vicarious liability

• vicarious liability definition 


  holding employers responsible for the tort of their employees
• elements 


  • employment status
  • there must be a close connection between the tort and the employment
• employment status 


  there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other. there is no liability for the torts of independent contractors (Barclays Bank)
• three ways this status could be established under Barclays Bank v Various Claimants 


  • traditional employee
  • akin to employment
  • unclear cases - Christian Brothers
• traditional employee 


  if the conventional distinction between contracts of employment is clear, then this is conclusive

  • contract of employment or contract of services
  • with a contract of employment, the work is integrated and an integral part of that business
  • with contract for services, the work is ancillary
• possible tests to apply for traditional employees

  • control test (coggins v Griffiths) - employer controls the work and the way in which it is done
  • economic reality test (ready mixed concrete) -

  1. employee provides work in return for payment
  2. employee agrees they will work under the control of the employer
  3. all other circumstances are consistent with a contract of employment
• akin to employment


  • if they are not a traditional employee, the relationship may still be akin to employment
  • this means it is functionally analogous to an employment relationship
• unclear cases - Christian brothers

  • the employer is better able to compensate
  • tort committed as a result of activity being taken by the employee on behalf of the employer
  • the activity was likely to be part of a business activity
  • the employer created the risk of the tort occurring
  • the employee was under the control of the employer (Cox v Moj)
• there must be a close connection between the tort and the employment


  WM Morrisons Supermarkets 2020

  the question to ask is 'whether the wrongful conduct of the employee was so closely connected with the acts the employee was authorised to do, that for the purposes of liability of the employer to the third party, it may fairly and properly be regarded as done by the employee while acting in the course of employment'
• a tort could be either 


  • a traditional tort
  • an intentional tort
• traditional tort (negligence)


  D will be liable if the act was an

  • authorised act (Poland v Parr)
  • authorised act done in an unauthorised way (Limpus)
• intentional tort 


  in cases involving the abuse of children, the courts have emphasised the importance of criteria particularly relevant to that form of wrongdoing, such as the employer's conferral of authority on the employee over the victims they abused
• acts that are not within the course of employment 


  if the employee was on a 'frolic of his own' - conduct falls outside the course of employment

  • (Storey v Ashton) - a new and independent journey entirely for his own business
  • things completely outside the employee's duties (Beard v London General Omnibus)
  • giving unauthorised lifts in a company vehicle (Twine v Beans Express)
  • going for lunch at a pub in the work's van (Hilton v Thomas Burton)