Vicarious liability

‘It has been observed that in asking whether a relationship is “akin to employment”, the courts
look at the features of the traditional relationship that make it fair, just, and reasonable to impose
vicarious liability on the defendant, despite the lack of a contract of employment.’ Explain this
statement and illustrate how it has been reflected in the development of case law.

Introduction

The tort law compensates the claimants for their losses suffered however, there exists a unique
concept of vicarious liability in the tort law where an employer is held liable due to negligence of the
employee. The courts have given certain rationale behind that i.e. deep pockets, control and others
which shall be discussed below. Nonetheless, the duty under vicarious liability was initially
established through the control test and Salmond test where employers had to compensate for the
employee’s negligence however the law was changed due to policy reasons to provide a justice and
ensure fairness due to which courts complicated the concept of employee and akin to employee
however, later the supreme court in (Barclays Bank case) has clarified the law therefore we agree
with the statement that courts used to make the decision just and fair but the law has been changed
now. Therefore, the essay below shall discuss the concept of vicarious liability and rationale behind it
and later shall access how the courts determined the employee and akin to employee.

As mentioned above, vicarious liability is an inimitable notion of tort law where the duty can be
owed by the employer for the negligence of his employee. This concept entirely goes against the
imperative concept of corrective justice of tort law i.e. the liability should be imposed on one, whose
actions are regarded as blameworthy by the tort law. Whereas, the doctrine of vicarious liability does
not hold the employee liable for the negligence but his employer and the courts had not set any
boundaries making the law very wide and opening the floodgates. Lord Nicholls provides that “a
doctrine that is at odd with the general approach of the common law”. However, the tort law
should always be narrow as there should be no crushing liability.

Nonetheless, the courts have expanded this doctrine due to policy reasons where the primary
rationale behind this concept is the deep pockets i.e. the employer is in a better position have better
means to compensate where an employee does not have that much resources. Moreover, there exist
the theory of enterprise i.e. if the employer is getting benefit in the business due to employee’s good
performance then he should also face the losses and there exist a control test i.e. in what so ever
way either lesser or greater, the employee is eventually in the control of the employer. Additionally,
the concept of delegation is also a reason behind vicarious liability i.e. the employer has appointed
such person on his own and he would be working on his behalf, lastly the creation of risk is also a
policy factor considered by the courts for expanding the vicarious liability. By creation of risk, courts
mean that the employer had created the risk by appointing such an employee and should have
appointed diligently. It can be stated that the concept of vicarious liability was introduced and
expanded for promoting social justice and ensures that the people are compensated by those who
can afford to do so and does not create a burden on average person. Moreover, by existence of this
concept, the business ensures that their employees follow the set of principles and follow the same
by themselves to avoid the liability however still the concept has been criticized as Professor Paula
Giliker provides “The doctrine of vicarious liability is nothing if not controversial”.

The above paragraph reflected that the law for vicarious liability is quite wide due to certain reasons
however, the law always need to be defined and since it was not clearly defined and no boundaries
were set out, the people could have took unfair advantage. Nonetheless, to establish the liability
under the vicarious liability firstly, the alleged tortfeasor has to be an employee of the defendant,
determining the same was a challenge for the courts. Initially, the courts applied the control test
which was based on the facts where the employer has to such control of master and slave. Such test
was applied in the case of (Cassidy v Ministry of Health [1951]) where the ministry was held liable
for the negligence of doctor. Moreover, the concept of borrowed employees emerged for which
court has provided that the employer will be the one who has more control and if there is joint
control then there will be joint liability. In the (Mersey Docks and Harbour Board v Coggins and
Griffith [Liverpool] [1947]), a driver was hired from stevedores firm who were the actual employers
but the defendant had borrowed the employee, however the court again used the control test and
considered the factors which included the paying of wages and defendant was held liable. Till here
the law was quite clear and was based on the facts and to determine the same there was need of the
contract of service as in the (Cassidy v Ministry of Health) the doctors were under the contract of
service with the ministry and therefore ministry was held vicariously liable. However, the (JGE v
English Province of Our Lady of Charity) case introduced the concept of a kin to employee, the case
involved a priest who is generally not considered as an employee however since he had conducted
the sexual assault and the courts had to establish the liability on the company for hiring him,
therefore the courts introduced concept of a kin to employee and held the company liable.

A similar approach of the court was seen in the (Cox v Ministry of Justice), where there was no
sexual abuse however, a jailor was generally asked for cooking food while he was in the period of his
punishment and was never paid for it but still he was considered as a kin to employee and the
authorities who had asked for cooking were held liable on the negligence made by the prisoner
which reflects that the law has been expanded and had opened floodgates due to policy reasons for
Cox case, Professor Paula Giliker provides “Cox is significant in contemplating a wider application”.
Similar approach was seen in the case of (Barclays Bank v Various Claimants) where the doctor used
to treat the patients who came on the behalf of the bank and the bank used to pay the fees, however
doctor was not an employee, he used to be on his own, but again as there was a case of sexual
abuse, due to policy reasons courts applied the concept of kin to employee thus, reflecting that the
test is not a factual rather a policy based and courts consider akin to employee to make the decision
just and fair and impose liability even if there is no contract of employment. However, the Supreme
Court later over turned the decision of Barclay and held that the test is still factual and the bank did
not exert any control over the doctor hence bank was not liable and policy would only be seen in
exceptional cases, thus SC narrowed and defined the law to some extent.

The above discussions reflected the law of determining whether the person is employee or not
where it would be crucial to mention that the second requisite to establish the liability under the
vicarious liability is that the tort committed by the employee should be in the course of employment
for which initially the “Salmond test” used to be applied where two situations would be considered
as in the course of employment i.e. a wrongful act permitted by the employer or wrongful mode of
an authorized act. Meanwhile, in the (Lister v Hesley Hall Ltd) a warden had sexually assaulted a
student and the employer could not be held liable under the Salmond test however, the courts
introduced the close connection test i.e. the employer gave the opportunity to the employee for
such conduct, though it was an absurd law but still the courts accepted it due to policy
considerations Professor Paula Giliker provides “Provided a connection exists, vicarious liability will
bite”. Further this, close connection test was further expanded in the (Mohamud v WM Morrison
Supermarkets 2016), the court introduced a two stage test i.e. close connection between the tort
and job and secondly to determine the field of activity. Since, the law had become wide and absurd,
thus was criticized worldwide, and in (Morrison supermarkets and various claimants 2020) an
employee had uploaded the data of other employee online after accessing the database, the
employer was held liable under the expanded close connection test. However the decision was much
criticized as it was based on policy rather facts and the courts had stance that the vicarious liability is
based on the facts, later this case was appealed in the Supreme Court, where the supreme court did
not overrule the Mohamud case rather was of the opinion that whole world under misunderstanding
and had misinterpreted the test and held that the close connection test is based on the facts and not
on the policy and only facts will be considered in the future cases. The court did narrowed the law
however had to overrule the Mohamud decision which they did not nonetheless the law has become
little certain then before.

In view of the above discussions, it can be concluded that the law for vicarious liability was
introduced due to multiple reasons including the deep pockets so that the aggrieved can be
compensated by those who can afford. However, there was a major uncertainty in the law, the initial
tests were factual however the courts started to hold the employers liable on the policy basis even if
there was no contract of employment, the courts created the concept of akin to employment to
deliver the justice however this created uncertainty. Thus the law was clarified by the supreme court
on the appeal of Barclays case.