Vicarious Liability

• Vicarious


  Acting or done for another
• Ready Mixed Concrete (Southeast) Ltd v Minister of Pensions and National Insurance (1968)


  • This case sets out the 3 conditions for an employment relationship:
• Employee


  • Set hours of work
  • Dress code
  • Paid a regular salary
  • A manager directs how work is done
  • Health and safety training is provided
  • Tax and pension contributions are deducted
  • Uniform provided
  • Enter a contract of service
  • Maternity/ paternity leave is available
  • Have dismissal/ redundancy rights
  • Tax and pension contributors are deducted
• Self-employed


  • Work from home
  • Use own tools/equipment
  • Holiday is taken at a time of choice
  • Keep own records of income and outgoing
  • Provide a contract of service
  • Can employ others when needed
  • Have liability insurance
  • Invoices are sent for completed work
• For the employer to be liable the tort must occur 'in the course of employment'
• The court has to decide in each case whether or not an action is in the course of employment
• In recent years the courts have had to develop their approach to vicarious liability due to changes in working relationships
• The court now asks

  • Was the relationship between the employer and employee 'akin to employment'?
  • Was the commission of the alleged tort 'closely connected' to the employment?
• Criteria for a relationship 'akin to employment'

  • The employer is more likely to have the means to compensate the victim and can be expected to have insured against that
  • The tort will have been committed because of an activity being done on behalf of the employer
  • The employee's activity is likely to be a part of the business's activities
  • The employer, by employing the employee, will have created the risk of the tort
  • The employee will, go to a greater or lesser degree, have been under the control of the employer
• Close or sufficient connection

  1. What function or 'field of activities' have been given to the employee?

  2. Was there a connection between the position in which he was employed and the wrongful conduct to make it right that the employer should be held liable?
• If the tortfeasor is an independent contractor, the business alleged to be their employer will not be liable