Evaluation of Vicarious Liability

• Vicarious Liability (VL)


  Employer is liable for the acts of their employees
• VL is justified because

  It gives the victim a just and practical remedy - the claimant is more likely to receive compensation by suing the employer
• The employer is more likely to have the financial means to pay the claim

  This was shown in the cases of Limpus v London General (1862) and Rose v Plenty (1976)
• The claimant is innocent, and the aim of tort law will be met by providing them a remedy

  The employer is likely to have insurance which will pay any damages awarded
• In practice


  1. The employer will only be paying for the insurance cover and any excess, not the actual damages awarded

  2. Insurers will spread the cost to themselves among all their policy holders, this makes the burden of paying out compensation manageable

  3. If an employer makes a claim, their premium in the future may increase which could act as a deterrent, encouraging them to improve their recruitment, training and supervision of staff

  4. The employer receives a benefit from work being completed by employees so it is fair that they should accept the liabilities

  5. The employers can minimise the costs of complying with safe working practices by increasing their costs to customers

  6. Despite the burden of VL, it will only be enforced in very specific circumstances
• The principle of VL appears to contradict the concept of fault based liability

  The employers may have taken all steps to choose, train and supervise their employees' but will still be liable for their acts/omissions
• The principle of VL appears to contradict the concept of fault based liability

  There have been some inconsistencies and unfair decisions relating to road accidents and whether they were carried out in the course of employment
• If an employee is acting 'on a frolic'


  The victims/ their families will not be able to claim
• The decisions in Holton v Thomas Burton (Rhodes) (1961) contrasts with that in Smith v Stages (1989)


  The difference in the decision was the purpose of the employee's journey
• 'Close connection' and 'Akin to employment'


  The courts are prepared to make the employer liable, especially where the crime is committed in the course of employment and the employee has been dishonest
• Cases where 'close connection' and 'akin to employment' have been used

  • Lister v Hesley Hall (2001)
  • Mohamud v Morrisons (2016)
  • Cox v Minister of Justice (2016)
• 'Close connection' and 'akin to employment' have been used

  To allow claims in cases where there was no employment relationship at all
• The use of 'close connection' and 'akin to employment'

  Is fair on the victims/ their families who should be compensated for their injuries and are unlikely to receive this from the person who inflicted them
• The use of 'close connection' and 'akin to employment'


  Could be argued that the employer should have supervised their employees more closely
• In cases of dishonesty, the HoL decided in Dubai Aluminium Company Limited v Salaam (2002)


  It is no longer possible for a firm to avoid liability for the acts of a partner because they were dishonest
• For the firm to be vicariously liable for the partners actions

  The wrongful conduct must have occurred in the ordinary course of the firms business
• A firm can be responsible for dishonest actions of fellow partners

  If the acts are closely connected to the business of the firm
• The developments in 'close connection' and 'akin to employment'

  Employers are expected to take greater care when selecting, training, and supervising their employees
• Employers have a social responsibility and should see this as one of the underlying costs of being an employer


  Modern methods of working mean that it is not always possible for employers to closely supervise their workforce and it could be seen as unfair to have them accept responsibility for someone working away from their eyes
• Civil Liability (Contribution) Act 1978

  An employer or their insurer can use this act to recover from an employee any compensation paid out
• If employees were made aware of the Civil Liability (Contribution) Act 1978


  It could act as a deterrent
• The employee is unlikely to be earning sufficient money to make it worth the employer/ insurer pursuing them for large amounts


  The employee could leave the employment, or be dismissed, which makes recovery difficult, in some cases impossible, to enforce
• Some employees will know there is little chance of them being sued


  There is no incentive for them to take care at work