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Vicarious Liability
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Lecture notes on vicarious liability
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Tort LectureWeek 7
There are three different types of Tort action which an employee may be able to pursue against their
employer to recover damages for a work injury:
1. An action in the Tort of negligence for breach of the common law duty of care owed by an
employer to their employee
2. An action for breach of statutory duty
3. An action against the employer for injuries which were caused by a fellow employee
committing a Tort i.e. injuries for which the employer will be vicariously liable
VICARIOUS LIABILITY
➔ An employer will be vicariously liable for injuries caused by an employee’s tort committed in
the course of their employment
➔ form of secondary liability, initial D can still be held liable
➔ Vicarious liability is a common law principle of strict, no-fault liability
➔ Mechanism by which one person (the df) is held liable to a claimant for a tort committed by
someone else (the tortfeasor)
➔ The main application of vicarious liability is in employment relationship but its application has
expanded to other relationships, which are akin to employment
➔ Don’t forget that alongside vicarious liability for the torts committed by his employees, an
employer owes his employees a non-delegable personal duty that arises from the employer’s
responsibility for the management of his organisation. This require fault on the part of the
employer
JUSTIFICATION FOR IMPOSITION OF VICARIOUS LIABILITY
➔ It is clear that this principle of vicarious liability is at odds with the general approach of the
common law that a person is liable only for their own acts.
➔ Catholic Child Welfare Society v. Various Claimants [2012] UKSC 56 [35]
◆ Lord Phillips has synthesised various authorities
● He then identified the following five factors as criteria which will normally make
it ‘fair, just and reasonable’ for vicarious liability to be imposed:
○ (i) The employer is more likely to have the means to compensate the
victim than the employee and can be expected to have insured against
that liability;
○ (ii) The tort will have been committed as a result of activity being
taken by the employee on behalf of the employer;
○ (iii) The employee’s activity is likely to be part of the business activity
of the employer;
○ (iv) The employer, by employing the employee to carry on the activity
will have created the risk of the tort committed by the employee;
○ (v) The employee will, to a greater or lesser degree, have been under
the control of the employer
➔ An employer will be vicariously liable where the following conditions are met:
1. There is an employer and employee relationship or one akin to employment between
the employer (the defendant) and the employee (the tortfeasor)
2. The employee committed a tortious act (Part 3)
, 3. That tort has been committed in the course of employment (Part 3)
AN EMPLOYER-EMPLOYEE RELATIONSHIP
➔ The question requires that there is a relationship sufficient to justify imposing vicarious liability
on the employer.
➔ The Control Test
◆ Oldest test - ‘master and servant’
◆ ‘The control test distinguishes an employee and an independent contractor on the
basis of whether the employer had the right to control the nature of the work done
and, most importantly, how it must be done’ Yewen v Noakes (1880) 6 QBD 530 (CA)
➔ Business Integration Test
◆ Is the person’s work an integral part of the business?
◆ “a man is employed as part of the business and his work is done as an integral part of
the business” – contract of service
◆ “work, although done for the business is not integrated into it but is only accessory to
it” – contract for services Lord Denning - Stevenson, Jordan and Harrison Ltd v
McDonnell and Evans [1952] 1 TLR 101 (CA)
◆ Akin to Employment Test
VARIOUS CLAIMANTS V THE CATHOLIC CHILD WELFARE SOCIETY
[2012] UKSC 56
➔ Lord Phillips
◆ ’[a] relationship can properly give rise to vicarious liability on the ground that it is
”akin to that between an employer and an employee”’
◆ ’Provided [they were]…acting for the common purpose [of the employer]...the
relationship between them would be sufficient.’
➔ Sexual and physical abuse by members/brothers
➔ Employed as teachers at a residential school for children
➔ Brothers not employed by the Institute
➔ The first question for the Court was whether the relationship between the Institute and the
brothers teaching at school was one that was capable of giving rise to vicarious liability.
➔ The Supreme Court held that both the School and the Institute were vicariously liable
◆ Relationship of Institute and brothers ‘akin to employment’
➔ Lord Phillips
◆ the resulting relationship ‘had many of the elements, and all the essential elements, of
the relationship between employer and employees’:
● the teaching undertaken by the brothers was in furtherance of the mission of
the Institute, it directed them to undertake it, and they were obliged to follow
the Institute’s rules when carrying it out
COX V MINISTRY OF JUSTICE [2016] UKSC 10
➔ Ministry of Justice vicariously liable for the injuries of the catering manager at HM Prison
Swansea (Mrs Cox)
➔ Negligently injured by a prisoner (Mr Inder) who was undertaking paid work in the kitchen
➔ Dropped large bag of rice on her upper back while unloading supplied
➔ Relationship found to be ‘akin to employment’
➔ Lord Reed, citing Lord Phillips from the Christian Brothers case:
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