Vicarious Liability

• Vicarious liability is when employers are liable for the tort of their employees that were committed during the course of employment.
• There are five reasons for vicarious liability:

  1. Employers are more likely to have the means to compensate
  2. Employee's activity is likely to be part of the business activity of the employer
  3. Employing the employee to carry out the activity. automatically creates the risk
  4. Employee will be under the control of the employer
• There are three questions to help establish vicarious liability:

  1. Was a tort committed?
  2. Was the tortfeasor an employee?
  3. Was the employee acting in the course of employment when the tort was committed?
• Rules for establishing when there is a relationship of employment can be found in Ready Mixed Concrete v Minister of Pensions.
• Ready Mixed Concrete v Ministry of Pensions:

  1. The work is provided in consideration of a wage
  2. The tortfeasor is under the other party's control
  3. The other terms of the agreement are consistent with it being a contract of employment (provisions for holidays)
• There is a test called the "Salmond test", an employer will usually be liable for:

  • Wrongful acts which are authorised by the employer
  • Acts which are wrongful ways of doing things, even if the acts are expressly forbidden
• When there is doubt about "akin to employment", the courts will use a "close connection test".
• The close connection test will look at the closeness between the work the employer was employed to do and the tortious act.
• There are two questions to ask for a "close connection test":

  1. What was the nature of the job?
  2. Was there a sufficient connection between the position in which the employee was employed and the wrongful conduct?
• Morrison Supermarkets v Various Claimants: Employee's conduct did not meet the "close connection test" and that he acted on his own personal conduct, not one of the business.
• When a defendant is acting outside their course of employment, they are acting "on a frolic of their own".

  Joel v Morison
• The principles of vicarious liability is clearly where no fault has to be proven by the claimant on the employer at the same time of the commission of the tort.
• If the person who commits the tort is employed and acting in the course of employment, the employer will be liable without further proof.
• The employer could be at fault in a number of ways:

  1. The employer has chosen an employee who is liable to, or who could, commit a tort at work.
  2. The training for the job may be inadequate or inappropriate.
  3. The employer should have supervised the employee more effectively
• However, it's likely that employers will want to allow their employees, especially the more experienced ones, to have greater freedom to do their work.