under s 1(1) Civil Liability (Contribution) Act 1978 an employer may be entitled to seek
an indemnity from his employee should he be forced to pay damages in respect of the
employee's tort. So although the victim claims against the employer, the employer may
be able to claim something back from the employee. The court will allow such a claim if it
is 'just and equitable' to do so.

Generally, litigation against an employer is conducted on the employer's part by

their insurers who will be paying in the event of liability being established. The right to a
contribution from an employee is rarely exercised by insurers following their compliance
with a 'gentleman's agreement' not to do so in the absence of wilful misconduct or
collusion.
Summary in relation to vicarious liability
• Vicarious liability is the liability of one party for a tort committed by another party.
• Party B is vicariously liable for a tort committed by Party A where:
• A tort has been committed by Party A;
• Party A is an employee of Party B, or in a relationship akin to employment; and
• The tort was committed in the course of that employment / quasi-employment.
• A tort will be committed in the course of employment (the last of the three points
above) if there is a sufficiently close connection between the wrongful act and the
employment.
• Subsequent cases established that the same approach could be used when
considering vicarious liability for negligence.
• The close connection test is actually a two-fold test:
• What functions / field of activities has the employer entrusted to the employee?
• Is there a sufficient connection between the position in which the employee was
employed and the wrongful conduct to make it just for the employer to be held
liable?