VICARIOUS LIABILITY

Definition: Vicarious liability / “respondeat superior” (Latin) / “imputed liability” is where one party is
held liable for the torts of another. It arises because of a specific relationship between the parties.
(‘Vicarious’ - ‘on behalf of another’) (Usually arises in employer/employee relationships but can arise in
other situations as well)
Vicarious liability is not a tort itself, but a determination of who is potentially liable /it’s a way of suing
someone else other than the tortfeasor.
It is strict liability so there is no need to show fault on the part of defendant. The employer will be strictly
liable, even in the absence of fault.
It is also a form of secondary liability, i.e. the tortfeasor is not the one sued.
An employer can be sued both directly and vicariously for the same event.
In vicarious situations, there are often joint tortfeasors, such as employer & employee, who are jointly
liable.
Justifications:
1) ‘Deep pockets’ argument - Employer in better financial position to pay compensation (will be insured,
therefore will be able to pay). Under the Employers’ Liability (Compulsory Insurance) Act 1969, all
employers are obligated to obtain compulsory insurance for their employees.
2) Employer exercises both control and supervision over its employees.
3) An employer may be careless in selecting negligent employees and should suffer the consequences
thereof.
4) Benefit/burden theory - Benefits and burdens of employees - Employer should have the burden if they
have the benefit. The employer gets benefit from employee’s actions, so should bear burden if something
goes wrong.
5) High standards - employers will make efforts to see that employees don’t commit torts, will encourage
high standard of care.
6) Vicarious Liability encourages better training, supervision and control of employees.
7) Loss distribution.
The requirements that must be established for a successful claim involving the doctrine of vicarious liability
(for an employer/employee relationship):
1) Claimant must show that a tort was committed by the employee (basis of the claim, dealing with a tort
as opposed to a criminal offence)
2) Claimant must show that the employee is in fact an employee of the employer (employee-employer
relationship attracts statutory protection, an independent contractor will not attract the statutory protection)
3) Claimant must show that the tort occurred during the course of employment (as opposed to “going on a
frolic of your own”).
Who is an employee? - three tests to determine whether the tortfeasor is an employee:
1) Control test - asked whether the ‘Master’ had the right to control what was done and the way it was
done. examines the degree of control the employer has over the employee – the more control the
employer has over the relationship, the more likely defendant 1 will be deemed an employee of the
employer.
CASE: Yewens v Noakes (1880) - “person who is subject to the command of his master as to the manner
in which he shall do his work.”
Test 1 is not suitable for ‘highly skilled workers’ (surgeons, head engineer, etc.)
CASE: Cassidy v Ministry of Health (1951) – the claimant lost the use of his hand after receiving
negligent treatment from doctors and nurses who were contracted employees of the defendant.
Sommervell LJ – test is not adequate as it would lead to the exclusion of many employment
relationships. Denning LJ – test is inadequate. ‘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.’
Test 1 may have also lost its relevance.
CASE: Argent v Minister of Social Security (1968) – an actor who worked part-time as an art
teacher and followed no set syllabus with only occasional visits from the Head of the Department
was held not to be an employee as the school did not exercise sufficient control over him.
2) Integration /Organisation test – (first proposed by Denning LJ in Stevenson, Jordan and Harrison v
MacDonald and Evans (1952)) - examines whether or not the worker is fully integrated within the
organisation, or merely auxiliary to it /examines how ‘integral’ the job of the employee is to the
organisation/ company.
However, problems arose with this test over time as employer/employee relationships evolved.
CASE: Whittaker v Minister of Pensions (1967) - the claimant was a trapeze artist, contracted to a circus,
who was injured during one of her performances. In order to decide whether she was an insurable
employee, the court looked at her wok and whether it was integral to the circus.
Test 2 is not suitable because sometimes despite the fact that defendant 1’s job is not integral to
the organisation, he may still be an employee.
3) Economic reality test – who owns the means of production, who benefits from the task being
executed.
CASE: Ready Mixed Concrete v Minister of Pensions (1968) – McKenna J - three-pronged
formulation: (1) look at control; (2) look at remuneration- how are they paid? (3) other provisions
of contract.
Test 3 is relied upon more than test 1 and 2.
 4) Akin to employment test – circumstances where the ‘employee’ isn’t exactly an employee (pseudo
employee).
CASE: JGE v Trustees of Portsmouth Roman Catholic Diocesan Trust (2012) - C sought
damages for sexual abuse and rape carried out by a parish priest whilst living in a children’s
home run by nuns. It was held that the priest was not an employee of the Roman Catholic diocese,
but the court radically extended vicarious liability to a relationship ‘akin to employment’.
The test: whether the relationship of the diocese and the priest was so close in character to one of
the employer/employee that it was just and fair to hold the diocese vicariously liable.
CASE: Various Claimants v Institute of the Brothers of Christian Schools (2012) (‘the Christian
Brothers’ case) - The Institute, an unincorporated association of lay brothers of the Catholic
Church, was held vicariously liable for the acts of brothers supplied to teach in a residential
school who abused pupils.
Lord Phillips - the policy underlying vicarious liability ‘is to ensure, so far as it is fair, just and
reasonable, that liability for a tortious wrong is borne be a defendant with the means to
compensate the victim’.
CASE: Cox v Ministry of Justice (2016) - applied the approach form Christian Brothers case to
find the prison service to be vicariously liable for the torts of a prisoner working within the
catering section of HMP Swansea. Mrs Cox was the catering manager, injured when a prisoner
who worked for her in the kitchens, negligently dropped a sack of rice onto her back as she was
leaning forwards.
A person will be seen as a ‘pseudo employee’ and the employer will be held vicariously liable if:
(1) the activity was carried out on behalf of the defendant.
(2) the activity has to be integral to defendant’s business.
(3) the defendant created the risk of the tort being committed.
(4) it is fair, just and reasonable to impose liability on defendant.
CASE: Armes v Nottinghamshire County Council (2017) - questioned whether a local authority
was vicariously liable for the physical and sexual abuse perpetrated by the foster parents into
whose care they placed the claimant when she was seven years old.
Lord Reed - “The general principles governing the imposition of vicarious liability were recently
reviewed by this court in Cox v Ministry of Justice. As was said there, the scope of vicarious
liability depends upon the answers to two questions. First, what sort of relationship has to
exist between an individual and a defendant before the defendant can be made vicariously
liable in tort for the conduct of that individual? Secondly, in what manner does the conduct
of that individual have to be related to that relationship in order for vicarious liability to be
imposed? The present appeal, like the case of Cox, is concerned only with the first of those
questions.”
CASE: Barclays Bank plc v Various Claimants (2020) - the Court of Appeal held that the
defendant bank was vicariously liable for the sexual assaults against prospective staff committed
by a doctor, who was an independent contractor. The factors identified in the Cox decision may
 help to identify a relationship analogous to employment where it is not clear whether or not the
tortfeasor is carrying on their own independent business. However, ‘where it is clear that the
tortfeasor was carrying out his own independent business’ it was not necessary to consider
the criteria. The Supreme Court re-established what is effectively a ‘independent contractor’
defence.
Lending /Borrowing Employees /Situations where there appears to be more than one employer – sometimes
a situation may arise where one employer (a), lends his employee to another employer (b) and the employee
commits a tort. It then becomes necessary to determine which employer is liable.
General Rule: Original employer remains liable.
CASE: Mersey Docks and Harbour Board v Coggins and Griffiths (1947) - the Harbour Board lent one of
their crane operators and a crane to another company when he negligently injured an employee of the other
company. The court held that the Harbour Board was the liable employer as they paid the employee’s salary
and retained the power to sack him. The court also laid down three principles to consider:
1) The terms of any contract between the two employers are not decisive.
2) The permanent employer is presumed to be liable, unless they can prove otherwise.
3) Where employees alone are lent, it is easy to infer that the hirer i.e. employer (b) is the employer.
If equipment as well as the employee is lent, then inference will prove more difficult as employer
(b) may not have control over the way in which the lent /borrowed equipment is used.
Dual vicarious liability in rare circumstances - Dual liability might occur where an employee is lent or
transferred to work for another and both employers are entitled, and obliged, to control the employee’s
actions so as to prevent the negligent act.
CASE: Viasystems v Thermal Transfer (2005) - Rix LJ - “What one is looking for is a situation where the
employee in question 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…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?”
The tort needs to be committed within the course of employment – Salmond - “A master… is liable even
for acts which he has not authorised, provided that they are so connected with acts which he has authorised
that they may be rightly regarded as modes – although improper modes – of doing them.”
“An act will be in the course of employment under the test if it is (a) a wrongful act authorised by the
[employer], or (b) a wrongful and unauthorised mode of doing some act authorised by the [employer].”
CASE: Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942) - a tanker driver who,
while delivering petrol, lit a cigarette and carelessly discarded a match causing a fire, was held to be acting
within the course of his employment. It was said that the act of lighting the cigarette, while not in itself
connected with his job, could not be looked at in isolation from the surrounding circumstances.
CASE: General Engineering Services v Kingston and St Andrew Corporation (1989) - firemen operating a
‘go-slow’ policy who took five times as long as they normally would have done to drive to the scene of a
fire were acting not within the course of employment. The Privy Council indicated that it was as though
they had simply ignored the call which would not be a mode of performing their duties.
CASE: Lister v Hesley Hall Ltd (2001) - the House of Lords said that the proper approach to the course of
employment is no longer to ask the question whether the acts were modes of doing authorised acts in the
course of employment.
‘Frolics of their own’ - The employer is not liable where the employee’s act is wholly unconnected to the
job for which they are employed. In such circumstances the employee is said to be ‘on a frolic of his own’.
CASE: Joel v Morrison (1843)
CASE: Storey v Ashton (1869) - the defendant’s employees had been instructed to deliver wine and to bring
back some empty bottles to the employer’s offices. On the return journey one of the employees persuaded
the other that, since it was by then after hours, they should set off in a different direction to visit some
relatives. The employer was not liable for an injury caused by the employee because, at the time of the
accident, the driver was not acting in the course of employment; he was on a new and independent journey
which was entirely for his own business.
General Rule: An employee travelling between home and work will not generally be in the course of
employment. However, an employee travelling in the employer’s time from home to a workplace other than
the regular workplace or between workplaces will be within the course of employment.
CASE: Smith v Stages (1989) - Two employees worked without sleep to finish a job two days early and
decided to drive home as soon as they were finished when the employee who was driving crashed into a
wall injuring himself and his colleague. The second employee sued. The House of Lords found the
employers liable. Lord Goff said the fact that the men were travelling back early was immaterial since they
were still being paid wages to travel there and back. Lord Lowry thought the crucial point was that the
employees were ‘on duty’ at the time of the accident.
Expressly prohibited acts - The outcome is then said to depend on whether the prohibition limited the sphere
of employment (in which case the employee is not in the course of employment) or limited the manner in
which the employee carried out duties (in which case the employee is still in the course of employment).
CASE: Limpus v London General Omnibus Co (1862) - a bus driver was instructed not to race with or
obstruct the buses of rival companies. He disobeyed this instruction and caused an accident in which the
plaintiff’s horses were injured. Despite the prohibition, the employers were liable since this was simply an
improper method adopted by the employee in performing his duties.
CASE: Rose v Plenty (1976) - the employer was liable when, despite his employer’s express instruction
not to do so, a milkman employed a boy aged 13 to help him on his milk round. Due mainly to the milkman’s
negligent driving the boy was injured. In the Court of Appeal, Lord Denning said the driver was still within
the course of employment despite the express prohibition because he was still acting for the master’s
purposes, business and benefit.
Deliberate /criminal acts – the Salmond test is not suitable in cases where the tortfeasor does an act that is
out of the scope of his employment.
CASE: Trotman v North Yorkshire CC (1999) - the test was applied in the case of a teacher who used
school trips to commit sexual assaults on a dependent child. It is difficult to describe such conduct as an
unauthorised mode of carrying out the deputy headmaster’s duty. The Court of Appeal refused to hold the
employer vicariously liable on the ground that the perpetrator was not acting in the course of employment;
his conduct was said to be a negation of the task of caring for the plaintiff and not an unauthorised mode of
carrying out an authorised task. This case has now been overruled by the House of Lords.
The Lister Test /The ‘Close Connection Test’
CASE: Lister v Hesley Hall Ltd (2002) - The House of Lords held that vicarious liability can arise for
unauthorised, intentional wrongdoings committed by an employee acting for his own benefit, in so far as
there exists a connection between the wrongdoings and the work for which he was employed to render it
within the scope of employment.
CASE: Dubai Aluminium Co Ltd v Salaam (2003) - the principle in Lister was extended to include not just
intentional torts, but also breaches of equitable duty which were closely connected with the acts that the
employee was authorised to do in the course of the firm’s business.