Chapter 13 - Vicarious Liability

VIDEO TRANSCRIPT
Chapter 13 - Vicarious Liability.
Vicarious liability is a legal device according to which an employer is made liable for torts
committed by his employee in the course of employment. This is not to be confused with
employers’ liability, which concerns the duty of care in negligence which an employer owes for
the health and safety of his workers.
It is a form of strict liability because the employer himself may not be personally at fault. The
justifications for vicarious are numerous. The more important are:
• the ‘benefit and burden’ principle, meaning that the employer has established a business
and derives the economic benefits of commercial success. The employer ought therefore
to be liable for damage caused by the business.
• the principle of vicarious liability means that the employer is more likely to be careful in
selecting employees, to train them correctly and to provide incentives to encourage
them to take care.
• the ‘deep pocket’ argument, meaning that the employer is better able to pay
compensation and is also more likely to have liability insurance. See JGE v Portsmouth
Roman Catholic Diocesan Trust (2012)
The action in vicarious liability has three requirements:
1. A tort has been committed;
2. By someone in an employment relationship with the defendant, and
3. It occurred in the course of employment.
In many situations, the tort will be negligence but it can be any tort including the deliberate
torts of assault and battery: Mattis v Pollock (2003) or breach of statutory duty as in Majrowski v
Guys and St Thomas’ (2006) SLIDE 5
More legally challenging are the second and third requirements and it is here that there have
been a number of recent decisions the ratios of which which you should master. Various
Claimants v Catholic Child Welfare Society (2012) is a key Supreme Court case which sets down of
two-stage process for determining the correct relationship for vicarious liability:
1) Whether the relationship was one which was capable of giving rise to vicarious liability.
2) Whether there was a sufficiently ‘close connection’ between the wrongful act and the
employment.
The employer/employee relationship has traditionally been signified according to various
determinants such as control or, later, ‘integration’ and ‘economic reality’. There were also
thought to be meaningful distinctions between the categories of employee and independent
contractor, although this is now in doubt.However in today’s world there are many styles of

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working which don’t find accurate counterparts in the old approaches and the law has
developed to accommodate this. Priests, for instance, don’t have conventional contracts of
employment but rather are seen as ‘office holders’. In JGE v Trustees of Portsmouth (2012) the
Court of Appeal held that this status was ‘sufficiently akin to employment’ to found vicarious
liability. A similar approach was adopted in Cox v Ministry of Justice in 2016, where a tort by an
inmate working in a prison kitchen was held to have been committed in a relationship which
was in some ways closer than that of employment, despite the very low pay and absence of a
contract.
That we are seeing an extension of the type of relationship giving rise to vicarious liability is
reinforced by Armes v Nottingham CC (2017) and Various Claimants v Barclays Bank (2018) where
the tortfeasors were foster parents and a doctor conducting pre-employment checks,
respectively. A significant aspect of the decision in Barclays Bank was the courts assertion that
there is no longer a conclusive ‘defence’ for the independent contractor.
The third requirement for vicarious liability is that the tort must take place in the course of
employment. Obviously it would be unjust to hold an employer for all wrongs committed by
their staff, in any context. The concept of ‘course of employment’ has been rigorously tested in
the courts; for instance in the key cases of Century Insurance v Northern Ireland Road Transport
Board (1942) and Rose v Plenty (1976). Situations which have given rise to uncertainty include
meal breaks, detours, express prohibition and criminal conduct. As with the employment
relationship component, recent years have seen higher court decisions which have been
imaginative and ultimately expansive of vicarious liability.
In Lister v Helsey Hall (2001), the House of Lords grappled with the task of fitting institutional
child abuse into the framework of the traditional ‘Salmond test’ for course of employment. How
could deliberate child abuse be described as either: ‘(a) a wrongful act authorised by the
[employer], or (b) a wrongful and unauthorised mode of doing some act
authorised by the [employer]’? Here, jurisprudence from the Canadian Supreme Court was
adopted and the ‘close connection’ test imported; ie whether the wrongful act was so closely
connected to what he was employed to do that it would be fair just and reasonable to hold the
employer liable.
Another type of employee behaviour is criminal violence. Traditional approaches are seen in
Warren v Henlys (1948) and Kepple Bus Co Ltd v Sa’ad bin Ahmad (1974) but the current law is best
represented by Mohamud v WM Morrison Supermarkets (2016). Here, a petrol station attendant
was held to be in the course of employment when he left his kiosk and followed a customer to
his car in order to verbally and physically assault him. The Supreme Court ruled that the
employee’s behaviour constituted an unbroken sequence of events which remained within the
‘field of activities’ assigned to his position. For an interesting recent case (currently under appeal
to the Supreme Court) concerning criminal breach of data protection, see Various Claimants v
WM Morrison Supermarkets (2018).

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