Activity 13.1 - Lunney

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Course of Study: LLB - Tort Law - LA2001
Vicarious Liability
Extract title:
Title author: Lunney, M.
Name of Publisher: Oxford University Press
Publication year, Volume, Issue: 2008
Page extent: 807 - 853
Source title: Tort law: text and materials
ISBN/ISSN: 9780199211364
VICARIOUS
LIABILITY
This chapter is concerned with the circumstances in which one party may be held liable for
the tort of another. Generally this liability may be described as secondary liability. Several
legal mechanisms have been used to achieve this result—the law of agency, the imposition of
what is described as a ‘non-delegable’ duty of care, and vicarious liability. Vicarious liabil
ity can be regarded as the most significant of the three devices mentioned above, although
similarities exist between the three.
Generally, the law of vicarious liability operates so as to impose liability on an employer,
but several conditions must be satisfied. An employer (or in older authorities, the master)
will be vicariously liable for the acts of his employee (servant); thus a contract of employ
ment (alternatively known as a contract of service) is a pre-requisite to liability. Further, the
employer is not liable for every act of the employee but only for acts that are committed in
the course of the employee’s employment. And although the matter is not free from doubt,
the better view is that the employee must commit a wrong in the Course of employment; if
the employee is not liable neither is the employer (Majrowski v Guy’s & St Thomas’s NHS
Trust [2007] 1 AC 224; cf. Stevens (2007) 123 LQR 30 and London Drugs v Kuehne & Nagel
International [1992] 3 SCR 299, per La Forest J (Supreme Court of Canada)). Once this is
accepted, whether the employee commits a tort or not is decided by the general law of tort
and raises no particular problems in this context; hence it will not be discussed further in
this chapter.
i. Development of and Justification for

Vicarious Liability
Reedie v The London & North Western Railway Company
(1849) 4 Exch 244, 154 ER 1201
The facts are not relevant to the extract.
Rolfe B
The liability of anyone, other than the party actually guilty of any wrongful act, proceeds on the
maxim 'Qui tacit per alium tacit perse' [He who does anything by another does It by himself].
The party employing has the selection of the party employed, and it is reasonable that he who
has made choice of an unskilled or careless person to execute his orders, should be responsible
Supplied by the British Library 09 Feb 2021, 10:58 (GMT)

808 V IC A R IO U S L IA B IL IT Y
for any injury resulting from the want of skill or want of care of the person employed; but nei
ther the principle of the rule, nor the rule Itself, can apply to a case where the party sought to
be charged does not stand in the character of employer to the party by whose negligent act
the injury has been occasioned. If the defendants had employed a contractor, carrying on an
independent business, to repair their engines or carriages, and the contractor's workmen had
negligently caused a heavy piece of iron to fall on a bystander, it would appear a strange doc
trine to hold that the defendants were responsible.
CO M M EN TARY
A more modern restatement of a similar theme was made by Rix LJ in Viasystems (Tyneside)
Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510, 529; liability was imposed on the
employer on the basis that ‘those who set in motion and profit from the activities of their
employees should compensate those who are injured by such activities even when performed
negligently’. Are you convinced by these rationales? Alternatively, can the employer be said
to be the cause, and therefore legally responsible, for the employee’s tort? If this is so, why
would it be any more of a ‘strange’ doctrine to hold that the defendants were liable for the
negligence of the independent contractor?
G la n ville W illia m s , ‘V ic a rio u s L ia b ility and th e M a s te r’s In d e m n ity ’

(1957) 20 MLR 220
Then there is the idea ... that the master is a cause of the mischief, or has set a noxious
Instrument In motion. In Itself this is true. The master Is a cause in the factual sense, for if he
had not employed the servant to do the particular work the harm would not have happened.
The servant might have been doing mischief elsewhere and to some other victim. However, it
is a very primitive notion that a person must be responsible for harm merely because he is Its
cause. Causation plus fault Is accepted to be enough, but not causation alone. What element
in the master-servant situation is there to replace personal fault as an intelligible ground of
liability?
[After considering and dismissing other possible justifications for the master's liability, he
continued:]
What other theory is there? Well, there Is the purely cynical theory that the master is liable
because he has a purse worth opening. The master isfrequently rich, and he is usually in su re d -
two arguments that might be used by any burglar, if he ever troubled to justify his thefts. The
strange thing is to find them put forward by judges of eminence.... Whatever (one may ask)
can have put this extraordinary idea into judges' heads, that the mere possession of wealth is
enough to justify the imposition of legal liability for a wrong? Obviously there Is something miss
ing from the dicta. There must be some factto create liability, and not merely the fact of being a
master. If so, we have another unprovable principle of natural justice: that masters ought to pay
because they belong to the class of masters. One can manufacture eternal principles of natural
justice of this sort without limit...
However distasteful the theory may be, we have to admit that vicarious liability owes its
explanation, if not its justification, to the search for a solvent defendant.

V IC A R IO U S LIA B IL IT Y 8 09
P. S . A tiy a h , Vicarious Liability (L o n d o n : B u tte rw o rth s , 1 9 6 7 )

Modern Theories in Justification of Vicarious Liability
The most widely held view among modern American writers Is that vicarious liability is justi
fied by the principle of loss-distribution. In the great majority of cases an employer who has to
pay damages for the torts of his servants does not in fact have to meet these liabilities out of
his own pocket. The cost of the liabilities Is distributed over a large section of the community,
and spread over some period of time. This occurs partly because of the practice of Insurance,
and partly because most employers are anyhow not individuals but corporations. Where the
employer Insures against his legal liabilities he will charge the cost of insurance to the goods or
services which he produces. In general this cost will be passed on by the employer in the form
of higher prices to the consumer. The consumer himself may also be able to play his part In
spreading the cost in his turn, because not all consumers are themselves individuals. Business
enterprises are usually consumers In the sense that they purchase other people's products
and services as well as supply products and services themselves. In this way the cost of tort
liabilities Is spread very thinly over a substantial part of the public. It is, moreover, spread out
over a period of time. As a rule no single Individual has to put his hand Into his pocket to pay
out any large sum at any one moment. To be sure the company will have to pay its insurance
premium, but the company can arrange Its internal accounts so as to spread this cost over the
year's activities. And, insofar as the cost of the premium Is passed on In higher costs the con
sumer pays this element of cost every time he purchases the company’s products or services.
Even where an enterprise does not Insure (and, as pointed out above, some large enterprises
will find it more economical to act as self-insurers) or where the enterprise is unable to pass
the extra costs on wholly In the form of higher charges, e.g., because competition Is too fierce,
there will still be a considerable degree of loss distribution. But in this case the cost Instead of
Being distributed wholly or principally amongst the consumers of the company's products,
may be distributed amongst those who, In a commercial sense, constitute the enterprise Itself,
l.e, the shareholders and staff and employees of the enterprise. Shareholders may receive a
slightly lower dividend and employees may receive a smaller wage Increase. In practice, of
course, these two methods of distribution will both occur, and It will scarcely be possible to
allocate part of the cost, even notionally, to one class rather than the other. Inevitably, so many
factors will enter into management decisions as to the proper price at which to sell the prod
ucts of the company, that It will be impossible to Isolate the (relatively minor) cost arising from
Insurance against tort liabilities. It Is safe to say, therefore, that In practice these costs will be
distributed both Internally and externally in the great majority of cases...
But acknowledging the truth of this [that the selection of one form of loss distribution mech
anism over another Involves value judgments], It seems that In general the policy of placing
the liability for the torts of servants on their employers Is broadly a sound one. It is sound
simply because, by and large, It Is the most convenient and efficient way of ensuring that per
sons Injured In the course of business enterprises do not go uncompensated. Of course if all
workmen insured themselves against third-party risks, and if wages and salaries were slightly
Increased In order to enable workmen to do this, we could get on pretty well without vicari
ous liability at all. But this would not be so efficient or convenient a way of doing things simply
because It would Involve an enormous number of insurance policies Instead of relatively few,
with a consequent Increase in Insurance costs. Further, there would Inevitably be a number
of defaulters, even If such insurance were made compulsory by law— and this Itself would of
course cost money In enforcement.
Whether this is the most equitable way of distributing the risks created by business
enterprises Is a different and more difficult question which in the last resort depends on value
judgments...

810 V I C A R IO U S L IA B IL IT Y
Bazley v Curry (1999) 174 DLR (4th) 45 (Supreme Court of Canada)

The defendant, a non-profit organisation, operated two residential care facilities for the treat
ment of emotionally troubled children. As it acted in place of the children’s parents, it was
responsible for all aspects of life for the children it cared for, from general supervision to
intimate duties like bathing and tucking in at bedtime. Unknown to the defendant and without
carelessness on Its part, it hired a paedophile as an employee to work in one of its homes. It
was later discovered that the paedophile had abused some of the children, and an action was
brought against the defendant alleging it was vicariously liable for the damage caused to the
children as a result of the actions of the employee.
McLachlin J
Fleming [The Law of Torts (9th edn, 1998)1 has identified [the] policies lying at the heart of vicari
ous liability. In his view, two fundamental concerns underlie the imposition of vicarious liability:
(1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm.
While different formulations of the policy interests at stake may be made (for example, loss
Internalization is a hybrid of the two), I believe that these two ideas usefully embrace the main
policy considerations that have been advanced.
First and foremost is the concern to provide a just and practical remedy to people who suffer
as a consequence of wrongs perpetrated by ah employee. Fleming expresses this succinctly
(at p. 410): 'a person who employs others to advance his own economic Interest should in
fairness be placed under a corresponding liability for losses incurred In the course of the enter
prise'. The Idea that the person who introduces a risk incurs a duty to those who may be injured
lies at the heart of tort law. As Cardozo CJ stated in Palsgrafv. Long Island Railway Co, 162 NE
99 (NY 1928), at 100, '[t]he risk reasonably to be perceived defines the duty to be obeyed, and
risk imports relation; it is risk to another or to others within the range of apprehension.' This
principle of fairness applies to the employment enterprise and hence to the issue of vicarious
liability. While charitable enterprises may not employ people to advance their economic inter
ests, other factors, discussed below, make it fair that they should bear the burden of providing
a just and practical remedy for wrongs perpetrated by their employees. This policy interest
embraces a number of subsidiary goals. The first Is the goal of effective compensation. 'One of
the most important social goals served by vicarious liability is victim compensation. Vicarious
liability improves the chances that the victim can recover the judgment from a solvent defend
ant' (B. Feldthusen, 'Vicarious Liability for Sexual Torts', In Torts Tomorrow (1998), 221, p. 224.)
Or to quote Fleming, the master is 'a more promising source of recompense than his servant
who Is aptto be a man of straw’ (p. 410).
Flowever, effective compensation must also be fair, in the sense that it must seem just to
place liability for the wrong on the employer. Vicarious liability is arguably fair in this sense. The
employer puts In the community an enterprise which carries with it certain risks. When those
risks materialize and cause injury to a member of the public despite the employer’s reasonable
efforts, It is fair that the person or organization that creates the enterprise and hence the risk
should bear the loss. This accords with the notion that it is right and just that the person who
creates a risk bears the loss when the risk ripens into harm. While the fairness of this propos
ition is capable of standing alone, it is buttressed by the fact that the employer is ofte'n in the
best position to spread the losses through mechanisms like insurance and higher prices, thus
minimizing the dislocative effect of the tort within society. 'Vicarious liability has the broader
function of transferring to the enterprise itself the risks created by the activity performed by
its agents' (London Drugs, per La Forest J., at 339).
The second major policy consideration underlying vicarious liability is deterrence of future
harm. Fixing the employer with responsibility for the employee's wrongful act, even where the

V IC A R IO U S L IA B IL IT Y 811
employer is not negligent, may have a deterrent effect. Employers are often in a position to
reduce accidents and intentional wrongs by efficient organization and supervision. Failure to
take such measures may not suffice to establish a case of tortious negligence directly against
the employer. Perhaps the harm cannot be shown to have been foreseeable under negligence
law. Perhaps the employer can avail Itself of the defence of compliance with the industry stand
ard. Or perhaps the employer, while complying with the standard of reasonable care, was not
as scrupulously diligent as it might feasibly have been. As Wilkinson J. explained in the compan
ion appeal'strial judgment:
If the scourge of sexual predation is to be stamped out, or at least controlled, there must
be powerful motivation acting upon those who control institutions engaged in the care,
protection and nurturing of children. That motivation will notin my view be sufficiently sup
plied by the likelihood of liability in negligence. In many cases evidence will be lacking or
have long since disappeared. The proof of appropriate standards is a difficult and uneven
matter.
I agree. Beyond the narrow band of employer conduct that attracts direct liability in negligence
lies a vast area where imaginative and efficient administration and supervision can reduce the
risk that the employer has introduced Into the community. Holding the employer vicariously
liable for the wrongs of its employee may encourage the employer to take such steps, and
hence, reduce the risk of future harm. A related consideration raised by Fleming is that by hold
ing the employer liable, 'the law furnishes an incentive to discipline servants guilty of wrong
doing' (p. 410).
The policy grounds supporting the imposition of vicarious liability— fair compensation and
deterrence— are related. The policy consideration of deterrence is linked to the policy consid
eration of fair compensation based on the employer’s introduction or enhancement of a risk.
The introduction of the enterprise into the community with its attendant risk, in turn, implies
the possibility of managing the risk to minimize the costs of the harm that may flow from it.
Policy considerations relating to the fair allocation of loss to risk-creating enterprises and the
deterrence of harms tend to support the imposition of vicarious liability on employers. But, as
Fleming notes, there often exists a countervailing concern. At one time the law held masters
responsible for all wrongs committed by servants. Later, that policy was abandoned as too
harsh in a complex commercial society where masters might not be in a position to supervise
their servants closely. Servants may commit acts, even on working premises and during work
ing hours, which are so unconnected with the employment that it would seem unreasonable to
fix an employer with responsibility for them. For example, if a man assaults his wife's lover (who
coincidentally happens to be a co-worker) in the employees' lounge at work, few would argue
that the employer should be held responsible. Similarly, an employer would not be liable for the
harm caused by a security guard who decides to commit arson for his or her own amusement:
see, e.g., Plains Engineering Ltd v Barnes Security Services Ltd (1987) 43 CCLT 129 (Alta. QB).
On further analysis, however, this apparently negative policy consideration of when liability
would be appropriate is revealed as nothing more than the absence of the twin policies of fair
compensation and deterrence that justify vicarious liability. A wrong that is only coincidentally
linked to the activity of the employer and duties of the employee cannot justify the Imposition
of vicarious liability on the employer. To impose vicarious liability on the employer for such a
wrong does not respond to common sense notions of fairness. Nor does it serve to deter future
harms. Because the wrong is essentially independent of the employment situation, there is
little the employer could have done to prevent it. Where vicarious liability is not closely and
materially related to a risk introduced or enhanced by the employer, it serves no deterrent
purpose, and relegates the employer to the status of an involuntary insurer. I conclude that a

meaningful articulation of when vicarious liability should follow in new situations ought to be
animated by the twin policy goals of fair compensation and deterrence that underlie the doc
trine, rather than by artificial or semantic distinctions.
CO M M EN TARY
Although the matter is not free from doubt, the better view today is that the employer’s
liability for the tort of an employee is truly vicarious and does not rest on any primary liabil
ity (see below; Atiyah, above, p. 10; Winfield & Jolowicz, para. 20-1; Salmond & Heuston,
pp. 431-4). An employer may have a primary liability in respect of a non-delegable duty, but,
as the current editor of Winfield & Jolowicz, para. 20-1, points out, that would be so irre
spective of whether there was any employer-employee relationship present on the facts. If
this was the basis of the employer’s liability there would be no point in considering whether
there was an employer-employee relationship but, as this is an essential element of estab
lishing vicarious liability, this must be because a different liability attaches to the employer
because of this relationship.
Some of the traditional reasons in support of vicarious liability are also listed by Atiyah
in his book: (1) control of the employee by th'e employer; (2) as the employer benefits from
the employee’s work the employer should also bear any burdens from that work; and (3) the
employer has the choice of choosing the employee. These three, along with other possible
justifications, are rejected in favour of the economic rationale for vicarious liability set out
in the extract above. Glanville Williams (above) described this form of loss distribution as
a form of social insurance and argued it was the most persuasive justification for vicarious
liability, and the one that best fitted the existing law (in 1957). Whilst this argument also
appealed to the Canadian Supreme Court in Bazley v Curry, another ground—deterrence—
was also thought to justify the doctrine. As the employer creates a risk by conducting his
enterprise and employing the employee, vicarious liability promotes conduct which minim
ises these risks. Of course, it might be argued that this is exactly what the law of negligence
does, but the Supreme Court thought that the requirement to exercise reasonable care may
not provide the desired level of risk management. But not every risk which manifests itself
makes the employer liable; hence McLachlin J’s exclusion of the assault at work. As Giliker
(2002) 65 MLR 269 at 278 argues: ‘More importantly, by adopting a test of risk, liability
may be justified in terms of the level of risk created by the tortfeasor’s employment’. Thus,
although there was some risk that an employee might assault his wife’s lover, it was not
such as to make it socially desirable that the loss to the wife’s lover should be imposed on
the employer and spread through insurance. Of course, the level of risk which justifies the
intervention of vicarious liability will vary, and to that extent it may be considered as sim
ply another example of Professor Atiyah’s observation that the equity of imposing vicarious
liability lies in value judgements. Although the explicit policy-based approach to vicarious
liability applied in Bazley has not been adopted in England, it is clear from the decision of
the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 (extracted at p. 835, below) that
the rationales for the doctrine set out in Bazley are accepted as applicable in English courts.
(See also Brown v Robinson [2004] UKPC 56, where the Privy Council held that, although
the risk created by the employment might be the policy reason underlying vicarious liability,
it did not constitute the criterion for deciding questions of vicarious liability.)

ii. The Employer-Employee Relationship

As noted above, a pre-requisite of vicarious liability is an employer-employee relationship
between the party committing the wrong and the party who is alleged to be liable for that
wrong. The question whether a person is employed under a contract of service (employee)
or a contract for services (independent contractor) has to be decided in many contexts, and
most of the authorities cited below are not concerned with the question of vicarious liabil
ity. Whether the employer-employee relationship is an absolute (if found to exist for one
purpose it exists for all) or is relative is not entirely clear, but the latter view is preferable.
There seems no reason why the same policy concerns that underlie decisions over whether a
person is an employee for tax or social security purposes should apply to whether that per
son’s tort should render another vicariously liable for it, though the cases in one area may
no doubt serve as a guide in another. With that rider in mind, the student should look to the
following cases for guidance.
Market Investigations v Minister of Social Security [1969] 2 QB 173

The issue for the court was whether, for the purposes of assessing national insurance contribu
tions, a person employed on a series of short-term contracts by a company to carry out inter
views was employed under contracts of service or contracts for services. The Department
had held that she was an employee. The contracts provided that, in consideration for a fixed
remuneration, the person would provide their own work and skill in the performance of a ser
vice for the company. The company could specify who was to be interviewed, the questions to
be asked, the order in which questions should be asked and recorded, how answers were to
be recorded and how the person should probe for answers. The person could be required to
attend at the company’s office for a short period to see a supervisor. Within the period speci
fied for completion of a survey, however, the person was normally free to choose when to work,
could undertake similar work for other organisations, and could not be moved by the company
from the area in which the person had agreed to work. When working in the field the supervisor
would have no means of getting in touch with the person, and the company's officers were of
the opinion that the person could not be dismissed in the middle of a survey. No provision was
made in the agreements for time off, sick pay or holidays.
Cooke J
The authorities on the distinction between a contract of service and a contract for services have
been extensively reviewed in a number of recent cases, and in particular I refer to the judgment
of Mocatta J in Whittaker v Minister of Pensions and National Insurance [1967] 1 QB 156, and
the judgment of MacKenna J In Ready Mixed Concrete (South East) v Minister of Pensions and
National Insurance [1968] 2 QB 497. With these and other recent decisions before me, I do not
myself propose to embark on a lengthy review of the authorities. I begin by pointing out that
the first condition which must be fulfilled in order that a contract may be classified as a contract
of service is that stated by MacKenna J In the Ready Mixed Concrete case, namely that A agrees
that, In consideration of some form of remuneration, he will provide his own work and skill In
the performance of some service for B. The fact that this condition is fulfilled is not, however,
sufficient. Further tests must be applied to determine whether the nature and provisions of the
contract as a whole are consistent or inconsistent with its being a contract of service.

I think it is fair to say that there was at one time a school of thought according to which the
extent and degree of the control which B was entitled to exercise over A in the performance
of the work would be a decisive factor. However, it has for long been apparent that an analysis
of the extent and degree of such control is not in itself decisive. Thus in Collins v Hertfordshire
County Council [1947) KB 598 it had been suggested that the distinguishing feature of a con'
tract of service is that the master can not only order or require what is to be done but also how it
shall be done. The inadequacy of this test was pointed out by Somervell LJ in Cassidy v Ministry
of Health [1951] 2 KB 343 at 352 when he referred to the case of a certified master of a ship. The
master may be employed by the owners under what is clearly a contract of service, and yet
the owners have no power to tell him how to navigate his ship. As Lord Parker CJ pointed out in
Morren v Swinton and Pendiebury Borough Council [1965] 1 WLR 576 at 582, when one is deal
ing with a professional man, or a man of some particular skill and experience, there can be no
question of an employer telling him how to do the work; therefore the absence of control and
direction in that sense can be of little, if any, use as a test.
Cases such as Morren's case ([1965] 1 WLR 576) illustrate how a contract of service may exist
even though the control does not extend to prescribing how the work shall be done. On the
other hand, there may be cases when one who engages another to do work may reserve to
himself full control over how the work is to be done, but nevertheless the contract Is not a con
tract of service. A good example Is Queensland Stations Pty v Federal Comr of Taxation (1945),
70 CLR 539 at p 552, the 'drover' case, when Dixon J said:
In considering the facts It is a mistake to treat as decisive a reservation of control over

the manner in which the droving is performed and the cattle are handled. For instance,
in the present case the circumstance that the drover agrees to obey and carry out all law
ful instructions cannot outweigh the countervailing considerations which are found in
the employment by him of servants of his own, the provision of horses, equipment, plant,
rations, and a remuneration at a rate per head delivered.
If control is not a decisive test, what then are the other considerations which are relevant? No
comprehensive answer has been given to this question, but assistance Is to be found In a num
ber of cases.
In Montreal Locomotive Works v Montreal and A -G for Canada [1947] 1 DLR 161 at p 169, Lord
Wright said this:
In earlier cases a single test, such as the presence or absence of control, was often relied
on to determine whether the case was one of master and servant, mostly in order to
decide issues of tortious liability on the part of the master or superior. In the more complex
conditions of modern industry, more complicated tests have often to be applied. It has
been suggested that a fourfold test would In some cases be more appropriate, a complex
involving (i) control; (li) ownership of the tools; (Hi) chance of profit; (iv) risk of loss. Control
in itself is not always conclusive. Thus the master of a chartered vessel is generally the
employee of the shipowner though the charterer can direct the employment of the vessel.
Again the law often limits the employer’s right to interfere with the employee’s conduct, as
also do trade union regulations. In many cases the question can only be settled by exam
ining the whole of the various elements which constitute the relationship between the
parties. In this way it is in some cases possible to decide the issue by raising as the crucial
question whose business is it, or In other words by asking whether the party is carrying on
the business, In the sense of carrying it on for himself or on his own behalf and not merely
fora superior.

In Bank voorHandelen Scheepvaart NV vSlatford [1953] 1 QB 248 at p. 295, Denning LJ said:
... the test of being a servant does not rest nowadays on submission to orders. It depends
on whether the person is part and parcel of the organisation....
In US v Silk (1946) 331 US 704 the question was whether certain men were 'employees’ within
the meaning of that word in the Social Security Act 1935. The judges of the [United States]
Supreme Court decided that the test to be applied was not 'power of control, whether exer
cised or not, over the manner of performing service to the undertaking’, but whether the men
were employees 'as a matter of economic reality’.
The observations of Lord Wright, of Denning LJ and of the judges of the Supreme Court
in the USA suggest that the fundamental test to be applied is this: 'Is the person who has
engaged himself to perform these services performing them as a person in business on his
own account?'. If the answer to that question is 'yes’, then the contract is a contract for ser
vices. If the answer is 'no’ then the contract is a contract of service. No exhaustive list has been
compiled and perhaps no exhaustive list can be compiled of 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. The most that can be said is that
control will no doubt always have to be considered, although it can no longer be regarded as
the sole determining factor; and that factors, which may be of importance, are such matters
as whether the man performing the services provides his own equipment, whether he hires
his own helpers, what degree of financial risk he takes, what degree of responsibility for invest
ment and management he has, and whether and how far he has anopportunity of profiting
from sound management in the performance of his task. The application of the general test
may be easier in a case where the person who engages himself to perform the services does so
in the course of an already established business of his own; but this factor is not decisive, and a
jaerson who engages himself to perform services for another may well be an independent con
tractor even though he has not entered into the contract in the course of an existing business
carried on by him ...
[Cooke J considered the contract in question and continued:]
It is apparent that the control which the company had the right to exercise in this case was very
extensive indeed. It was in my view so extensive as to be entirely consistent with Mrs Irving’s
being employed under a contract of service. The fact that Mrs Irving had a limited discretion
when she should do the work was not in my view inconsistent with the existence of a con
tract of service. For examples of a servant having such a discretion, see Hobbs v Royal Arsenal
Co-operative Society Ltd (1930) 23 BWCC 254 and Amalgamated Engineering Union v Minister
of Pensions and National Insurance [1963] 1 WLR 441. Nor is there anything inconsistent with
the existence of a contract of service in the fact that Mrs Irving was free to work for others
during the relevant period. It is by no means a necessary incident of a contract of service that
the servant is prohibited from serving any other employer. Again, there is nothing inconsistent
with the existence of a contract of service in the master having no right to alter the place or
area within which the servant has agreed to work. So far as concerns practical limitations on a
master's power to give instructions to his servant, there must be many cases when such prac
tical limitations exist. For example, a chauffeur in the service of a car hire company may, in the
absence of radio communication, be out of reach of instructions for long periods...
[Cooke J went on to hold that there were no provisions of the contract, which, when considered
as a whole, were inconsistent with a contract of service.]
Appeal dismissed.

R. K idner, ‘V ic a rio u s L ia b ility: For W h o m S h o u ld th e “ E m p lo ye r”

be L ia b le ? ’ (1995) 15 LS 47
It is suggested that the following in some mix or other are appropriate for the question [who is
an employer] in so far as it relates to vicarious liability.
(1) Control by the 'employer' of the 'employee'. Traditionally this has meantasking whether
the employer can control not only what is done but also how it is done. This makes little sense
and the variant of asking whether the employer has the legal right to control is merely circu
lar. Rather this factor should look at the degree of managerial control which Is exercised over
the activity and this may depend on how far a person is integrated into the organisation of
the enterprise. At the one end of the spectrum a contractor will merely be asked to achieve
an end result, or more ambiguously the specification of that end result may be so detailed as
to amount to detailed control over how that result is to be achieved. At the other end of the
spectrum is the person who Is actually controlled in every detail of how things are to be done.
Another way to look at the control test is to examine the degree to which the 'employee' Is
accountable to the employer: in other words to what extent is he subject to the managerial
procedures of the employer In relation to such matters as quality of work, performance,
productivity etc?
(2) Control by the contractor of himself. This is not about the Mr Newall who took no orders
from anybody [see Mersey Docks end Harbour Board v Coggins & Griffith [1947] AC 1] but is
rather an element of the entrepreneur test and involves looking at how the contractor arranges
his work, his use of assets, his payment etc.
(3) The organisation test (in the first sense of how central the activity is to the enterprise).
This involves the question, how farthe activity is a central part of the employer's business from
the point of view of the objectives of that business. This element flows from the need to estab
lish who It Is that Is engaging in the activity and the more relevant the activity is to the funda
mental objectives of the business the more appropriate it Is to apply the risk to the business.
(4) The integration test (i.e. organisation test in the second sense of whether the activity Is
integrated Into the organisational structure of the enterprise). This also looks at the traditional
test of whether the function is being provided for the business or by the business and Is also
part of the entrepreneur test for It asks whether the activity is part of the enterprise's organ
isation or of some other organisation. A service may be absolutely essential to the business or
wholly peripheral to it, but If it is being provided by what is In effect a separate business it would
be inappropriate to apply the riskto the enterprise. It Is a factor of both who Is engaging In the
activity and also who stands to gain or lose from it.
(5) Is the person in business on his own account (the entrepreneur test)? This Is not really
a separate test as it Is Intimately Involved In the other four, but It needs to be highlighted so
that the burden of proof is right. For the purposes of vicarious liability a person should not be
regarded as an Independent contractor simply because according to the technical require
ments of employment law he is not an employee. Rather it needs to be established that he Is
actually behaving as an entrepreneur and Is taking the appropriate risks and has the possibility
of resulting profits. Thus even if a person's activity is peripheral to the enterprise and even if
he Is not for managerial purposes regarded as part of the organisation, a person could still be
regarded as an employee If it Is clear that In relation to that business he is not acting as Sn entre
preneur. Agency workers would bean example.
The function of this article has been to argue that those for whom an 'employer’ should
be vicariously liable should not be restricted by recent approaches in employment law and
tort law needs to be able to take account of new forms of employment. The point Is not that
the relationship between employer and employee should be defined totally differently in the

two areas of law, but that because of the objectives to be achieved the emphasis needs to
be different...
The change can only be achieved if it is admitted that the term ‘employee’ can have different
meanings for different purposes: however it is not being argued that vicarious liability should
jettison the concept of employment as the governing relationship, but rather that the core of
the concept should remain, subject to different interpretation and emphasis in light of different
objectives. In looking at these objectives vicarious liability should have greater regard for the
role of the ‘contractor’ within the organisation and less regard for the nature of the contrac
tual arrangements. The contract of employment rarely reflects what actually happens and tort
always looks more to what the parties do than to what they are entitled to d o ...
CO M M EN TA RY
In the early stages of the development of vicarious liability control’ by the employer was
the determining test, but as Kahn-Freud pointed out in 1951 (‘Servants and Independent-
Contractors’ (1951) 14 MLR 504):
This distinction was based upon the social conditions of an earlier age: It assumed that the employer
of labour was able to direct and instruct the labourer as to the technical methods he should use In
performing his work__ The technical and economic developments of ajl industrial societies have
nullified these assumptions To say of the captain of a ship, the pilot of an aeroplane, the driver of
a railway engine, of a motor vehicle, of a crane, that the employer 'controls’ the performance of the
work is unrealistic and almost grotesque. If in such a case the employee relied on the employer's
instructions ‘how to do his work’ he would be breaking his contract and possibly be liable to sum
mary dismissal for having misrepresented his skill....
In the case extracted above, Cooke J emphasised that control is now only one of the factors
that the courts look to in deciding whether a relationship of employer-employee existed,
and considered some of the other factors that might assist in the determination. In Lee Ting
Sang v Chung Chi-Keung [1990] 2 AC 374, the Privy Council agreed with the Court of Appeal
of Hong Kong that these had ‘never been better put than by Cooke J’.
Application of Cooke J ’s Factors In Practice
The modern approach looks to the actual relationship between the parties rather than to
form. A good example of the relevant factors being weighed is Hall (Inspector o f Taxes) v
Lorimer [1994] 1 All ER 250, a case concerned with the appropriate tax schedule for a tax
payer. The taxpayer was trained and employed as a vision mixer, a skilled editing job in
the television industry, and went ‘freelance’ in 1985. During 1985-9 he worked 800 days.
He hired no stafFbut did provide replacements to his employers if he was unavailable. All
work was carried out at the studios of the production company who employed him, and the
equipment was also provided by those companies. He did not contribute to the cost of pro
duction nor was he exposed to profits/loss made by the production company, but he could
lose money if a client of that company became insolvent or did not pay. He was assessed
for taxation purposes as an employee, but the Court of Appeal affirmed earlier judgments
overturning that assessment. Particular attention was paid to the fact that the risk of bad
debts and outstanding invoices was not usually associated with a contract of service. It was
also significant that the taxpayer had worked for a large number of separate employers for a
short period (usually one day).

818 V IC A R IO U S LIA BIL IT Y
This case can be constrasted with Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374. The
applicant was a stonemason who worked mainly for one subcontractor on short-term con
tracts. He was paid a piece-work rate (so much for finishing a job) or a daily rate. If he fin
ished early he assisted the subcontractor in sharpening tools. Although he sometimes
worked for others, he gave preference to the urgent work of the subcontractor, advising those
for whom he was working at that time to replace him. Allowing an appeal from the Court of
Appeal of Hong Kong, the Privy Council held him to be an employee. He provided no equip
ment, did not hire any helpers to assist him, had no responsibility for the management of the
job, and did not ‘price’ the job. He was simply told to turn up for work and was told what to
do (although, as a skilled worker, not how to do it). In short (at 384), ‘[t]he applicant ran no
risk whatever save that of being unable to find employment which is, of course, a risk faced
by casual employees who move from one job to another ...’
The Problem of the Temporary Employee— Dual Vicarious Liability?
What if an employee of one employer is hired to someone else? Which employer is vicari
ously liable for the torts of the employee? This issue was recently considered by the Court of
Appeal.
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd

[2006] QB 510
The claimant engaged contractors to install air conditioning on their property. These
contractors subcontracted ducting work to A Ltd and labour for this work was supplied to A
Ltd by B Ltd. The claimant’s property was damaged due to the negligence of one Darren Strang,
a fitter's mate supplied by B Ltd to A Ltd. At the time of the accident, Strang was working under
the supervision of a Mr Horsley, A Ltd’s foreman, and a Mr Megson, a fitter supplied by B Ltd.
The trial judge held that only B Ltd was vicariously liable for S's negligence. On appeal, the
Court of Appeal asked for submissions as to whether vicarious liability could extend to two
employers jointly.
May LJ
18 The relevant negligent act was Darren Strang crawling through the duct. This was a fool
ish mistake on the spur of the moment. I have said that a central question is: who was enti
tled, and perhaps in theory obliged, to give orders as to how the work should or should not be
done? Here there is no suggestion, on the facts found by the judge, that either Mr Horsley or
Mr Megson had any real opportunity to prevent Darren's momentary foolishness. The judge
specifically acquitted Mr Horsley of personal negligence: and we should proceed on the foot
ing that Mr Megson was not personally negligent either. Vicarious liability is liability Imposed
by a policy of the law upon a party who Is not personally at fault. So the core question on the
facts of this case is who was entitled, and in theory, if they had had the opportunity, obliged,
so to control Darren as to stop him crawling through the duct. In my judgment, the only sens
ible answer to that question In this case Is that both Mr Megson and Mr Horsley yyere enti
tled, and in theory obliged, to stop Darren’s foolishness. Mr Megson was the fitter in charge
of Darren. Mr Horsley was the foreman on the spot. They were both entitled and obliged to
control Darren’s work, including the act which was his negligence. The second defendants,
through Mr Horsley, would, I think, have qualified for vicarious liability, if it had been Mr Megson
who foolishly crawled through the duct. It makes no difference to a sensible analysis that it was
Darren who was negligent, and that Mr Megson in some respects was interposed. But neither

V I C A R IO U S L IA B IL IT Y 819
is there any good sense in saying that, because Mr Horsley was relevantly entitled to control
Darren, Mr Megson was not: and vice versa...
Rix LJ
76 In my judgment, there Is no doubt that there has been a long standing assumption that
dual vicarious liability is not possible, and in such a situation it is necessary to pause carefully
to consider the weight of that tradition. However, in truth, the issue has never been properly
considered. There appears to be a number of possible strands to the assumption... the formal
principle that a servant cannot have two masters; andthepolicyagainst multiplicity of actions.
As for the first, even if it be granted that an employee cannot have contracts of employment
with two separate employers at the same time and for the same period and purposes— and
yet it seems plain that a person can (a) have two jobs with separate employers at the same
time, provided they are compatible with one another; or (b) be employed by a consortium of
several employers acting jointly— nevertheless that does not prevent the employee of a gen
eral employer being lent to a temporary employer. As was so clearly exposed In Denham's
case [Denham v Midland Employers' Mutual Assurance Ltd [1955] 2 QB437], it Is an Inaccurate
metaphor to say that the employment or the employee has been transferred: it is rather that
the services of the employee have been lent or hired out, or borrowed or bought in, in circum
stances where the temporary employer becomes responsible, under the doctrine of vicarious
liability (respondeat superior), for the employee's negligence, and does so even though the for
mal contract or relationship of employment has not been transferred. Jh a t demonstrates that
the doctrine of vicarious liability may properly be Invoked against an employer who is not really,
In law, the employee's employer; and that the use of the expression “transfer” is potentially
misleading. As for the policy against multiplicity of actions: no doubt the law does not favour
unnecessary complexity which may lead to the suing of unnecessary defendants. But such a
policy, while It may inform the formulation of doctrine, cannot determine it; and, in any event,
the history of this jurisprudence has demonstrated clearly that it is not safe for a claimant to
assume that he can sue one employer only. Whereas the Mersey Docks approach may have
discouraged the suing of the temporary employer save In exceptional situations, the problem
remains a live one.
77 In my judgment, if consideration is given to the function and purposes of the doctrine
of vicarious liability, then the possibility of dual responsibility provides a coherent solution to
the problem of the borrowed employee. Both employers are using the employee for the pur
poses of their business. Both have a general responsibility to select their personnel with care
and to encourage and control the careful execution of their employees' duties, and both fall
within the practical policy of the law which looks In general to the employer to organise his
affairs In such a way as to make It fair, just and convenient for him to bear the risk of his employ
ees' negligence. I am here using the expression "employee" In the extended sense used In the
authorities relating to the borrowed employee. The functional basis of the doctrine of vicarious
liability has become increasingly clear over the years. The Civil Liability (Contribution) Act 1978
now provides a clear and fair statutory .basis for the assessment of contribution between the
two employers. In my judgment, the existence of the possibility of dual responsibility will be
fairer and will also enable cases to be settled more easily.
78 The remaining question Is to attempt to define the circumstances in which the liability
should be dual. It Is possible that where the right to control the method of performance of
the employee’s dutiesTies solely on the one side or the other, then the responsibility similarly
lies on the same side. That reflects the significance of Lord Esher MR's doctrine of entire and
absolute control. If so, then It will only be where the right of control Is shared that vicarious
liability can be dual. I would agree that the balance of authority is in favour of this solution. On

this basis, I agree with May LJ's analysis of the facts in this case as demonstrating a situation of
shared control. I would go further and say that It is a situation of shared control where It is just
for both employers to share a dual vicarious liability. The relevant employee, Darren, was both
part of the temporary employer's team, under the supervision of Mr Horsley, and part of the
general employer's small hired squad, under the supervision of its Mr Megson.
79 However, I am a little sceptical that the doctrine of dual vicarious liability is to be wholly
equated with the question of control. I can see that, where the assumption is that liability has
to fall wholly and solely on the one side or the other, then a test of sole right of control has
force to it. Even the Mersey Docks case [Mersey Docks and Harbour Board v Coggins & Griffith
(Liverpool) Ltd [1947] AC 1], however, does not make the control test wholly determinative.
Once, however, a doctrine of dual responsibility becomes possible, I am less clear that either
the existence of sole right of control or the existence of something less than entire and abso
lute control necessarily either excludes or respectively invokes the doctrine. Even in the estab
lishment of a formal employer/employee relationship, the right of control has not retained the
critical significance it once did. I would prefer to say that I anticipate that subsequent cases
may, in various factual circumstances, refine the circumstances in which dual vicarious liability
may be Imposed. I would hazard, however, the view that what one Is looking for Is a situation
where the employee in question, at any rate for relevant purposes, is so much a part of the
work, business or organisation of both employers that it Is just to make both employers answer
for his negligence. What has to be recalled is that the vicarious liability in question is one which
involves no fault on the part of the employer. It Is a doctrine designed for the sake of the claim
ant imposing a liability incurred without fault because the employer is treated by the law as
picking up the burden of an organisational or business relationship which he has undertaken
for his own benefit.
80 One Is looking therefore for practical and structural considerations. Is the employee,
in context, still recognisable as the employee of his general employer and, in addition, to be
treated as though he was the employee of the temporary employer as well? Thus in the Mersey
Docks situation, it is tempting to think that liability will not be shared: the employee is used,
for a limited time, in his general employer's own sphere of operations, operating his general
employer’s crane, exercising his own discretion as a crane driver. Even if the right of control
were to some extent shared, as in practice it is almost bound to be, one would hesitate to say
that It Is a case for dual vicarious liability. One could contrast the situation where the employee
Is contracted-out labour: he is selected and possibly trained by his general employer, hired out
by that employer as an integral part of his business, but employed at the temporary employ
er's site or his customer’s site, using the temporary employer's equipment, and subject to the
temporary employer's directions. In such a situation, responsibility Is likely to be shared. A
third situation, where an employee is seconded for a substantial period of time to the tempor
ary employer, to perform a role embedded In that employer's organisation, is likely to result in
the sole responsibility of that employer...
CO M M EN TARY
In reaching its decision that dual vicarious liability is possible the Court of Appeal consid
ered that no previous binding authority prevented such a conclusion. One relevant case was
Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Ltd and McFarlane [1947]
AC 1, where, by and large applying the control test, the House of Lords held that the tempor
ary employer of a lent crane driver (with crane) remained the employee of the permanent
(or general) employer and that there was a heavy onus on the latter to prove that the lent

employee had become the employee of the hirer. Both May and Rix IJJ thought that in this
case—as in the others they considered—it had been assumed rather than decided that dual
vicarious liability was not possible. Their Lordships also agreed that, on its facts, Mersey
Docks was not a case where dual vicarious liability could have been imposed; the control
exercised by the permanent employer was not sufficiently altered by the terms on which the
employee was lent to change the identity of the employer for the purposes of vicarious
liability.
How frequently is dual vicarious liability likely to be found? May LJ (at [46]) indicates
that in most cases ‘a proper application’ of the Mersey Docks approach would not yield joint
control, whilst Rix LJ’s approach seems broader, allowing greater scope for dual vicarious
liability. Stevens (2006) 122 LQR 201,204, argues that the level of control necessary to attach
liability for the torts or acts of another is low, so that ‘the possibility of dual liability for both
the regular and temporary employer becomes the logical solution in the majority of cases’.
An alternative ground for determining dual vicarious liability appealed to the Supreme
Court of Canada: that the employers were partners (Blackwater v Plint [2005] 3 SCR 3).
However, as Neyers (2006) 122 LQR 195,198 points out, there are difficulties in limiting dual
vicarious liability to partners: the Supreme Court of Canada clearly saw the partnership
relationship as giving rise to joint control but there seems no reason why non-partnership
relationships should be excluded from attracting dual vicarious liability if the key question
is control.
If dual vicarious liability exists, what should the division of responsibility be between
the two employers in contribution proceedings? In Viasystems, the Court of Appeal held
that, if both employers were not personally at fault, the division could only be 50/50 but the
Supreme Court of Canada in Plint thought differently, apportioning responsibility 75/25
between the two employers. Can this be the correct approach? Do you agree with Neyers
(2006) 122 LQR 195,199, that the effect of Plint is that ‘someone who was held liable without
fault, could be more at fault than another person who was held liable without fault’?
One area where dual vicarious liability might well be a satisfactory solution is in deter
mining the employer of agency workers. Such workers usually have an express contract
only with an employment agency, the agency having a separate contract with the end-user
for whom the agency agrees to supply labour. Frequently the contractual arrangements are
structured so as to avoid the result that the worker is the employee of either the agency or
the end-user. In Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1347, an action for unfair
dismissal, a majority of the Court of Appeal found it difficult to accept that the worker was
not the employee of anyone; Sedley LJ noted that the status of the worker affected not only
employment rights and that for the purposes of a vicarious liability claim the employee
would be regarded as employed by the end-user, especially if the worker had worked for the
end-user for some time. A preferable solution in these cases may now be to find that both the
agency and end-user have dual vicarious liability. Of course, much will depend on the indi
vidual circumstances and it is clear that the mere fact that labour has been supplied through
an agency will not, of itself, leave the agency facing dual vicarious liability (see Hawley v
Luminar Leisure Ltd [2006] IRLR 817).
Whether or not a hired employee changes employer for the purposes of determining who
is vicariously liable does not affect the ability of the temporary and permanent employers, or
joint employers, to determine between themselves who shall be liable for any negligence of
the hired worker to a third party injured by that negligence (Arthur White (Contractors) Ltd
v Tarmac Civil Engineering [1967] 1 WLR 1508; Thompson v T. Lohan (Plant Hire) Ltd [1987]
1 WLR 649). However, in Phillips Products v Hyland [1987] 1 WLR 659, the plaintiff was the

temporary employer whose property had been damaged by the negligence of the employee.
When sued the defendant permanent employer attempted to raise as a defence a clause in the
contract with the plaintiff providing that the plaintiff would be responsible for any negli
gence of the hired employee. The Court of Appeal held the clause fell foul of the Unfair
Contract Terms Act 1977 as an attempt to restrict liability. This case was distinguished in
Thompson, above, because in Thompson a liability had already been established (to the wife
of the person killed by the employee’s negligence) so the clause could not be said to restrict
or exclude liability, unlike in Phillips, where its effect was to deprive the plaintiff of a claim it
would otherwise have had against the defendant.
Should the status of the worker be determined by the parties’ own description of their rela
tionship? The Court of Appeal in Dacas—where the parties stipulated that the worker was
not employed under a contract of service—noted the well-established rule that this was only
one factor to be considered: it was not determinative. In Ferguson v John Dawson & Partners
(Contractors) Ltd [1976] 1 WLR 1213, all three members of the Court of Appeal agreed that
the intention of the parties was a relevant but not conclusive factor, but a majority (Megaw and
Browne LJJ) would have gone further, Megaw LJ stating (obiter): ‘I find difficulty in accept
ing that the parties, by a mere expression of intention as to what the legal relationship should
be, can in any way influence the conclusion of law as to what the relationship is.’ In that case
builders who were employed as ‘labour only sub-contractors’ were held to be employees for
the purpose of the Construction (Working Places) Regulations 1966 because the remainder of
the terms of employment suggested they were employees. Lawton LJ (dissenti ng) held that:
I can see no reason why in law a man cannot sell his labour without becoming another man's servant
even though he is willing to accept control as to how, when and where he shall work. If he makes
his Intention not to be a servant sufficiently clear, the implications which would normally arise from
implied terms do not override the prime object of the bargain.
Do you agree that the parties’ intention should be given more of a role in determining the
relationship between the parties?
An Alternative Approach?
It is clear that modern employment practices may make the classification of a worker as an
employee or an independent contractor a difficult, and perhaps artificial, task. In Dacas v
Brook Street Bureau (UK) Ltd [2004] ICR 1347 Mummery LJ noted that as yet ‘unclassified’
contracts of employment may best describe the relationship between the parties, such as a
‘semi-dependent worker’s contract’ or ‘quasi dependent worker’s contract’ although how
these classifications might relate to vicarious liability is unclear. An alternative approach
to solving these difficulties was advocated in the Australian case of Hollis v Vabu Pty Ltd
(2001) 207 CLR 21, where the plaintiff was injured when he was hit by a cycle courier wearing
the distinctive apparel of the defendant (‘Crisis Couriers’). Although the plaintiff could not
identify the individual courier who hit him, he sued the defendant on the basis that it was
vicariously liable for the negligence of the courier. The defendant argued that the courier was
an independent contractor, a finding which had been made by the New South Wales Court
of Appeal in relation to questions of taxation. The majority of the High Court <5f Australia
held that, contrary to the earlier decision, on a true construction of the contract, the couriers
were employees of the defendant and hence it was vicariously liable. However, although he
agreed with the result, McHugh J adopted a different approach:
It is true that the couriers employed by Vabu are neither employees nor independent contractors In
the strict sense. But there Is no reason in policy for upholding the strict classification of employees

and non-employees in the law of vicarious liability and depriving Mr Hollis of compensation.
Rather than expanding the definition of employee or accepting the employee/lndependent
contractor dichotomy, the preferable course is to hold that employers can be vicariously liable for
the tortious conduct of agents who are neither employees nor Independent contractors. As
McLachlln J pointed out in BazleyvCurry' a meaningful articulation of when vicarious liability should
follow In new situations ought to be animated by the twin policy goals of fair compensation and
deterrence that underlie the doctrine, rather than by artificial or semantic distinctions'. To hold that
an employer Is vicariously liable for the conduct of a worker who Is not an employee or independent
contractor does not affect their relationship in other areas of the law or their freedom to contract
between themselves or to arrange their business affairs. And it has the great advantage of ensuring
that the doctrine of vicarious liability remains relevant in a world of rapidly changing work
practices.
The doctrinal explanation for this new approach to making the employer liable was to be
found not in describing the relationship as one of employer/employee but in the concept of
agency. Quoting from his earlier judgment in Scott v Davis (2000) 204 CLR 333, McHugh J
argued that a principal was liable for the wrongful acts of a person who was acting on the
principal’s behalf as a representative and not as an independent principal. Applying this
to the facts, the courier could be described as an agent, thus making the principal liable,
because it was fair to hold Vabu liable (the courier was on the business’ and was wearing a
Crisis Couriers uniform, a requirement that, from the terms of its contract with its couriers,
it clearly considered important) and because the imposition of liability would deter Vabu
from ignoring the safety obligations of its couriers.
Although McHugh J’s approach remains a minority view, even in Australia (see Sweeney v
Boylan Nominees Pty Ltd (2006) 80 ALJR 900), do you think this a better approach to deter
mining when an employer is liable for the acts of one he employs?
hi . The Course of Employment

An employer is not liable for every act of an employee; there must be some connection
between the act and the purpose for which the employee is employed. As employees are
not employed to perform their duties in an unlawful manner, it could be argued that a tor
tious act is never in the course of employment. Such an approach would make the doctrine
redundant for, as noted below, an employer is liable as a primary tortfeasor if the wrong
ful act has been expressly authorised. Vicarious liability came to depend on the implied
authority of the employee (see below), and the employer’s liability on whether the act of the
employee was within that authority, or in the modern form, within the course or scope of
employment. Thus the key question was thought to be whether the act of the employee was
a wrongful or unauthorised mode of doing some act authorised by the master (Salmond &
Heuston, p. 443). However, the House of Lords in Lister v Hesley Hall [2002] 1 AC 215 has
recently held that this is the wrong approach. Instead, the question that had to be answered
was whether the employee’s tort had a close connection with the employment. It has been
said that the change will lead to a different result in only a handful of cases (Hopkins [2001]
CLJ 458; cf. Glofchevski (2004) 12 Tort L Rev 18), and it is also the case that, at the margins,
it will 6e as difficult to distinguish between whether the tort bore a close connection with the
employment as it was to answer the question whether the tort was an unauthorised mode of

8 24 V I C A R IO U S L IA B IL IT Y
carrying out an authorised task. Nonetheless, the adoption of the close connection test has
been described as a genuine advance, at least in the context of intentional wrongdoing by an
employee (Cane (2000) 116 LQR 21 at 24). Accordingly, it must be remembered that most
of the decisions discussed below were decided by the application of a different test, but it is
probably the case that the same results would have been reached if the close connection test
had been applied. No matter what the appropriate legal principle may be, it must be recog
nised that many decisions have been influenced by the practical reality that, if the employer
was not found vicariously liable, the victim would be left with a claim against the (probably)
worthless employee, although since the introduction of widespread social security benefits
in the early part of this century and the National Health Service in 1948 the possibility of a
destitute victim without funds to pay either for his medical treatment or day-to-day living
expenses has receded. However, awards of tort damages are higher than benefits payable
under the social security system, and in areas where the employer will have insurance against
tort liabilities there remain practical benefits in seeking to establish vicarious liability.
1. Carelessness and the Motive for the Employees Act
Century Insurance Company Limited v Northern

Ireland Transport Board [1942] AC 509
The case arose out of a fire at a petrol station caused by a petrol delivery driver (Davison) throw
ing a lighted match onto the floor after using it to light a cigarette. The fire caused damage to
property. One issue for the House of Lords was whether, assuming the driver was an employee
of the delivery company, the negligent act of throwing the match to the ground was within the
course of employment.
Viscount Simon LC
On the second question, every judge who has had to consider the matter in Northern Ireland
agrees with the learned arbitrator in holding that Davison's careless act which caused the con
flagration and explosion was an act done in the course of his employment. Admittedly, he was
serving his master when he put the nozzle into the tank and turned on the tap. Admittedly,
he would be serving his master when he turned off the tap and withdrew the nozzle from the
tank. In the interval, spirit was flowing from the tanker to the tank, and this was the very deliv
ery which the respondents were required under their contract to effect. Davison’s duty was
to watch over the delivery of the spirit into the tank, to see that it did not overflow, and to turn
off the tap when the proper quantity had passed from the tanker. In circumstances like these,
'they also serve who only stand and wait’. He was presumably close to the apparatus, and his
negligence in starting smoking and in throwing away a lighted match at that moment is plainly
negligence in the discharge of the duties on which he was employed by the respondents. This
conclusion is reached on principle and on the evidence, and does not depend on finding a
decided case which closely resembles the present facts, but the decision of the English Court
of Appeal twenty years ago in Jefferson v Derbyshire Farmers Ltd [1921] 2 KB 281 provides a
very close parallel. As for the majority decision, nearly sixty years before that, of the Exchequer
Chamber in Williams v Jones (1865) 3 H&C 60 it may be possible to draw distinctions, as the
court in Jefferson's case sought to do, but this House is free to review the earlier decision,
and for my part I prefer the view expressed in that case by the minority, which consisted of

Blackburn and Mellor JJ. The second question must also be answered adversely to the appel
lants. I move that the appeal be dismissed with costs.
Lord Wright
On the other question, namely, whether Davison’s negligence was in the course of his employ
ment, all the decisions below have been against the appellants. I agree with them and need add
little. The act of a workman in lighting his pipe or cigarette is an act done for his own comfort
and convenience and, at least generally speaking, not for his employer's benefit, but that last
condition is no longer essential to fix liability on the employer: Lloyd v Grace, Smith & Co [1912]
AC 716. Nor Is such an act prima fade negligent. It is in itself both innocent and harmless. The
negligence is to be found by considering the time when and the circumstances in which the
match is struck and thrown down. The duty of the workman to his employer Is so to conduct
himself in doing his work as not negligently to cause damage either to the employer himself
or his property or to third persons or their property, and thus to impose the same liability on
the employer as if he had been doing the work himself and committed the negligent act. This
may seem too obvious as a matter of common sense to require either argument or authority.
I think what plausibility the contrary argument might seem to possess results from treating
the act of lighting the cigarette in abstraction from the circumstances as a separate act. This
was the line taken by the majority judgment In Williams v Jones, but Mellor and Blackburn JJ
dissented, rightly as I think. I agree also with the decision of the Court of Appeal in Jefferson
v Derbyshire Farmers Ltd [1921 ] 2 KB 281, which is in substance on theja'cts indistinguishable
from the present case. In my judgment the appeal should be dismissed.
Lord Porter agreed with Viscount Simon and Lord Wright.

Appeal dismissed.
CO M M EN TA RY
The importance of this decision lies in its treatment of what can be classed as ‘collateral’ acts
of negligence of an employee; the fact that the employee was doing an act for his own benefit,
and not necessarily the employer’s, was not fatal to a finding that the act was in the course of
employment. Earlier cases had suggested otherwise. In Williams v Jones (1865) 3 H & C 602,
159 ER 668, the Court of Exchequer Chamber held, by a majority, that the act of an employee
who dropped a lighted wood shaving in a shed (having used it to light a pipe), causing a fire
which damaged the shed, was not in the course of employment. This was so even though he
was making a signboard in the shed as part of his employment. Even if it was accepted that
the act committed in the shed was dangerous, this made it ‘more difficult to connect it with
the act of making the signboard, and less likely to have been in furtherance of the master’s
business’ (at 612; 672). The minority judgments of Blackburn and Mellor JJ looked to the
circumstances that made the act negligent, that is, that the employee was working in a shed
which contained inflammable materials in the course of his employment, and it was only in
that setting that the act was negligent; hence it was carried out in the course of employment.
A similar position had been reached in respect of the liability of principals for acts of their
agents: in Barwick v English Joint Stock Bank (1867) LR 2 Ex 259, the Court of Exchequer
Chamber held that a principal could only be liable for the act of an agent if it was done for the
principal’s benefit and was within the scope of his authority, but the former requirement was
rejected by the House of Lords in Lloyd v Grace, Smith & Co [1912] AC 716. When the same

question arose in the context of employees in the extracted case, both Lloyd v Grace, Smith &
Co and the minority judgments in Williams v Jones were preferred by the House of Lords.
The issue is now one of the link between the tortious act and the course of employment (or
scope of authority) rather than the motive with which the employee/agent committed the act
in question. In Kay v IT W Ltd [1968] 1 QB 140, the employee was employed to drive trucks
and small vans around his employer’s worksite. Whilst driving a fork-lift truck he found
the only entry to a warehouse where he wanted to go was blocked by a lorry not belonging
to his employer. Although he had no right to do so he attempted to move the lorry and as a
result of his negligence injured the plaintiff. The Court of Appeal held that the act was within
the scope of his employment, because he was attempting to return the fork-lift truck to the
defendant’s warehouse, which was within the scope of his employment, and his misconduct
was not so gross and extreme as to take his act outside the scope of his employment. This
can be contrasted with Mason v Essex County Council, unreported, CA Civil Division, 29
March 1988. The 16-year-old employee was employed to help lift some mattresses into a
van, and in an effort to assist his employer he attempted to drive the van to his employer’s
house, in doing which he negligently caused injury. This was held to be outside the scope of
employment; driving had nothing to do with his employment, even though it was done for
his employer’s benefit. What is the difference between the two cases?
However, the motive of the employee is pot entirely irrelevant. In General Engineering
Services Ltd v Kingston and St Andrew Corporation [1989] 1 WLR 69, the plaintiff’s property
was damaged by a fire. Local fire-fighters would normally have arrived at the property in
three and a half minutes after an emergency call, but, in furtherance of an industrial dispute
with their employer, the fire-fighters were on a ‘go-slow’ with the result that they arrived
seventeen minutes after the call. Concurring with the trial judge and the Court of Appeal of
Jamaica, the Privy Council held the fire-fighters’ employers were not vicariously liable for
the acts of the brigade. The ‘go-slow’ was in furtherance of an industrial dispute, not related
to their employer’s business, and this was the very negation of carrying out some act author
ised by the employer. Thus, whilst it is not a pre-requisite to vicarious liability that the act be
done to further the employer’s interest, the motive with which the act is done is relevant in
determining whether the act was within the employee’s course of employment.
Two apprentices (D and P) were attending a carpentry training course as part of their
employment. One part of the course required pairs of apprentices to work together on a
project. D and P were one pair and were nearing completion of their project when other
apprentices attending the course, who had finished their work earlier, came over to talk to
them. One of these, G, started digging a chisel into D and P’s project. To stop him P attempted
to grab the chisel, but as he was doing so G let go, with the result that P’s hand went over his
shoulder and the chisel struck D in the eye. Were either P, in attempting to stop G from dam
aging the project, or G, in engaging in horseplay with other apprentices, acting in the course
of their employment? (See Duffy v Thanet District Council (1983) 134 NLJ 680.)
2. Employee’s Use of Vehicles on Unauthorised Journey
Smith v Stages [1989] AC 928

An employee was employed by the employers, the second defendant, as a peripatetic laggerto
install Insulation at power stations. In August 1977 he was working on a power station In central

England when he was taken off that job and sent with another employee, the first defendant, to
carry out an urgent job on a power station In Wales. The two employees were paid eight hours’
pay for the travelling time to Wales and eight hours' pay for the journey back, as well as the
equivalent of the rail fare for the journey, although no stipulation was made as to the mode of
travel. The two employees travelled to Wales in the first defendant’s car and stayed a week In
Wales while working on the power station there. At the end of the job, after working for twenty-
four hours without a break in order to finish the job, they decided to drive straight back to the
Midlands. On the way back the car, driven by the first defendant, left the road and crashed
through a brick wall. The employee was seriously injured and he brought an action against the
first defendant, who was uninsured, and against the employers alleging that they were vicari
ously liable for the first defendant’s negligence since he had been acting in the course of his
employment while driving the two employees back to central England. The employee subse
quently died from unrelated causes and his widow continued the action on behalf of his estate.
The trial judge held that the accident had not occurred in the course of employment, but this
was reversed by the Court of Appeal.
Lord Goff
There are, however, circumstances in which, when a man is travelling to (or from) a place
where he is doing a job for his employer, he will be held to be acting in the course of his employ
ment__ So, if a man is employed to do jobs for his employer at various places during the day,
such as a man who goes from door to door canvassing for business, or who distributes goods
to customers, or who services equipment like washing machines or dishwashers, he will ordin
arily be held to be acting in the course of his employment when travelling from one destination
to another, and may also be held to do so when travelling from his home to his first destination
and home again after his last. Again, it has been held that, in certain circumstances, a man who
is called out from his home at night to deal with an emergency may be acting in the course of
his employment when travelling from his home to his place of work to deal with the emergency:
see Blee v London and North Eastern Rly Co [1938] AC 126. There are many other cases.
But how do we distinguish the cases in this category in which a man is acting in the course of
his employment from those in which he is not? The answer is, I fear, that everything depends
on the circumstances....
I approach the matter as follows. I do not regard this case as an ordinary case of travelling
to work. It would be more accurate to describe it as a case where an employee, who has for a
short time to work for his employers at a different place of work some distance away from his
usual place of work, has to move from his ordinary base to a temporary base (here lodgings in
Pembroke) from which he will travel to work at the temporary place of work each day. For the
purpose of moving base, a normal working day was set aside for Mr Stages’s journey, for which
he was paid as for an eight-hour day. In addition to his day’s pay he was given a travel allowance
for his journey, and an allowance for his lodgings at his temporary base in Pembroke. In my
opinion, in all the circumstances of the case, Mr Stages was required by the employers to make
this journey, so as to make himself available to do his work at the Pembroke power station, and
it would be proper to describe him as having been employed to do so. The fact that he was not
required by his employer to make the journey by any particular means, nor even required to
make it on the particular working day made available to him, does not detract from the propos
ition that he was employed to make the journey. Had Mr Stages wished, he could have driven
down on the afternoon of Sunday 21 August, and have devoted the Monday to (for example)
visiting friends near Pembroke. In such circumstances It could, l suppose, be said that Stages
was not travelling 'in his employers' time’. But this would not matter; for the fact remains that
the Monday, a normal working day, was made available for the journey, with full pay for that day
to perform a task which he was required by the employers to perform.

8 28 V IC A R IO U S L IA B IL IT Y
I have it very much in mind that Mr Machin and Mr Stages were described by counsel for
the employers as peripatetic laggers working at such sites as were available. This may well be
an accurate description of their work. If so, their contracts of service may have provided at
least an Indication as to how far they would be acting in the course of their employment when
changing from one power station to another. Indeed, accepting the description as correct, it
is difficult to know how much weight to give to It in the absence of their contracts of service.
However, the present case can in any event be differentiated on the basis that it was a depart
ure from the norm in that it was concerned with a move to a temporary base to deal with an
emergency, on the terms I have described.
I turn to Mr Stages's journey back. Another ordinary working day, Tuesday 30 August,
was made available for the journey, with the same pay, to enable him to return to his base
in the Midlands to be ready to travel to work on the Wednesday morning. In my opinion, he
was employed to make the journey back, just as he was employed to make the journey out
to Pembroke. If he had chosen to go to sleep on the Monday morning and afternoon for eight
hours or so, and then to drive home on the Monday evening so that he could have Tuesday
free... that would not have detracted from the proposition that his journey was in the course of
his employment. For this purpose, it was irrelevant that Monday was a bank holiday. Of course,
it was wrong for him to succumb to the temptation of driving home on the Monday morning,
just after he had completed so long a spell of work; but once again that cannot alter the fact that
his journey was made in the course of his employment.
Forthese reasons, I would dismiss the appeal.
Lord Lowry
The paramount rule is that an employee travelling on the highway will be acting in the course
of his employment if, and only If, he is at the material time going about his employer's business.
One must not confuse the duty to turn up for one's work with the concept of already being 'on
duty' while travelling to it.
It Is impossible to provide for every eventuality and foolish, without the benefit of argu
ment, to make the attempt, but some prima fade propositions may be stated with reasonable
confidence.
(1) An employee travelling from his ordinary residence to his regular place of work, what
ever the means of transport and even if it is provided by the employer, is not on duty and is not
acting in the course of his employment, but, if he is obliged by his contract of service to use the
employer's transport, he will normally, in the absence of an express condition to the contrary,
be regarded as acting in the course of his employment while doing so.
(2) Travelling in the employer's time between workplaces (one of which may be the regular
workplace) or in the course of a peripatetic occupation, whether accompanied by goods or
tools or simply in order to reach a succession of workplaces (as an inspector of gas meters
might do), will be in the course of the employment.
(3) Receipt of wages (though not receipt df a travelling allowance) will indicate that the
employee is travelling in the employer’s time and for his benefit and is acting in the course of
his employment, and in such a case the fact that the employee may have discretion as to the
mode and time of travelling will not take the journey out of the course of his employment.
(4) An employee travelling In the employer’s time from his ordinary residence'to a work
place other than this regular workplace or in the course of a peripatetic occupation or to the
scene of an emergency (such as a fire, an accident or a mechanical breakdown of plant) will be
acting in the course of his employment.
(5) A deviation from or interruption of a journey undertaken in the course of employment
(unless the deviation or interruption is merely incidental to the journey) will for the time being

(which may include an overnight interruption) take the employee out of the course of his
employment.
(6) Return journeys are to be treated on the same footing as outward journeys.
All the foregoing propositions are subject to any express arrangements between the
employer and the employee or those representing his interests. They are not, I would add,
intended to define the position of salaried employees, with regard to whom the touchstone of
payment made in the employer's time is not generally significant....
Lord Keith, Lord Brandon and Lord Griffiths agreed with Lord Goff and Lord Lowry.
Appeal dismissed.
CO M M EN TA R Y
Particular problems have arisen in relation to passengers or bystanders injured by an
employee driving a form of transport provided by the employer where the accident occurred
in the course of an unauthorised detour taken by the employee. Although the cases are dif
ficult to reconcile, whether the employer will be liable depends on the degree of deviance
from the authorised journey. As Parke B stated in Joel v Morison (1834) 6 C & P 501 at 503:
‘If he [the employee] was going out of his way, against his master’s implied commands, when
driving on his master’s business, he will make his master liable; but ifhe was going on a frolic
of his own, without being at all on his master’s business, the master will not be liable. . The
difference between departing from the master’s implied command so as to make the mas
ter liable and a ‘frolic of one’s own’ is hard to tell, to say the least, and the cases only show
how difficult such a distinction is in practice (compare Harvey v R. G. O’Dell [1958] 2 QB
78—journey by workmen to get a meal during working hours was ‘fairly incidental’ to their
work—with Hilton v Burton (Rhodes) Ltd [1961] 1 WLR 705—journey of the employees was
seven or eight miles from their work site for tea after they had returned from lunch in a pub
lic house and accident occurred on the return trip from the café; held not in the course of
employment). See also Nottingham y Aldridge [1971] 2 QB 739.
Can the journey be both authorised and unauthorised at the same time? In A. & W.
Hemphill Ltd v Williams [1966] 2 Lloyd’s Rep 101, the pursuer was a member of the Boy’s
Brigade of Glasgow, which was returning from a summer camp. The boys were being driven
to Glasgow by the employee of the defender, who had express instructions as to the route he
should take. At the request of some of the boys (not the pursuer) he deviated from this route
and took a journey he had expressly been prohibited to take, and in the course of this devi
ation an accident occurred in which the pursuer was injured. The House of Lords upheld the
decision holding the defender vicariously liable. If the lorry had been empty the deviation
might have amounted to a ‘frolic of his own’, but whilst the passengers remained on the lorry
transportation of them was the dominant purpose of the driving. Lord Pearce held (at 104):
But when there are passengers whom the servant on his master's behalf has taken on board for
transport to Glasgow, their transport and safety does not cease at a certain stage of the journey
to be the master's business, or part of his enterprise merely because the servant has for his own
purposes chosen some route which Is contrary to his Instructions.
The reason the responsibility did not cease was presumably that the employer had under
taken to provide a service to the passengers (transport) and unless the acts of the employee
were clearly outside the scope of what he was employed to do the employer should remain

liable (reasoning analogous to that pertaining to non-delegable duties of care). This was not
the case here, because the driver was still doing the job he was paid to do and the accident
might just as easily have occurred on an authorised route. Of course, this latter reasoning
could apply where pedestrians are injured by employees driving on an unauthorised route,
but in that case the employer has not undertaken a responsibility toward the pedestrian in
the same way as for a passenger; hence Lord Pearce’s distinction between an empty lorry and
one carrying passengers. If the driver in Hemphill had injured a pedestrian would the devi
ation have been held to be outside the course of employment? If so, this seems to make the
pedestrian’s right to recover against the employer dependent on the fortuitous circumstance
that the driver was carrying passengers at the time of the accident. Can this be correct? (See
Morris v Martin (below) per Lord Denning MR, and also the criticism of this part of Lord
Pearce’s judgment by the Lord Ordinary (Lord Robertson) in Angus v Glasgow Corporation
1977 SLT 206, although the First Division of the Inner House made no comment on this
aspect of the Lord Ordinary’s judgment on appeal. Hemphill was applied without comment
by the Lord Ordinary (Lord Wylie) in R. J. McLeod (Contractors) Ltd v South of Scotland
Electricity Board 1982 SLT 274.)
What if the driver takes the correct route but with a different type of vehicle? In McKean
v Raynor Brothers Ltd (Nottingham) [1942] 2 All ER 650 an employee was told to take one
of his employer’s lorries to convey a message, but instead he took his father’s car and in the
course of the journey negligently killed the plaintiff’s husband. Hilbery J held the employee
was doing an authorised act within the scope of his employment and, although it was done
in an unauthorised way, it was not done in a prohibited way and the employers were liable.
Do you think the same result would be reached under the ‘close connection’ test?
3. Employee Acting Contrary to Express Instructions
Rose v Plenty [1976] 1 WLR 141

The plaintiff was a 13-year-old child who had been employed by a milkman to help deliver milk
from a van. This was contrary to a notice that the defendant, the milkman’s employer, had
exhibited at the depot expressly prohibiting the employment of children to assist the perform
ance of milkmen's duties and from giving lifts on the milk van. As a consequence of assisting the
milkman, the plaintiff rode on the milk van and was Injured when the milkman drove the float
negligently. The plaintiff brought an action for damages for negligence against the milkman
and the employers, obtaining judgment against the milkman, but falling against the employ
ers on the ground that the milkman had been acting outside the scope of his employment In
employing the plaintiff and carrying him on the float contrary to the employers’ Instructions.
The plaintiff appealed.
Lord Denning MR
In considering whether a prohibited act was within the course of the employment.lt depends
very much on the purpose for which It is done. If it is done for his employers’ business, It Is
usually done In the course of his employment, even though it Is a prohibited act. ... But if it
is done for some purpose other than his master’s business, as, for instance, giving a lift to a
hitchhiker, such an act, If prohibited, may not be within the course of his employment.... In the
present case It seems to me that the course of Mr Plenty’s employment was to distribute the

milk, collect the money and to bring back the bottles to the van. He got or allowed this young
boy, Leslie Rose, to do part of that business which was the employers' business. It seems to me
that although prohibited, it was conduct which was within the course of the employment; and
on this ground I think the judge was In error. I agree it is a nice point In these cases on which
side of the line the case falls; but, as I understand the authorities, this case falls within those in
which the prohibition affects only the conduct within the sphere of the employment and did
not take the conduct outside the sphere altogether. 1would hold this conduct of Christopher
Plenty to be within the course of his employment and the master is liable accordingly, and I
would allow the appeal.
Scarman LJ
I think It important to realise that the principle of vicarious liability is one of public policy. It Is
not a principle which derives from a critical or refined consideration of other concepts in the
common law, e.g. the concept of trespass or Indeed the concept of agency. No doubt in par
ticular cases it may be relevant to consider whether a particular plaintiff was or was not a tres
passer. Similarly, when, as I shall indicate, it is Important that one should determine the course
of employment of the servant, the law of agency may have some marginal relevance. But basic
ally, as I understand It, the employer is made vicariously liable for the tort of his employee not
because the plaintiff Is an invitee, nor because of the authority possessed by the servant, but
because It is a case In which the employer, having put matters into motion, should be liable if
the motion that he has originated leads to damage to another. What Is the approach which the
cases identify as the correct approach in order to determine this question of public policy?
First, as Lord Denning MR has already said, one looks to see whether the servant has commit
ted a tort on the plaintiff. In the present case it Is clear that the first defendant, the servant of
the dairy company, who are the second defendants, by the negligent driving of the milk float,
caused injury to the plaintiff, a boy 1334 years old, who was on the float at his invitation. There
was therefore a tort committed by the servant. The next question, as Lord Denning MR has
said, Is whether the employer should shoulder the liability for compensating the person Injured
by the tort. With all respect to the points developed by Lawton LJ, it does appear to me to be
clear, since the decision of Limpus v London General Omnibus Co (1862) 1 H&C 542; 158 ER
993, that that question has to be answered by directing attention to what the first defendant
was employed to do when he committed the tort that has caused damage to the plaintiff. The
first defendant was, of course, employed at the time of the accident to do a whole number of
operations. He was certainly not employed to give the plaintiff a lift, and if one confines one’s
analysis of the facts to the incident of Injury to the plaintiff, then no doubt one would say that
carrying the plaintiff on the float— giving him a lift— was not in the course of the first defend
ant’s employment. But in llkiw v Samuels [1963] 1 WLR at 1004 Dlplock LJ indicated that the
proper approach to the nature of the servant’s employment Is a broad one. He said:
As each of these nouns implies [he is referring to the nouns used to describe course of
employment, sphere, scope and so forth] the matter must be looked at broadly, not dis
secting the servant’s task into Its component activities— such as driving, loading, sheeting
and the like— by asking: What was the job on which he was engaged for his employer? and
answering that question as a jury would.
Applying those words to the employment of the first defendant, I think It is clear from the evi
dence that he was employed as a roundsman to drive his float round his round and to deliver
milk, to collect empties and to obtain payment. That was his job. He was under an express pro
hibition— a matter to which I shall refer later— not to enlist the help of anyone doing that work.
And he was also under an express prohibition not to give lifts on the float to anyone. How did he

choose to carry out the task which I have analysed? He chose to disregard the prohibition and
to enlist the assistance of the plaintiff. As a matter of common sense, that does seem to me to
be a mode, albeit a prohibited mode, of doing the job with which he was entrusted. Why was
the plaintiff being carried on the float when the accident occurred? Because It was necessary
to take him from point to point so that he could assist In delivering milk, collecting empties and,
on occasions, obtaining payment. The plaintiff was there because it was necessary that he
should be there In order that he could assist, albeit In a way prohibited by the employers, in the
job entrusted to the first defendant by his employers....
It does seem to me that the principle that I have been attempting to describe Is to be found
in the case law, notably in Limpus v London General Omnibus Co, Hilton v Thomas Burton
(Rhodes) Ltd [1961] 1 WLR 705 and llkiwv Samuels [1963] 1 WLR 991. Yet It Is said that the flow
of this current of authority must be damned and the stream of the law diverted because of the
two decisions to which Lawton LJ has referred: Twine v Bean's Express Ltd (1946) 175 LT131 and
Conway v George Wimpey & Co Ltd [1951] 2 KB 266. Both of those decisions seem to me distin
guishable on their facts. In Twine’s case (at 132), at the very end of the judgment, Lord Greene
MR said: 'The other thing that he [ie the servant] was doing simultaneously was something
totally outside the scope of his employment, namely, giving a lift to a person who had no right
whatsoever to be there.' In that case the conclusion of fact was that the express prohibition on
giving lifts was not only a prohibition but was also a limiting factor on the scope of the employ
ment; and, of course, once a prohibition is prbperly to be treated as a defining or limiting factor
on the scope of employment certain results follow. In Twine's case the driver was engaged
to drive his employers' van, his employers having a contract with the Post Office. When so
doing, he gave Mr Twine a lift from A to B. True A and B happened to be, both of them, offices
of the Post Office. Yet I can well understand why the court reached the conclusion that in the
circumstances of that case It was not possible to say that the driver in giving Mr Twine a lift was
acting within the scope of his employment or doing Improperly that which he was employed
to do. Similarly when one looks at Conway’s case, one again sees that on the facts of that case
the court considered it right so to define the scope of employment that what was done, namely
giving somebody a lift, was outside it and was not a mode of doing that which the servant was
employed to do. That also was a case of a lift: the person lifted was not in any way engaged, in
the course of the lift or indeed otherwise, in doing the master's business or in assisting the ser
vant to do the master’s business; and no doubt It was for that reason that Asquith LJ was able to
say ([1951] 2 KB at 276) that what was done— that Is giving somebody else’s employee a lift from
the airport home— was not a mode of performing an act which the driver was employed to do,
but was the performance of an act which he was not employed to perform. In the present case
the first defendant, the servant, was employed to deliver milk, to collect empties, to obtain
payment from customers. The plaintiff was there on the float In order to assist the first defend
ant to do those jobs. I would have thought therefore that whereas Conway v George Wimpey
& Co Ltd was absolutely correctly decided on its facts, the facts of the present case lead to a
very different conclusion. The dividing factor between, for instance, the present case and the
decisions In Twine v Bean's Express Ltd and Conway v George Wimpey & Co Ltd is the category
into which the court, on the study of the facts of the case, puts the express prohibition issued
by the employers to their servant....
Now there was nothing of that sort [a prohibition on the sphere of employrrrent] In the
prohibition in this case. The prohibition is twofold: (1) that the first defendant was not to give
lifts on his float; and (2) that he was not to employ others to help him in delivering the milk
and so forth. There was nothing in those prohibitions which defined or limited the sphere of
his employment. The sphere of his employment remained precisely the same after as before
the prohibitions were brought to his notice. The sphere was as a roundsman to go round the
rounds delivering milk, collecting empties and obtaining payment. Contrary to instructions,

this roundsman chose to do what he was employed to do in an improper way. But the sphere of
his employment was In no way affected by his express instructions....
Lawton LJ (dissenting)
If a general principle should be needed to support my opinion in this case, I would adopt the
same approach as Lord Greene MR in Twine's case. What duty did the second defendants owe
to the plaintiff? Counsel for the plaintiff says: 'Oh well, they put the driver with the milk float
on the road; they put him into a position to take passengers if he were minded to disobey his
instructions and therefore it is socially just that they should be responsible.’ I do not agree.
When they put the first defendant with his float on the road they put him into a position where
he had to take care not to injure those with whom he was reasonably likely to have dealings
or to meet, that Is all other road users and his customers. They expressly excluded anyone
travelling as a passenger on his milk float. He was Instructed expressly that he was not to carry
passengers. Had he obeyed his instructions, he would not have had a passenger to whom he
owed a duty of care. It was his disobedience which brought the injured plaintiff into the class
of persons to whom the second defendants vicariously owed a duty of care. He had not been
employed to do anything of the kind. In my judgment, the plaintiff has failed to establish that
the second defendants owed him any duty of care.
Appeal allowed.
CO M M EN TA RY
Where the employee acts contrary to an express prohibition by the employer, whether by so
acting the employee is within or without the course of employment depends upon the con
struction of the prohibition: ‘there are prohibitions which limit the sphere of employment,
and prohibitions which only deal with conduct within the sphere of employment’ (Plumb v
Cobden Flour Mills Co Ltd [1914] AC 62 at 67, per Lord Dunedin). The extracted case deals
with the latter situation, but two earlier cases, distinguished by the majority, represent the
former. In Twine v Bean’s Express Ltd (1946) 175 LT 131, an employee driver was prohibited
from allowing anyone to travel with him in his employer’s van, but in breach of this prohib
ition gave a lift to T, who was killed as result of the driver’s negligence. The Court of Appeal
held that the employer was not liable for the negligence of its driver. Even though driving the
van was clearly within the course of employment, giving a lift to another was equally clearly
outside it. ’This case was applied in Conway v George Wimpey & Co Ltd [1951] 2 KB 266. The
employee drove his employer’s vehicle but with the express provision that it should only be
used to provide transport for the employer’s employees. However, it was common practice
for other workers at the site to be given lifts by the drivers, although the employer did not
know of this practice. Applying Twine, the Court of Appeal refused to hold the employer
vicariously liable. In Conway the passenger had not seen the prohibitory notice in the cabin
of the lorry (and, as he lost, its effect did not arise for decision) but would it make any differ
ence if a passenger accepted a lift from an employee knowing that this was contrary to an
express prohibition of the employer? In Stone v Taffe [1974] 1 WLR 1575, Stephenson LJ held
(at 1581) that, assuming the prohibition was one that limited the scope of employment, ‘[A]
n employer could escape liability by proving that the prohibition was likely to be known to
the injured person.’ If, however, the question whether the prohibition limits the scope of
employment or not must first be decided, the question of notice of the prohibition appears

to add nothing to the question of vicarious liability, although it may operate as some form of
volenti defence.
Despite the attempt of Scarman LJ to rationalise the cases, the line between some appears
fine. In Iqbal v London Transport Executive, The Times, 6 June 1973, a conductor attempted
to move a bus that was blocking the entry route for his bus contrary to an express prohib
ition that conductors should not drive buses. This action was held to fall outside his course
of employment (see also Beard v London General Omnibus Company [1900] 2 QB 530).
However, in Ilkiw v Samuels [1963] 1 WLR 991 a lorry driver had had strict instructions
from his employers not to allow the lorry to be driven by anybody else. After receiving a
delivery of sugar the lorry had to be moved to make room for another lorry, and, notwith
standing his instructions, the driver allowed a workman to move the lorry. The worker drove
the lorry carelessly and the plaintiff was injured. The Court of Appeal held that the lorry
driver had been negligent in allowing the workman to drive, and that this negligence arose
in the course of his employment. He was employed to have charge and control of the lorry
while engaged on the task, and the prohibition on allowing anyone else to drive was merely
a prohibition on the mode of doing his job, disregard of which did not take the negligent act
of driving outside the course of his employment. Would it have made any difference in Iqbal
if, instead of acting of his own volition, the conductor had been asked by the driver to move
the bus?
Although it is no longer required that the employee be acting for his employer’s benefit
to make the employer vicariously liable, the purpose of the employee’s act is not irrelevant.
As Lord Denning MR suggests in the extracted case, if the act is done for the employer’s
business it is usually done in the course of employment. But what is the ‘master’s benefit’ in
this context? The driver in Conway v George Wimpey (above) was driving his lorry from one
place to another for the benefit of his employer (he was not doing it for his own gratification)
and would undoubtedly have been acting in the course of employment if his negligence
had injured a pedestrian; yet he was held not to be acting in the course of employment
vis-à-vis the unauthorised passenger who was injured. Conversely, in Limpus v London
General Omnibus Co (1862) 1 H & C 526, 158 ER 993, an omnibus driver who obstructed a
rival omnibus in contravention of his employer’s stated wishes was none the less held to be
acting for his employer’s benefit (although the intense rivalry between omnibus companies
at the time suggests that there may be more to the decision than meets the eye, especially
as the London General Omnibus Company, founded as a French-controlled company, was
perceived as being a foreign invader—for a fascinating account, see Barker and Robbins,
History of London Transport, Voi. 1 (London: Allen & Unwin, 1963), pp. 69-98). More gen
erally, how can an act be for the employer’s benefit if it has been expressly prohibited by
the employer? If an employer prohibits his employees from acting in an unlawful manner,
is an employer none the less vicariously liable, for example, for a battery committed by an
employee who shoots another in the course'of robbing a bank for the employer’s benefit?
The simple answer is that it is unlikely that robbing a bank will be in the course of employ
ment, but this is circular, for whether an act is within the course of employment is affected
(although not decided) by the motive with which it was done. Perhaps all that can be said
is that, at various times and in various circumstances, judicial policy has pulled judges in
different directions; hence the divergence in the case law. On one hand it seems unfair to
hold an employer to what is effectively absolute liability where the employee acts contrary to
instructions. On the other, as Willes J (at 539) noted in Limpus:
It is well known that there Is virtually no remedy against the driver of an omnibus, and therefore it Is
necessary that, for Injury resulting from an act done by him In the course of his master's service, the

master should be responsible; for there ought to be a remedy against some person capable of pay
ing damages to those Injured by improper driving....
Is this reasoning as persuasive as it once was in light of compulsory th ird party motor vehicle
insurance?
4. Criminal Acts of the Employee
Lister v Hesley Hall Ltd [2002] 1 AC 215

Between 1979 and 1982 the claimants were resident In Axeholme House, a boarding house
attached to a school owned and managed by the defendants. The warden of the boarding
house employed by them, without their knowledge, systematically sexually abused the claim
ants. The claimants claimed damages against the defendants for the personal Injuries involved,
contending that the defendants had been negligent in their care, selection and control of the
warden, alternatively that they were vicariously liable for the torts committed by him. The
judge dismissed the direct claims in negligence. He held that the defendants could not beheld
vicariously liable for the warden's torts but that they were vicariously liable for the warden's
failure to report to them his intentions to commit acts of abuse and the harmful consequences
to the claimants of those acts. The Court of Appeal allowed an appeal by the defendants, hold
ing that the warden's acts could not be regarded as an unauthorised mode of carrying out his
authorised duties.
Lord Steyn
The central question before the House Is whether as a matter of legal principle the employers
of the warden of a school boarding house, who sexually abused boys In his care, may depend
ing on the particular circumstances be vicariously liable for the torts of their employee....
Since the decision in the Court of Appeal the law reports of two landmark decisions in
the Canadian Supreme Court, which deal with vicarious liability of employers for sexual
abuse of children, have become available: Bazley v Curry (1999) 174 DLR (4th) 45; Jacobi v
Griffiths (1999) 174 DLR (4th) 71. Enunciating a principle of ‘close connection’ the Supreme
Court unanimously held liability established in Bazley's case and by a four to three majority
came to the opposite conclusion in Jacobi's case. The Supreme Court judgments examine
in detail the circumstances In which, though an employer is not ‘at fault', it may still be ‘fair’
that it should bear responsibility for the tortious conduct of its employees. These decisions
have been described as 'a genuine advance on the unauthorised conduct/unauthorised mode
distinction’: Peter Cane, ‘Vicarious Liability for Sexual Abuse’ (2000) 116 LQR 21, 24. Counsel
for the appellants invited your Lordships to apply the test developed in Bazley's case and in
Jacobi's case and to conclude that the employers are vicariously liable for the sexual torts of
their employee....
Vicarious liability Is legal responsibility imposed on an employer, although he is himself free
from blame, for a tort committed by his employee in the course of his employment. Fleming
observed that this formula represented 'a compromise between two conflicting policies: on
the one hand, the social interest in furnishing an Innocent tort victim with recourse against a
financially responsible defendant; on the other, a hesitation to foist any undue burden on busi
ness enterprise’: The Law of Torts, 9th edn (1998), pp 409-410.
For nearly a century English judges have adopted Salmond’s statement of the applicable test
as correct. Salmond said that a wrongful act Is deemed to be done by a ‘servant’ in the course

of his 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': Salmond, Law of Torts,
1st edn (1907), p 83; and Salmond & Heuston on the Law of Torts, 21st edn, p 443. Situation (a)
causes no problems. The difficulty arises in respect of cases under (b). Salmond did, however,
offer an explanation which has sometimes been overlooked. He said ISalmond on Torts, 1st
edn, pp 83-84) that 'a master... is liable even for acts which he has not authorised, provided
they are so connected with acts which he has authorised, that they may rightly be regarded as
modes— although improper modes— of doing them' (my emphasis)... Salmond’s explanation
is the germ of the close connection test adumbrated by the Canadian Supreme Court In Bazley
v Curry and Jacobi v Griffiths.
It is not necessary to embark on a detailed examination of the development of the modern
principle of vicarious liability. But it Is necessary to face up to the way in which the law of vicari
ous liability sometimes may embrace intentional wrongdoing by an employee. If one mechanic
ally applies Saimond's test, the result might at first glance be thought to be that a bank is not
liable to a customer where a bank employee defrauds a customer by giving him only half the
foreign exchange which he paid for, the employee pocketing the difference. A preoccupation
with conceptualistic reasoning may lead to the absurd conclusion that there can only be vic
arious liability if the bank carries on business in defrauding its customers. Ideas divorced from
reality have never held much attraction forjudges steeped in the tradition that their task is to
deliver principled but practical justice...
Our law no longer struggles with the concept of vicarious liability for intentional wrong
doing. Thus the decision of the House of Lords in RaczvHome Office [1994] 2 AC 45 is authority
for the proposition that the Home Office may be vicariously liable for acts of police officers
which amounted to misfeasance in public office— and hence for liability In tort involving bad
faith. It remains, however, to consider how vicarious liability for intentional wrongdoing fits
In with Salmond's formulation. The answer is that it does not cope ideally with such cases. It
must, however, be remembered that the great tort writer did not attempt to enunciate precise
propositions of law on vicarious liability. At most he propounded a broad test which deems
as within the course of employment 'a wrongful and unauthorised mode of doing some act
authorised by the master’. And he emphasised the connection between the authorised acts
and the 'Improper modes' of doing them. In reality it is simply a practical test serving as a div
iding line between cases where it is or Is not just to impose vicarious liability. The usefulness of
the Salmond formulation is, however, crucially dependent on focusing on the right act of the
employee...
[After considering Rose v Plenty, extracted above, his Lordship continued:]
If this approach to the nature of employment is adopted, It is not necessary to ask the simplis
tic question whether in the cases under consideration the acts of sexual abuse were modes of
doing authorised acts. It becomes possible to consider the question of vicarious liability on the
basis that the employer undertook to care for the boys through the services of the warden and
that there is a very close connection between the torts of the warden and his employment.
After all, they were committed in the time and on the premises of the employers while the war
den was also busy caring for the children....
My Lords, I have been greatly assisted by the luminous and illuminating judgments of the
Canadian Supreme Court in Bazley v Curry and Jacobi v Griffiths. Wherever such problems are
considered in future in the common law world these judgments will be the starting point. On
the other hand, It is unnecessary to express views on the full range of policy considerations
examined in those decisions.
Employing the traditional methodology of English law, I am satisfied that in the case of the
appeals under consideration the evidence showed that the employers entrusted the care of the

children in Axeholme House to the warden. The question is whether the warden’s torts were
so closely connected with his employment that it would be fair and just to hold the employers
vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was
Inextricably interwoven with the carrying out by the warden of his duties In Axeholme House.
Matters of degree arise. But the present cases clearly fall on the side of vicarious liability...
Lord Hobhouse of Woodborough

What these cases [Bazley v Curry, above, and Trotman v North Yorkshire County Council [1999]
LGR 584] in truth illustrate Is a situation where the employer has assumed a relationship to the
plaintiff which imposes specific duties in tort upon the employer and the role of the employee
(or servant) is that he is the person to whom the employer has entrusted the performance of
those duties. These cases are examples of that class where the employer, by reason of assum-
ing a relationship to the plaintiff, owes to the plaintiff duties which are more extensive than
those owed by the public at large and, accordingly, are to be contrasted with the situation
where a defendant is simply in proximity to the plaintiff so that it is foreseeable that his acts
may injure the plaintiff or his property and a reasonable person would have taken care to avoid
causing such injury. The category into which the present cases fall is recognised by the agreed
facts and the useful summary of Judge Harry Walker adopted by Swinton Thomas LJ:
The defendant admits it had a duty of care towards the plaintiffs. That duty of care was
to take all reasonable steps to safeguard the plaintiffs (and other pupils) in their physical,
moral and educational development whilst at the school. In carrying out that duty of care
the defendant, a limited company, necessarily had to appoint a hierarchy of responsible
agents ... each of whom had either general or particular responsibilities which bore upon
this duty of care. Mr Grain in particular was responsible for the boys while at Axeholme
House...
The fact that sexual abuse was involved does not distinguish this case from any other involving
the care of the young and vulnerable and the duty to protect them from the risk of harm. The
classes of persons or institutions that are in this type of special relationship to another human
being Include schools, prisons, hospitals and even, In relation to their visitors, occupiers of
land. They are liable If they themselves fail to perform the duty which they consequently owe.
If they entrust the performance of that duty to an employee and that employee fails to perform
the duty, they are still liable. The employee, because he has, through his obligations to his
employers, adopted the same relationship towards and come under the same duties to the
plaintiff, Is also liable to the plaintiff for his own breach of duty. The liability of the employers Is
a vicarious liability because the actual breach of duty is that of the employee. The employee
is a tortfeasor. The employers are liable for the employee’s tortious act or omission because
it Is to him that the employers have entrusted the performance of their duty. The employers'
liability to the plaintiff is also that of a tortfeasor. I use the word 'entrusted’ in preference to
the word ‘delegated’ which is commonly, but perhaps less accurately, used. Vicarious liability
is sometimes described as a ‘strict’ liability. The use of this term is misleading unless it is used
just to explain that there has been no actual fault on the part of the employers. The liability of
the employers derives from their voluntary assumption of the relationship towards the plain
tiff and the duties that arise from that relationship and their choosing to entrust the perform
ance of those duties to their servant. Where these conditions are satisfied, the motive of the
employee and the fact that he is doing something expressly forbidden and is serving only his
own ends does not negative the vicarious liability for his breach of the ‘delegated’ duty....
My' Lords, the correct approach to answering the question whether the tortious act of the
servant falls within or without the scope of the servant's employment for the purposes of the

principle of vicarious liability is to ask what was the duty of the servant towards the plaintiff
which was broken by the servant and what was the contractual duty of the servant towards
his employer. The second limb of the classic Salmond test is a convenient rule of thumb which
provides the answer in very many cases but does not represent the fundamental criterion
which is the comparison of the duties respectively owed by the servant to the plaintiff and
to his employer. Similarly, I do not believe that it is appropriate to follow the lead given by the
Supreme Court of Canada in Bazley v Curry. The judgments contain a useful and impressive
discussion of the social and economic reasons for having a principle of vicarious liability as part
of the law of tort which extends to embrace acts of child abuse. But an exposition of the policy
reasons for a rule (or even a description) is not the same as defining the criteria for its appli
cation. Legal rules have to have a greater degree of clarity and definition than is provided by
simply explaining the reasons for the existence of the rule and the social need for it, instructive
though that may be...
Lord Millett
Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission
on the part of the employer; an employer who is not personally at fault is made legally answer-
able for the fault of his employee. It is best understood as a loss-distribution device: (see Cane's
edition of Atiyah’s Accidents, Compensation and the Law, 6th ed (1999), p 85 and the articles
cited by Atiyah in his monograph on Vicarious Liability in the Law of Torts, at p 24.) The theoret
ical underpinning of the doctrine is unclear. Glanville Williams wrote ('Vicarious Liability and the
Master's Indemnity’ (1957) 20 MLR 220,231):
Vicarious liability is the creation of many judges who have had different ideas of its justifica
tion or social policy, or no idea at all. Some judges may have extended the rule more widely,
or confined it more narrowly than its true rationale would allow; yet the rationale, if we can
discover it, will remain valid so far as it extends.
Fleming observed (The Law of Torts, 9th ed, p 410) that the doctrine cannot parade as a deduc
tion from legalistic premises. He indicated that it should be frankly recognised as having its
basis in a combination of policy considerations, and continued: ‘Most important of these is
the belief that a person who employs others to advance his own economic interest should in
fairness be placed under a corresponding liability for losses incurred in the course of the enter
prise ...' Atiyah, Vicarious Liability in the Law of Torts wrote to the same effect. He suggested,
at p 171: ‘The master ought to be liable for all those torts which can fairly be regarded as reason
ably incidental risks to the type of business he carries on.’ These passages are not to be read as
confining the doctrine to cases where the employer is carrying on business for profit. They are
based on the more general idea that a person who employs another for his own ends inevitably
creates a risk that the employee will commit a legal wrong. If the employer's objectives cannot
be achieved without a serious risk of the employee committing the kind of wrong which he
has in fact committed, the employer ought to be liable. The fact that his employment gave the
employee the opportunity to commit the wrong is not enough to make the employer liable. He
is liable only if the risk is one which experience shows is inherent in the nature of the business.
While this proposition has never, so far as I am aware, been adopted in so many, words as a
test of vicarious liability in any of the decided cases, it does I think form the unspoken rationale
of the principle that the employer’s liability is confined to torts committed by an employee in
the course of his employment. The problem is that, as Townshend-Smith has observed (2000)
8 Tort L Rev 108,111), none of the various tests which have been proposed to determine this
essentially factual question is either intellectually satisfying or effective to enable the outcome
of a particular case to be predicted. The danger is that in borderline situations, and especially

in cases of intentional wrongdoing, recourse to a rigid and possibly inappropriate formula as a

test of liability may lead the court to abandon the search for legal principle.
In the very first edition of his book on Torts Sir John Salmond wrote, at p 83:
1. A master is not responsible for a wrongful act done by his servant unless it is done in the
course of his employment. It Is deemed to be so done if it is either (a) a wrongful act author
ised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised
by the master.
This passage has stood the test of time. It has survived unchanged for 21 editions, and has
probably been cited more often than any other single passage In a legal textbook. Yet it is not
without blemish. As has often been observed, the first of the two alternatives is not an example
of vicarious liability at all. Its presence (and the word 'deemed') may be an echo of the discred
ited theory of implied authority. More pertinently, the second is not happily expressed if It is to
serve as a test of vicarious liability for Intentional wrongdoing.
In the present case the warden was employed to look after the boys In his care and secure
their welfare. It is stretching language to breaking-point to describe the series of deliberate
sexual assaults on them on which he embarked as merely a wrongful and unauthorised mode
of performing that duty ...
In a passage which is unfortunately less often cited, however, Sir John Salmond (Salmond,
Law of Torts, 1st ed (1907)) continued his exposition as follows, at pp 83—84:
But a master, as opposed to the employer of an independent contractor, is liable even for
acts which he has not authorised, provided they are so connected with acts which he has
authorised, that they may rightly be regarded as modes— althoughfmproper modes— of
doing them.
One of these steps in this analysis could, I think, usefully be elided to impose vicarious liability
where the unauthorised acts of the employee are so connected with acts which the employer
has authorised that they may properly be regarded as being within the scope of his employ
ment. Such a formulation would have the advantage of dispensing with the awkward refer
ence to ‘improper modes' of carrying out the employee's duties; and by focusing attention
on the connection between the employee’s duties and his wrongdoing it would accord with
the underlying rationale of the doctrine and be applicable without straining the language to
accommodate cases of intentional wrongdoing.
But the precise terminology is not critical. The Salmond test, in either formulation, is not a
statutory definition of the circumstances which give rise to liability, but a guide to the principled
application of the law to diverse factual situations. What Is critical is that attention should be
directed to the closeness of the connection between the employee’s duties and his wrong
doing and not to verbal formulae. This is the principle on which the Supreme Court of Canada
recently decided the Important cases of Bazley v Curry 174 DLR (4th) 45 and Jacobi v Griffiths
174 DLR (4th) 71 which provide many helpful Insights Into this branch of the law and from which
I have derived much assistance...
In the present case the warden's duties provided him with the opportunity to commit
indecent assaults on the boys for his own sexual gratification, but that In itself is not enough to
make the school liable. The same would be true of the groundsman or the school porter. But
there was far more to it than that. The school was responsible for the care and welfare of the
boys. It entrusted that responsibility to the warden. He was employed to discharge the school’s
responsibility to the boys. For this purpose the school entrusted them to his care. He did not
merely take advantage of the opportunity which employment at a residential school gave him.
He abused the special position in which the school had placed him to enable It to discharge its

own responsibilities, with the result that the assaults were committed by the very employee to
whom the school had entrusted the care of the boys. It is not necessary to conduct the detailed
dissection of the warden's duties of the kind on which the Supreme Court of Canada embarked
in Bazley v Curry and Jacobi v Griffiths. I would hold the school liable.
I would regard this as in accordance not only with ordinary principle dedudble from the
authorities but with the underlying rationale of vicarious liability. Experience shows that in the
case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and
other residential homes for the young or vulnerable, there is an inherent risk that indecent
assaults on the residents will be committed by those placed in authority over them, particu
larly if they are In close proximity to them and occupying a position of trust...
Lord Clyde delivered a separate speech agreeing that the appeal should be allowed. Lord
Hutton agreed with Lord Steyn.
Appeal allowed.
CO M M EN TA R Y
In Trotman v North Yorkshire County Council [1999] LGR584the Court of Appeal refused to
hold a special school vicariously liable for the sexual assaults of one its teachers on a depend
ant child who was mentally disabled and suffered from epilepsy. Relying on the Salmond
test as traditionally understood, Butler-Sloss LJ thought the conduct of the teacher was a
negation of the task of caring for the plaintiff, not an unauthorised mode of carrying out
an authorised task. Hie House of Lords in Lister overruled Trotman, holding that the Court
of Appeal had asked the wrong question. If it could be said that the act of the carer had a
close connection with the employment this would be enough to impose liability. It should
be noted, however, that the traditional interpretation—unauthorised mode of performing
an authorised task—had been used, at least implicity, to sheet home liability to the employer
where an employee stole goods that had been bailed to his employer (Morris v Martin [1966]
2 QB 716) or where a solicitor’s clerk defrauded his employer’s client for his own benefit
(Lloyd v Grace, Smith & Co [1912] AC 716). In Morris, the plaintiff’s mink coat was stolen
by an employee of the sub-bailee of the coat to whom it had been given to clean. The Court
of Appeal held the defendant employer liable for its employee’s act, Lord Denning MR for
breach of the employer’s non-delegable duty as a bailee for reward to take care of the goods
and not to do any act inconsistent with the rights of the owner, and Diplock and Salmon LJJ
on the basis that the defendant was in breach of its duty to the bailor because of its employee’s
breach. The latter two judges explicitly (and Lord Denning implicitly) held that the position
might have been different if the theft had been carried out by another employee, because the
employment would have given that employeeonly the opportunity of carrying out the theft.
Such an employee would not be acting in the course of his employment, unlike the employee
to whom the coat was given to clean, even though the latter employee had carried out his
employment in an unauthorised way (by stealing it).
After Lister, it now seems clear that the basis of this decision is vicarious liability. Whilst
the Salmond ‘unauthorised mode’ was the dominant explanatory concept behind course of
employment, Morris v Martin was hard to justify: in reality, liability was being imposed for
giving the employee the opportunity to cause the harm, because only on a perverse view
could stealing an object be regarded as a manner of cleaning it. However, the House of Lords
in Lister stressed that the proper approach was to look at the connection between the

employment and the tort. It was for this reason that it was im portant the employee who was
employed to care for the children (or, in Martin, to clean the coat) committed the tort.
However, it is clear that ‘close connection is a composite concept, involving not just physical
proximity but also a consideration of the task the employee was performing, the causal rela
tionship between that task and the tort, and ultimately (as Lord Nicholls pointed out in
Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366) a value judgement as to whether vicari
ous liability should be imposed. Using these guidelines, several of their Lordships in Lister
thought the result would be different if the assault had been committed by the gardener or
school porter as the employment would only have provided such employees with the oppor
tunity to commit the tort.
To a greater or lesser degree all of their Lordship in Lister thought the nature of the
responsibility assumed by the employer to the claimant was relevant to the question of the
former’s vicarious liability. If this is correct, however, is it akin to imposing a non-delegable
duty of care on the employer to ensure the responsibility is carried out? If so, it is hard to see
why it matters whether the assault was committed by a carer (or, in Martin, by the employee
to whom the coat was given to clean). That the breach of this primary duty was caused by
another carer, a security guard, school porter or gardener should be irrelevant. One answer
may be that the responsibility was not delegated to anyone but the carer, and the closeness
of connection lay in the increased risk that a person exercising this kind of authority may be
abusive to those in his care. As to the use o f ‘authority’ in this context, Townshend-Smith
(2000) 9 Tort L Rev 108 at 124 comments:
This approach has two potential strengths. First, if the assailant has authority over the victim, com
plaining may be next to impossible while If there Is no such authority there may be less hindrance to
a complaint. Secondly, If the employer has granted the assailant authority over the victim, presum
ably for the employer’s own interest, it seems appropriate to allocate to the employer the costs of
abuse of that authority. But the purported utilisation of the concept of authority faces the problem
which bedevils any attempt at universal rules on vicarious liability: if authority refers to the nature
of the relationship there will be no agreement as to which relationships confer sufficient authority
tojustify the imposition of strict vicarious liability.
It may also be doubted whether there is any more merit in Lord Hobhouse’s view that
the answer to the question whether the act was within the scope of employment lay in
asking what was the duty of the servant towards the claimant which was broken by the
servant, and what was the contractual duty of the servant towards his employer. Such an
approach does not explain the results of a number of cases in which vicarious liability has
been imposed (e.g. Rose v Plenty, above; see further Hopkins [2001] CLJ 458) and appears
to base liability more on breach of the employer’s duty to the claimant—which seems to be
non-delegable—than on any notion of vicarious liability; in other words it is a primary and
not a secondary liability. A clear preference for treating the liability as truly vicarious was
expressed in the later case of Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 where
the House of Lords suggested that the justification for the close connection test rests on the
risks created by the employment rather than the nature of any duty owed by the employer
to the claimant, a position affirmed by the Court of Appeal in I<R v Bryn Alyn Community
(Holdings) Ltd [2003] QB 1441. Thus, although the extent of any relationship between the
employer and claimant may be relevant in determining the risk to the claimant created by
employing the particular employee, it does not determine the imposition of vicarious liabil
ity (see, e.g., Brown v Robinson [2004] UKPC 56; Bernard v Attorney General of Jamaica
[2005] IRLR 398).

The Application of the Close Connection Test outside Lister

More generally, do you think the ‘close connection’ test helpful in deciding whether an
employer should be held liable for the criminal act of his employee? In New South Wales v
Lepore (2003) 212 CLR 511 the High Court of Australia divided over its value in determin
ing vicarious liability for criminal conduct, and it must be admitted that Lister gives little
guidance on how to apply the test outside the facts of the case. In Dubai Aluminium Co Ltd v
Salaam [2003] 2 AC 366 Lord Nicholls noted that the best guide to its application would be
previous court decisions (although, as his Lordship thought that the crucial feature or fea
tures either producing or negativing vicarious liability varied widely from one case or type
of case to the next, the precedential value of previous authority must be limited). In Bazley v
Curry (1999) 174 DLR (4th) 45, a decision of the Supreme Court of Canada referred to with
approval in Lister, McLachlin J provided a number of factors to be taken into account: apart
from the twin goals of loss-distribution and deterrence, the court should look at the extent
to which the tort may have furthered the aims of the employer’s enterprise; the extent to
which friction, confrontation or intimacy between employees and the potential victims of
their torts was inherent in the enterprise; the amount of power which employees had over
potential victims by reason of their employment; and the level of vulnerability of potential
victims to that power. Even with guidelines, however, it may be doubted whether the out
comes of cases can be predicted with any certainty. In the companion case to Bazley, Jacobi
v Griffiths (1999) 174 DLR (4th) 71, a majority of the Supreme Court of Canada refused to
hold an employer vicariously liable for the acts of its employee. Unlike in Bazley, where the
sexual abuse had taken place in the home run by the employer, the sexual assaults took place
outside work hours and outside work premises. Criticising the result in Jacobi, Feldthusen
(2001) 9 Tort L Rev 173 argues that in any case where the activity of the employer materially
increased the risk of the sexual abuse occurring, the close connection should be satisfied:
If we put children in the unsupervised control of adult authority figures the chances of being
sexually abused increase significantly. Where there exists a high correlation between sexual
assault and a type of employment, vicarious liability encourages specific deterrence. The absence
of vicarious liability encourages indifference to child protection. Vicarious liability encourages
market deterrence by internalising the predictable costs of sexual abuse. Institutional defendants
are much better positioned than child victims to allocate and spread this risk. Without vicarious
liability, society undervalues the cost of sexual assault and fails to compensate its most vulnerable
victims.
The problem with this approach, applying as it does the two ‘policy rationales’ for vicarious
liability explained in Bazley, is that application of the rationales can easily lead to different
conclusions. As Weekes [2004] CLJ 53, 61 argues: ‘Where any of the above factors [sc. under
the risk approach] has met divergent judicial opinion and generated conflicting precedent,
this is because the courts have disagreed as to its significance in policy terms for determin
ing the imposition of vicarious liability’. A good example is Jacobi itself, where, speaking for
the majority of the Supreme Court of Canada, Binnie J doubted whether the imposition of
liability on the employer, a non-profit organisation, would lead to equitable loss-spreading.
Nor did he think that imposing liability would act as a deterrent; it might, in fact, result in
over-deterrence by encouraging the closure of this kind of charity. Is this disagreement just
an inevitable by-product of the nature of vicarious liability? Commenting on Bazley and
Jacobi, Cane (2000) 116 LQR21 at 25 writes: ‘At the end of the day, the judge must decide, on
the facts of the case before the court, whether the connection between the employee’s tort
and the employer’s activity was close enough to justify holding the employer vicariously

V I C A R IO U S L IA B IL IT Y 8 43
liable. To this extent, at least, judicial decision-making in such cases is irreducibly

“pragmatic”.’
Although motive has been disregarded as the sole test for deciding whether an employee’s
act is in the course of employment, it may still be a relevant factor in deciding if there is a close
connection between the tort and the employment. Prior to Lister, where employers had been
held vicariously liable for prima facie unlawful acts of their employees the acts had normally
been done in the employer’s interest, a contrast being drawn with cases where the employee’s
act was one of personal vengeance (Poland v John Parr [1927] 1 KB 236; Vasey v Surrey Free
Inns pic, CA Civil Division, 5 May 1995; cf. Warren v Henlys Ltd [1948] 2 All ER 932). In the
post-Lister case of Mattis v Pollock [2003] 1 WLR 2158, the Court of Appeal held that the
employer was liable for the act of the employee doorman when returning to the nightclub to
assault a patron, having previously gone home to collect a knife. In truth, it is difficult to see
the employee’s conduct as serving the employer’s interests as opposed to being a private act of
vengeance, but post-Lister there is no reason why private acts of vengeance should necessarily
be excluded. The question is simply the closeness of the connection between the act and the
employment; in Mattis the employee was authorised to use some violence to maintain order,
and his conduct was sufficiently connected with the exercise of that authority so as to justify
imposing vicarious liability even if, as seems unarguable, the attack was motivated by personal
spite. But personal motives retain some relevance; in N v Chief Constable o f Merseyside Police
[2006] EWHC 3041 (QB), the defendant police authority was held not to be vicariously liable
for the sexual assaults of a probationary constable even though the constable was wearing full
uniform and abused this position to carry out the assaults. Unlike Mattis, the constable was
off-duty at the time and outside the area where he regularly worked; in these circumstances
one reason for holding that the acts did not bear a close connection to the employment was
that he was pursuing ‘his own misguided personal aims’ (cf. Attorney General v Hartwell
[2004] UKPC 12; Bernard v Attorney General of Jamaica [2005] IRLR398).
Commenting on Mattis, Weekes [2004] CLJ 53, 56 notes:
It would seem that a sufficient risk was created by the a priori step of employing this particular
bouncer in an enterprise that posed some inherent risk of personal injury to its customers. In short,
the precedent condition for liability is employment, rather than the commission of acts during the
course of employment.
Do you agree with his assessment that in Mattis ‘the risk rationale seems intuitively unjust’?
It is difficult to resist the conclusion that many of the above decisions are based on the
court’s perception of the justice or otherwise of allowing the plaintiff to recover—a conclu
sion that might be equally apt to describe much of the law relating to vicarious liability. For
comment on the ‘assault’ cases, see Rose, ‘Liability for an Employee’s Assaults’ (1977) 40
MLR 420. Do you agree with the author of this article that, although the claimant should not
benefit merely because his assailant has an employer, ‘there seems to be no reason why he
should not benefit in cases where it can be considered justifiable to impose liability on an
employer whether for reasons of compensation, deterrence, loss distribution... ’? If these are
the factors that liability is in fact based on, why should courts continue to go through the
charade of determining whether an act was in the course of employment at all? Would expli
citly addressing these issues lead to a more principled, better informed debate as to the cir
cumstances in which an employer should bear the costs of an employee’s civil liability? (See
Stevens (2006) 122 LQR 201.) For an alternative ground on which to find the employer liable
see Townshend-Smith (2000) 8 Tort L Rev 108, who argues that there should be a rebuttable
presumption that the act of the employee was in the course of employment as the employer

created the opportunity for the employee to commit the tort. However, the employer would
have a defence if it can show, with the onus of proof on it, that it took reasonable steps to
prevent the employee acting in the way that he did.
It should be noted that whether an employee’s act is within the course of employment may
vary in statutory contexts. In Jones v Tower Boot Co [1997] 2 All ER 395 the complainant
sued for racial discrimination under the Race Relations Act 1976, which makes employ
ers liable for racial abuse by their employees carried out in the course of employment. The
Court of Appeal held that, as a matter of statutory construction, the term ‘the course of
employment’ was not to be given the same meaning as it bears in the common law of vicari
ous liability; in this context, looking at the purpose of the 1976 Act, the term bore a wider
meaning than at common law.
iv. Primary Liability and Liability for Agents

and Non-Employees
1. Primary Liability
Turberville v Stampe (1697) 1 Ld Raym 264, 91 ER 1072

The court was considering the liability arising out of a fire negligently lit by a servant.
Holt CJ
[l]f a stranger set fire to my house, and it burns my neighbour's house, no action will lie against
me. ... But If my servant throws dirt into the highway, I am Indictable. So in this case If the
defendant's servant kindled the fire In the way of husbandry and proper for his employment,
though he had no express command of his master, yet his master shall be liable to an action for
damage done to another by the fire; for it shall be Intended, that the servant had authority from
his master, It being for the master's benefit.
CO M M EN TAR Y
If the master had commanded the servant to perform the act in a negligent way, the master
would be liable, not under the principles of vicarious liability, but as a primary tortfeasor,
that is, based on the master himself committing a tort. This principle would apply to anyone
who commanded another to commit a tort. This case o f ‘express command’ is widened in
the extracted case by Holt CJ to ‘implied command’, that is, the servant had implied author
ity to carry out acts that were ‘proper for his employment’. As Winfield & Jolowicz notes
(para. 20-2), in time the term ‘implied authority gave way to ‘scope of employment’ signal
ling the arrival of the modern doctrine of vicarious liability.
The development of a true ‘secondary’ vicarious liability, however, has not affected liabil
ity as a principal or primary tortfeasor. Thus liability as a principal extends to those who

conspire with, procure, authorise or induce another to commit a tort, and also to those who
have joined in a common design pursuant to which the tort was committed (Credit Lyonnais
Bank Nederland N V v Export Credit Guarantee Corporation [2000] 1 AC 486; Carty (1999)
19 LS 489). What conduct will amount to ‘joining in a common design’ is less clear. In Brooke
v Bool [1928] 2 KB 578 the defendant requested M to help him search for a gas leak. M did
this by illuminating a gas pipe with a naked flame, causing an explosion. The defendant had
previously searched a lower part of the pipe in this way. One ground on which the defendant
was held liable was that M’s negligence (which constituted a tort) was committed as part of
a joint enterprise with the defendant.
2. Liability for Torts of Agents

Although the results produced can be similar, the legal concept of agency is both narrower
and wider than that of vicarious liability. It is narrower in the sense that the law of agency
is primarily concerned with the circumstances in which one party may enter into a binding
contract on behalf of another, whilst vicarious liability is concerned with acts done in the
course of employment, a much wider concept. On the other hand, a person who performs a
task on behalf of another (which may have nothing to do with binding the principal to any
contract made by the agent) can also be described as an ‘agent’ of that other, irrespective of
whether there is an employer-employee relationship. ■>
Whilst vicarious liability restricts the acts for which the employer may be liable to those
within the course of employment, the law of agency uses a different limitation—that of
authority. A principal will only be liable for torts committed by an agent within the actual or
ostfensible authority of that agent, but the converse does not necessarily follow; all that can
be said with certainty is that torts committed by an agent within authority may make the
principal liable. There can, however, be an overlap between vicarious liability and agency. A
principal may be liable if an agent commits a tort in the course of entering a contract which
he has the principal’s authority to enter, but it is equally the case that, assuming an employ
er—employee relationship exists, the agent’s action will be within the course of employment,
and hence the principal is also liable under the rules relating to vicarious liability. Whether a
principal is generally liable for the torts of a non-employee agent acting within authority is a
difficult question beyond the scope of this chapter (see Atiyah, Vicarious Liability (London:
Butterworths, 1967), ch. 9), but where there is an employer—employee relationship, as a
general rule it can be asserted that the liability of the principal by the law of agency is sim
ply a specific application of the more general rules of vicarious liability (see Armagas Ltd
v Mundogas SA [1986] AC 717). It is for this reason that courts confronted with this issue
sometimes use the terms interchangeably. But the difference between the concepts should be
kept in mind: an employee who negligently injures another whilst working for his employer
is not an agent of the employer in the sense above (although note Morgans v Launchberry
[1973] AC 127, below) but the employer will none the less be liable if the conditions for the
imposition of vicarious liability are established.
There is, however, another situation where an agency relationship may be created at a
more general level. The grounds on which a person may be held to be the agent of another for
a particular purpose are difficult to state with certainty and have led to some confusion over
whether such liability is a primary or secondary liability. In Scarsbrook v Mason [1961] 3 All
ER 767 the defendant passenger was held liable for the negligent driving of the car’s driver

even though he had not incited or procured it. The purpose of the journey was a pleasure trip
to Southend and to assist this purpose the defendant contributed 4 shillings towards the cost
of petrol. Although some have viewed the case as an example of liability for a tort committed
as part of a joint enterprise (Atiyah, Vicarious Liability, 124), Glyn-Jones J decided that the
driver was the agent of the passengers (including the defendant) so it seems the liability was
secondary rather than the primary liability which attaches to joint participants. The dis
tinction is important and is recognised by Glanville Williams, Joint Torts and Contributory
Negligence (London: Stevens, 1951) where, in considering examples of joint liability, agency/
vicarious liability is distinguished from joint enterprise liability. In Scarsbrook, whilst the
liability of the passenger may be described as being joint, this should not be confused with a
primary liability: the passenger was jointly (and severally) liable in the sense of being liable
as well as the driver, but his liability arose from another’s (the driver’s) wrong in which he
was not a participant; hence the liability is secondary (and different from the primary liabil
ity attaching to participants in a joint enterprise).
Whether there were any grounds on which to hold the driver the agent of all the passen
gers is another matter (see S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150),
but the idea of the driver of a vehicle being the agent of another for this specific purpose has
a respectable lineage (Atiyah, Vicarious Liability, ch. 13, Ormrod v Crosville Motor Services
Ltd [1953] 1 WLR 1120; cf. Scott v Davis (2000) 204 CLR 333, where Gummow J of the High
Court of Australia thought the doctrine was based on a misunderstanding of nineteenth-
century cases). In Morgans v Launchbury [1973] AC 127 the defendant’s husband died in a
car crash in which several other passengers were injured. The car was owned by the defend
ant but was used by her husband to drive to work, but at the time of the accident it was being
driven by a friend of her husband as her husband had consumed too much alcohol to drive
safely and so had asked the friend to drive him home. The defendant was at home at the time
of the accident and had no knowledge of any of the events leading up to it, but it was held
that there was an understanding between the defendant and her husband that he would not
drive if he had had too much to drink. A majority of the Court of Appeal ([1971] 2 QB 245)
held the wife liable as the driver was her agent for the purpose of driving her husband home.
Lord Denning MR held that the owner of a car was responsible at common law for all injury
or damage done as a result of negligent driving by a driver whom he had permitted to use it,
and could only be excused if the car was being driven by the driver on an occasion on which
the owner had no interest and for which no permission had been given. He also held that, in
relation to secondary liability, the words ‘principal’ and ‘agent’ did not bear the connotation
which they have in the law of contract or in the business community but were used as short
hand to denote the circumstances in which secondary liability was imposed. However, the
House of Lords held that to establish the existence of an agency relationship it was necessary
to show that the driver was using the car at the owner’s request, express or implied, or on his
instructions, and was doing so in performance of the task or duty thereby delegated to him
by the owner. Using the car with the owner’s permission for a purpose in which the owner
had an interest or concern was not sufficient to establish vicarious liability. Hence neither
her husband when driving to work nor his friend when driving at the time of the accident
was the agent of the defendant. That this kind of agency is different from the traditional
principal—agent relationship is illustrated by the speech of Lord Wilberforce (at 135):
I accept entirely that agency in contexts such as these is merely a concept, the meaning and
purpose of which is to say 'Is vicariously liable' and that either expression reflects a judgment
of value— respondeat superior is the law saying that the owner ought to pay.

The utility of using a concept that has an established meaning in one branch of the law
(that of contract) for the purpose of imposing vicarious liability may be doubted (see
Reynolds (2001) 117 LQR 180; Handford (2001) 9 Tort L Rev 97; Del Pont, ‘Agency: defin
itional challenges through the law of tort’ (2003) 11 TLJ 68). Certainly there is no general
rule that someone who performs a task at the request and for the benefit of another is
that person’s agent so as to impose liability on the requestor. Whilst agreeing that the
term ‘agency’ is inappropriate, Stevens (2006) 122 LQR 201, 205 has argued that the rec
ognition of dual vicarious liability—which may make a person liable as an employer even
if there is no formal contract of service with the worker—supports a general principle of
attribution where one person carries out a task for the benefit of another, at least where
there is an element of control by the beneficiary over the identity and conduct of the per
son carrying out the task. However, it may be doubted whether the Court of Appeal in
Viasystems (extracted above, p. 818) would have reached the same conclusion if the worker
had not been an employee of anyone. The reasoning reflects the pragmatism of vicarious
liability: a formal transfer of the worker’s contract of employment does not determine of
itself whether the original or the new employer is vicariously responsible for the torts of
the employee. Accordingly, we remain of the view that the cases involving motor vehicles
are best seen as pragmatic attempts to ensure that victims of road accidents receive com
pensation from an insured party, although in practice the circumstances in which it will
be necessary to resort to the owner of the vehicle as opposed to the driver will be rare
(Atiyah, Vicarious Liability, pp. 134-5, Winfield & Jolowicz, para. 20-20). This was the
view of the High Court of Australia in Scott v Davis (2000) 204 CLR 333, where the major
ity refused to extend the doctrine to an aeroplane in circumstances where it appeared
that the owner of the plane neither had insurance cover for the accident for which the
plaintiff claimed nor was required to by law. The absurdity of extending the case law to
its logical conclusion is shown by the Irish case of Moynihan v Moynihan [1975] IR 192,
where the owner of a teapot was held vicariously liable for her daughter’s negligence in
pouring tea. For comment on Scott, see Reynolds (2001) 117 LQR 180, and Handford
(2001) 9 Tort L Rev 97.
3. Non-Delegable Duty of Care

Although an employer-employee relationship is required before the employer can be made
vicariously liable for the employee’s torts, in certain circumstances the employer may also
be held liable for the acts of a non-employee. The nature of the employer’s liability in these
circumstances is far from clear. Sometimes it is based on agency. It may also be based on the
imposition of a non-delegable duty of care placed on the employer in respect of the activity
that has been or is about to be carried out. In Alcock v Wraith & Others (1991) 59 BLR 16
Neill LJ recognised seven situations in which non-delegable duties had been imposed: (1)
statutory duties that could not be delegated; (2) withdrawal of support from neighbouring
land; (3) escape of fire; (4) liability under the rule in Rylands v Fletcher; (5) operations on the
highway which may cause danger to persons using the highway; (6) non-delegable duties of
an employer for the safety of his employees; and (7) cases involving extra-hazardous acts.
Does the following case fall under any of these?

Cassidy v Ministry of Health [1951] 2 KB 343

The plaintiff entered hospital for an operation on his left hand, and as a result of negligence
in the provision of post-operation care by Dr F, who performed the surgery, or by the house
surgeon, who attended the plaintiff in the absence of Dr F, his hand suffered permanent dam
age. The plaintiff sued the defendants for negligence in the post-operative treatment which
he received. The Court of Appeal unanimously allowed an appeal in favour of the plaintiff, the
majority holding that, as Dr F and the house surgeon were employed under contracts of ser
vice, the hospital was liable for the negligence of either of them, so it was not necessary for the
plaintiff to show which of the two was responsible for the admittedly negligent care. Denning
LJ reached the same result by a somewhat different route.
Denning LJ
Whenever they [the hospital) accept a patient for treatment, they must use reasonable care
and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by them
selves. They have no ears to listen through the stethoscope, and no hands to hold the knife.
They must do it by the staff which they employ, and, if their staff are negligent in giving the
treatment, they are just as liable for that negligence as is anyone else who employs others to do
his duties for him. What possible difference ip law, I ask, can there be between hospital author
ities who accept a patient for treatment and railway or shipping authorities who accept a pas
senger for carriage? None whatever. Once they undertake the task, they come under a duty to
use care in the doing of it, and that is so whether they do it for reward or not. It is no answer for
them to say that their staff are professional men and women who do not tolerate any interfer
ence by their lay masters in the way they do their work. The doctor who treats a patient in the
Walton F-lospital can say, equally with the ship’s captain who sails his ship from Liverpool and
with the crane driver who works his crane in the docks: T take no orders from anybody.' That
'sturdy answer,’ as Lord Simonds described it in Mersey Docks & Harbour Board v Coggins &
Griffith (Liverpool) Ltd [1947) AC 1, only means in each case that he is a skilled man who knows
his work and will carry it out in his own way. It does not mean that the authorities who employ
him are not liable for his negligence. The reason why the employers are liable in such cases is
not because they can control the way in which the work is done— they often have not sufficient
knowledge to do so— but because they employ the staff and have chosen them for the task and
have in their hands the ultimate sanction for good conduct— the power of dismissal....
[T)his court is free to consider the question on principle, and this leads inexorably to the
result that, when hospital authorities undertake to treat a patient and themselves select and
appoint and employ the professional men and women who are to give the treatment, they are
responsible for the negligence of those persons in failing to give proper treatment, no mat
ter whether they are doctors, surgeons, nurses, or anyone else. Once hospital authorities
are held responsible for the nurses and radiographers, as they have been in Gold's case [Gold
v Essex County Council [1942] 2 KB 293], I can see no possible reason why they should not
also be responsible for the house surgeons and resident medical officers on their permanent
staff. It has been said, however, by no less an authority than Goddard LJ in Gold's case that the
liability for doctors on the permanent staff depends 'on whether there is a contract of service,
and that must depend on the facts of any particular case.' I venture to take a different view.
I think it depends on this: Who employs the doctor or surgeon? Is it the patient or the hospital
authorities? If the patient himself selects and employs the doctor or surgeon ... the hospital
authorities are, of course, not liable for his negligence, because he is not employed by them.
Where, however, the doctor or surgeon, be he a consultant or not, is employed and paid, not
by the patient, but by the hospital authorities, I am of opinion that the hospital authorities are

liable for his negligence In treating the patient. It does not depend on whether the contract
under which he was employed was a contract of service or a contract for services. That is a fine
distinction which Is sometimes of Importance, but not in cases such as the present where the
hospital authorities are themselves under a duty to use care in treating the patient.
I take it to be clear law, as well as good sense, that, where a person is himself under a duty to
use care, he cannot get rid of his responsibility by delegating the performance of It to someone
else, no matter whether the delegation be to a servant under a contract of service or to an Inde
pendent contractor under a contract for services....
The truth Is that, in cases of negligence, the distinction between a contract of service and
a contract for services only becomes of importance when It is sought to make the employer
liable, not for a breach of his own duty of care, but for some collateral act of negligence by
those whom he employs. He cannot escape the consequences of a breach of his own duty, but
he can escape responsibility for collateral or casual acts of negligence If he can show that the
negligent person was employed, not under a contract of service, but only under a contract for
services. Take, first, an instance when an employer is under no duty himself— he Is riding pas
sively in a car along a road. He Is not under any duty of care himself to road-users, but the driver
is. If the driver is a chauffeur employed under a contract of service, the employer is liable for his
negligence, but, If the driver is a taximan employed under a contract for services, the employer
Is not liable. Take, now, an instance where an employer is under a duty himself. Suppose he
has a lamp which overhangs his shop door. He Is himself under a duty to his customers to use
reasonable care to see that it Is safe and he cannot escape that duty by^mploying an Independ
ent contractor to do it. He is liable, therefore, if the independent contractor fails to discover a
patent defect which any careful man should have discovered, and, in consequence, the lamp
falls on a customer, but he Is not liable if the Independent contractor drops a hammer on the
head of the customer because that is not negligence In the employer's department of duty. It
is collateral or casual negligence by one employed under a contract for services. The employer
would, however, have been liable if he had got his servant to mend the lamp and his servant had
dropped the hammer, because that would be negligence by one employed under a contract of
service. These distinctions are, however, of no Importance in the present case, because we are
not concerned with any collateral or casual acts of negligence by the staff, but negligence in
the treatment itself which it was the employer’s duty to provide ...
CO M M EN TA R Y
Although there are examples of non-delegable duties being imposed for torts other than
negligence (see Witting, ‘Breach of the Non-Delegable Duty: Defending Limited Strict
Liability in Tort’ (2006) 29 UNSWLJ 33), many of the cases involve the imposition of a non
delegable duty o f care so that liability arises only where the non-employee has been careless.
Modern attempts to extend the doctrine to other torts have met with little success (see, e.g.,
the refusal of the majority of the High Court of Australia in New South Wales v Lcpore (2003)
212 CLR 511 to impose a non-delegable duty in respect of intentional conduct; for criticism
see White and Orr (2003) 11TLJ 101).
Critics of liability for non-delegable duties have referred to it as ‘a disguised form of
vicarious liability’: Fleming, p. 433. Others, however, have stressed the differences between
conventional vicarious liability and liability for non-delegable duties; amongst other
things, vicarious liability does not require the employer to owe an independent duty to the
victim, an essential ingredient of liability for many non-delegable duties (see Stevens, ‘Non-
Delegable Duties and Vicarious Liability’ and Murphy, ‘Juridical Foundations of Common

Law Non-Delegable Duties’, both in Neyers, Chamberlain and Pitell (eds), Emerging Issues
in Tort Law (Oxford: Hart, 2007), chs 13 and 14 respectively). Some of this disagreement
stems from the different meanings of ‘vicarious liability’: undoubtedly breach of a non
delegable duty is—by definition—a different liability from that of an employer for the tort of
an employee, but, equally, the primary role of non-delegable duties has been to make one
party liable for the wrongdoing of another where the original party has not been at fault, a
result which imposes a form of vicarious liability on that party. Whether vicarious liabil
ity—in the narrow sense of an employer’s liability for the tort of an employee—and liability
for breach of non-delegable duties share more than a functional equivalence is a more diffi
cult question but there are at least some other similarities: the exercise of due care in the
selection of the employee, or of the person to whom the task is delegated, does not prevent
liability, and in both cases the conduct of the employee or delegate must be wrongful to
establish liability on the employer. Additionally, in historical terms, the theory of
non-delegable duties developed very substantially as a means of providing for an employer’s
liability for the negligence of an employee in cases where vicarious 1¡ability was precluded by
the (now abolished) defence of common employment (see pp. 541-2, above).
Stevens, above, suggests that breach of a non-delegable duty can be present in two-party
cases (involving just the party on whom the duty is imposed and the victim) hence wrong
ful conduct by a delegate is not an essential part of the claim, but it may be wondered why
the non-delegable nature of the duty is of any importance in these cases; the question is not
whether the duty can be delegated—it has not been—but whether the duty imposed on the
party has been discharged. Thus, if a stranger enters school premises and abuses a child
pupil, the liability of the school is not dependent on any question of delegation (unless secur
ity has been delegated to an independent contractor) but simply on whether the school has
exercised reasonable care to protect the students, which may include the implemention of a
system to ensure the security of the school grounds (cf. Stevens, above, p. 364).
Is liability for breach of a non-delegable duty an independent tort? Witting (op. cit.) argues
that it is, although the duties it protects are derived from negligence and nuisance. Such an
approach clearly differentiates the action from vicarious liability but it requires an accept
ance that the duties recognised by this new tort are substantively different from the under
lying torts which have formed the bases of these actions in the past (such as negligence
and nuisance). However, although one function of the action for breach of a non-delegable
duty is to ‘respond to the inadequacies in the reach of negligence’ (Witting, p. 39) it does so
by extending the class of persons who can be sued for the tort of negligence rather than to
protect a new kind of duty, and in this it mirrors closely the aim of vicarious liability. The
‘independent tort’ approach did not appeal to Kirby J in Leichhardt Municipal Council v
Montgomery (2007) 81 ALJR 686 at [73],
The significance of finding a non-delegable duty of care is that, as Denning LJ points out
in the extract, any negligence by a person employed to discharge that duty, be it servant or
independent contractor, in attempting to discharge the duty amounts to a breach of the duty
by the employer, ‘the breach of such a duty is a personal wrong by the employer. Many of the
categories of non-delegable duties date from the nineteenth century and apply to narrow
categories, established for a specific purpose to overcome a perceived injustice in the law. For
example, the non-delegable duty owed by an employer to his employees arose as a way of
avoiding the harsh consequences of the ‘common employment’rule (see Ch. 11). An employer
could not be vicariously liable for an injury caused to an employee by a fellow employee, but
could be if the duty was non-delegable because the liability was personal and not vicarious.
A similar rationale could justify the extracted case above, for it would seem arbitrary to

allow the plaintiff a claim against the hospital when the negligence was that of an employee
but not where an independent consultant was involved, especially where the patient may not
know or be able to do anything about the status of the person performing the operation.
The most open-ended of the cases where non-delegable duties have been imposed relates
to the performance of extra-hazardous activities. Exactly what this category embraces is
considered below.
G la n ville W illia m s , ‘L ia b ility fo r In d e p e n d e n t

C o n tra c to rs ’ [1956] CLJ 180
If the doctrine of non-delegable duty is no reason for, or even limitation of, vicarious liability
for contractors, the jurist is faced with the task of finding some rule underlying a series of deci
sions when no such rule was expressed in them. Most of the nineteenth century cases can be
restrictively explained as turning on the creation of dangers in the highway.... Yet even this
explanation, though perhaps the best that can be done, leaves the law fundamentally incom
prehensible. Almost the greatest danger that can be created on the highway is to drive an
automobile along it; yet there is no vicarious liability for the negligence of a contractor in his
manner of driving. Were it otherwise, a person who posted a letter would be liable for the neg
ligent driving of the Post-Office employee who is carrying the letter; and the passengers on a
bus would be vicariously liable for their driver....
[After considering some cases involving statutory functions, he continued:]
Irrespective of statutory power or duty, there is now vicarious liability wherever a contractor
' is employed to perform what Slesser LJ in Honey will & Stein v Larkin Bros [1934] 1 KB 102 called
‘bxtra-hazardous or dangerous operations’. The liability was held in that case to exist where a
photographer was employed to take a flashlight picture in a theatre, the magnesium flash caus
ing a fire in which the theatre suffered damage. It seems rather remarkable to regard the taking
of an indoor photograph, even with magnesium powder, as ’extra-hazardous or dangerous’; of
course it would be dangerous if performed negligently, but Is that fact sufficient to create liabil
ity for contractors? The equation of’extra-hazardous’ and’dangerous’ is also worthy of remark.
One would think that 'hazardous’ and 'dangerous’ are synonyms; if so, 'extra-hazardous'
must mean something specially dangerous. Even if one goes so far as to say that the use of
flashlight powder is ‘dangerous’, It is hyperbolical to describe It as ’extra-hazardous’. If this Is
extra-hazardous, we are left with no language to describe really dangerous conduct...
Surveying these various instances of liability for contractors, It may be said generally that
the law is quite unduly difficult to apply, and divided against itself without any reason. The
concept of 'extra-hazardous acts’ is not a suitable one for legal rules; the distinction between
delegable and nondelegable duties means that the whole law of negligence must be covered
by specific judicial decision (often with changes of judicial mind) before the extent of liability
can be stated; and the exception for casual negligence needs much clarification before it forms
the basis of prediction of judicial decision.
CO M M EN TA R Y
The exception for casual (or collateral) negligence mentioned by Williams is also noted
by Denning LJ in Cassidy. The non-delegable duty only extends to negligence by the

independent contractor in carrying out that duty and does not extend to collateral negli
gence. Commenting on the exception, Salmond & Houston (p. 466) write:
Probably the rule as to collateral negligence means nothing more than that the negligence required
to Impose liability upon the employer of an independent contractor must be negligence committed
In the doing of the act Itself which he is employed to d o .... If this is all that 'collateral negligence’
means, It Is only an obscure way of saying that an employer is only liable for acts which are within the
scope of the contractor's authority— which is obvious, but unhelpful In any particular case.
In Salsbury v Woodland [1970] 1 QB 324 the defendant employed an independent contrac

tor to fell a tree on his land, but as a result of the contractor’s negligence it fell across a road,
bringing down some power lines, and the plaintiff was injured in attempting to remove
them. There was no danger of injury to anyone if the tree had been felled carefully. The
Court of Appeal decided that the act was not extra-hazardous; if done with ordinary caution
by skilled men it presented no hazard to anyone. Nor did it come within the exception for
dangers created on a highway, and the Court of Appeal refused to create a new category for
work done near a highway. Is cutting a tree near a highway any less of a hazard than taking
a flashlight photograph with magnesium?
A less controversial application of non-delegable duties relates to fires. As long ago as 1401
it was held that the occupier of land was responsible for a fire lit by himself, his servants,
or his guests (Beaulieu v Finglam, extracted in Baker and Milsom, Sources of English Legal
History (London: Butterworths, 1986), p. 557). As Baker postulates, ‘Perhaps the standard
[of care] varied in fact from one type of case to another; fire was particularly feared in a
world of timber-framed buildings’ (p. 408). Whether the reasons for the rule still apply is
arguable, but it has been applied in recent times (H. & N. Emmanuel Ltd v Greater London
Council [1971] 2 AWER835). In BalfourvBartyKing[1957] 1 QB 496 the defendant employed
independent contractors to unfreeze some pipes, but they did so negligently with the result
that a fire was started which damaged the plaintiff’s adjoining premises. Even though the
contractors were not employed to light a fire (indeed the negligence consisted in using a
blow-torch in close proximity to flammable material), the Court of Appeal held the defend
ant liable for the contractor’s negligence in starting a fire. Would the same result have been
reached if, in attempting to unfreeze the pipes, the contractors had negligently caused them
to burst, flooding the claimant’s property. If so, why?
The most important context in which non-delegable duties operate today lies in the
employer’s duties to an employee, on which see Chapter 11.
Some attempts have been made to identify a common thread in cases where a non-delegable
duty of care has been held to exist. In Burnie Port Authority v General Jones Pty Ltd (1994)
179 CLR 520, a majority of the Australian High Court held that in most cases where a non
delegable duty was imposed, ‘[i]t will be convenient to refer to [the] common element as “the
central element of control”. Viewed from the,perspective of the person to whom the duty is
owed, the relationship of proximity giving rise to the non-delegable duty of care in such
cases is marked by special dependence or vulnerability on the part of that person’ (at 346).
In the context of occupiers (the position of the defendants in Burnie), this meant that a per
son who took advantage of the control of premises to introduce a dangerous Substance, to
carry on a dangerous activity, or to allow another to do one of those things, owed a duty of
reasonable care which extended to ensuring that care was taken. However, if this is correct,
a non-expert home-owner who employs an electrician to carry out repairs to faulty elec
trical wiring which, if the repairs are done negligently, might foreseeably cause damage to
another, is under a non-delegable duty, yet, if he does nothing, might also be liable for failing

to make the repairs. Does this put the homeowner in an impossible position? The result
might be avoided by arguing that the electrician’s task is not a dangerous activity, but, as
critics have noted, most jobs carried out with care are not dangerous per se; conversely any
task done with negligence poses danger. Perhaps it is not surprising that a later decision of
the Australian High Court (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313)
found, by majority, that a landlord did not owe a non-delegable duty of care to a tenant in
respect of electrical repair work to the premises carried out by an electrician.
Do you think dependence or vulnerability are suitable factors on which to establish a
non-delegable duty of care? See further Murphy (op. cit.), who argues that where the defend
ant’s enterprise creates a substantial risk to the class of which the claimant is a member,
and where the defendant has assumed a positive responsibility to protect the claimant from
harm, a non-delegable duty of care might be imposed (a view accepted by Kirby J of the
High Court of Australia in Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 686
at [117]—[121]).

Activity 13.1 - Lunney

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Course of Study: LLB - Tort Law - LA2001

Title author: Lunney, M.

Name of Publisher: Oxford University Press

Publication year, Volume, Issue: 2008

Page extent: 807 - 853

Source title: Tort law: text and materials

i. Development of and Justification for

The facts are not relevant to the extract.

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G la n ville W illia m s , ‘V ic a rio u s L ia b ility and th e M a s te r’s In d e m n ity ’

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P. S . A tiy a h , Vicarious Liability (L o n d o n : B u tte rw o rth s , 1 9 6 7 )

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Bazley v Curry (1999) 174 DLR (4th) 45 (Supreme Court of Canada)

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ii. The Employer-Employee Relationship

Market Investigations v Minister of Social Security [1969] 2 QB 173

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In considering the facts It is a mistake to treat as decisive a reservation of control over

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In Bank voorHandelen Scheepvaart NV vSlatford [1953] 1 QB 248 at p. 295, Denning LJ said:

[Cooke J considered the contract in question and continued:]

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R. K idner, ‘V ic a rio u s L ia b ility: For W h o m S h o u ld th e “ E m p lo ye r”

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Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd

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hi . The Course of Employment

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1. Carelessness and the Motive for the Employees Act

Century Insurance Company Limited v Northern

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Lord Porter agreed with Viscount Simon and Lord Wright.

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2. Employee’s Use of Vehicles on Unauthorised Journey

Smith v Stages [1989] AC 928

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3. Employee Acting Contrary to Express Instructions

Rose v Plenty [1976] 1 WLR 141

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4. Criminal Acts of the Employee

Lister v Hesley Hall Ltd [2002] 1 AC 215

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[After considering Rose v Plenty, extracted above, his Lordship continued:]

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Lord Hobhouse of Woodborough

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In Salsbury v Woodland [1970] 1 QB 324 the defendant employed an independent contrac