Vicarious liability

• Vicarious liability


  Term used to explain the liability of one person for the torts committed by another. There must be a legal relationship between the two parties and the tort should be connected to that relationship. It mostly arises in employment when an employer might be liable for the torts of their employee. Vicarious liability is a form of strict liability.
• Vicarious liability


  • Can be thought of as the idea that if someone that an employer has some authority over makes a mistake, then the employer must accept some responsibility for this. Due to this it is a form of joint liability.
  • Is used to compensate victims, as employers are often insured against such losses.
• Determining if vicarious liability applies to an employer


  1. Is the person who committed the tort an employee?

  2. Was the tort committed in the course of that person's employment?
• Employee status


  • The claimant must show that the employee has 'employee status'. An employer is not generally responsible for the actions of an independent contractor.
• Tests to determine employment status

  1. Control test (Yewen v Noakes [1880])

  2. Organisation test (Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952])

  3. Economic reality test (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1967])
• Employer liability for torts of employees


  • Employer is not responsible for a tort committed by an employee outside the course of employment.
  • Employer may be responsible for a tort committed by an employee during the course of employment.
• Employer not liable for torts on a 'frolic of their own'


  • Storey v Ashton (1869)
• Employer liability for torts of employees


  • Employer is vicariously liable for torts of employee if the employee is doing an authorised act in an authorised manner.
  • Employer may still be vicariously liable for torts of employee even if the act is unauthorised, if what the employee was forbidden from doing relates to the way the job is done rather than the scope of the job itself.
• Employer liability for torts of employees

  • Limpus v London General Omnibus (1863)
• Employer liability for torts of employees

  • Commuting to and from work is not normally considered to be 'in the course of employment' and so an employer will not be liable for any torts committed by employees during these journeys.
  • However, if the employee who is travelling, for example, between sites during working hours, detours from a route or gives a lift to an unauthorised person then the employer may be liable.
• A person or company may in some circumstances be held liable for the torts committed by an independent contractor to visitors and non-visitors. This is covered under occupiers' liability.
• Employer liability for torts of employees

  An employer will only be held to be vicariously liable for the unlawful acts of his/her employee if there is a closeness of connection between the employment and the unlawful act.
• Closeness of connection between employment and unlawful act


  • If a store security guard uses unreasonable and excessive force in stopping a shoplifter then it is likely that his/her employer will be held to be vicariously liable.
  • If the store detective punches a customer because she believes she is having an affair with her husband, then it is unlikely the employer will be vicariously liable.
• This topic is frequently examined as a problem scenario but can also feature as an essay question. For problem questions, you will need to be able to explain and/or apply the liability of the parties involved. For essay questions, you will need to be able to analyse and evaluate the effectiveness of the law in this area and consider proposals for reform.
• It is therefore important to be able to evaluate the law in this area.