Lecture notes
Tort Law : Vicarious Liability
- Module
- Tort Law
- Institution
- Kingston University (London) (KUL)
Complete Notes on Vicarious Liability in Tort Law
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Vicarious liabilityA blameless employer is liable for the wrong committed by his employee
There is no single argument for justifying vicarious liability. However, it can be justified by:
As benefit arises from the employee’s work, employer should also bear the costs of damages
The insured employer
The employer ensuring that its employees are effectively trained to carry out their work safely.
The employer is more likely to be careful in selecting employees.
The ‘deep pocket’ argument: the employer is better able to pay compensation by his insurance.
The following criteria must be met in order to establish vicarious liability:
There must be an employer-employer (different from independent contractor)
The employee must have committed a tort.
The tort must be committed while acting in the course of employment.
1- An employee or an independent contractor?
Employers are not liable for torts committed by their independent contractors. But how to determine?
(1) The ‘control’ (2) The (3) The ‘economic reality’ test
test ‘integration’ Regardless of how the parties themselves classified the relationship:
If the employer test Ferguson v John Dawson & Partners (Contractors) Ltd (1976)
controlled the actual Lord Denning:
performance of the In assessing Ready Mixed Concrete (SE) Ltd v Minister of Pensions (1968)
work and ‘how’ it whether or not Te plaintiff was found to be independent contractor, working under a
was to be done, the persons are contract for services. The key factors were that the drivers:
worker was regarded employees this 1- Owned and maintained the lorries
as an employee. test takes into 2- Were free to hire other drivers in the event of holiday or
account the sickness
The Court of Appeal extent to 3- Took the chance of profit and bore risk of loss.
held that despite the which they are
existence of any integrated into Market Investigations Ltd v Minister of Social Security (1969)
independent the business of The working relationship was determined by examining:
contract, the hospital the employer: 1- Whether the person uses his own premises and equipment
was vicariously liable Stevenson 2- Whether he hires his own helpers
for the professional Jordan & 3- The degree of financial risk he takes
negligence of its Harrison v 4- The degree of responsibility, if any, which he has for
staff: Cassidy v Macdonald & investment and management
Ministry of Health Evans (1952) 5- Whether and how far he has an opportunity of profiting from
(1951) sound management in the performance of his risk.
6- This is not an exhaustive list.
Who is liable when an employee is hired to another employer?
Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool) Ltd (1947)
Factors to be considered:
The type of machinery that had been loaned, the more complicated it is, the more likely the main
employer will remain liable.
Who is the paymaster and who pays the employees’ national insurance contributions.
The duration of the alternative service with the temporary employer.
Which employer retains the power of dismissal
Whether the employers themselves have attempted to regulate the matter.
The burden of proof rests upon the permanent employer to shift prima facie responsibility to the hirer.
There can be dual vicarious liability and it is possible for two separate employers to be vicariously liable for the
tort of single employee: Viasystem Ltd v Thermal Transfer Ltd (2005)
Hawley v Luminar Leisure (2006) confirmed both previous cases.
, Vicarious liability outside the employer-employee relationship: principal-agent
Where the owner of a vehicle allows another person to drive it in his presence or where a person has authority
to drive the vehicle on behalf of, or for the purpose of, the owner, the vehicle owner will be vicariously liable.
(the driver was furthering the defendant’s interests who planned to use it jointly with the driver on the holiday):
Ormrod v Crossville Motors (1953)
This case is the leading authority. It places great emphasis on the owner’s ‘purposes’ or ‘interests’: Morgans v
Launchbury (1973)
2- There must be a tort
The employer can only be liable if the employee commits a tort and the tort must be committed in the course of
the employee’s employment. That could extend to theft. The employer was liable when one of his employees
stole the plaintiff’s mink coat which she had left to be cleaned: Morris v CW Martin (1966)
3- The tort must be committed in the course of employment
1- Distinguishing 2- ‘Frolic of his own’ 3- Policy and the ‘close
between authorized Liability will be based on the test on connection’ test.
and unauthorized acts whether the employee was engaged on In determining ‘course of
Prof. Salmond: (i) a wrongful the employer’s business or ‘on a frolic of employment’ for vicarious
act authorized by the master, or his own’: Joel v Morrison (1834) liability, the question to be
(ii) a wrongful and unauthorized asked is whether the employees
mode of doing some act The employee’s temporary workplace act was so closely connected
authorized by the master. did not have a canteen, and his journey with what he was employed to
Employers were found vicariously in search of food was found to be within do that it would be fair and just
liable because the driver was the course of his employment: Harvey to hold the employer liable. On
doing what he was authorized to v RG O’Dell Ltd (1958) the facts, the torts had been
do, in an unauthorized way, i.e. committed on the premises of
delivering petrol while smoking: Employer was not liable. the negligent the employer and in the
Century Insurance Co Ltd v employee was acting outside the employer’s time: the employee
Northern Ireland Road course of his employment at the time of was caring for the boys, on
Transport Board (1942) the accident: Hilton v Thomas Burton behalf of his employer, in
(1961) discharge of his duties at the
The employer was not vicariously relevant time. The torts were
liable when the conductor, Employers were found not to be sufficiently connected to the
instead of the driver in his vicariously liable for his negligence employer’s duties, and his
absence, turned the bus round at because the detour was too substantial employer was vicariously liable:
the terminus, injuring the to be within the course of his Lister v Hesley Hall Ltd
claimant: Beard v London employment: Storey v Ashton (1869) (2002)
General Omnibus Co (1900)
4- Travelling: from 5- Acts expressly prohibited 6- Criminal Conduct (See Morris)
home to work by the employer In the case of intentional, deliberate
and between Employer was not vicarious liability wrongs, rather than casual acts of
workplaces because the employee performed an negligence, it may be more difficult to
distinguished act, which is expressly prohibited by satisfy the requirement of ‘course of
In determining whether an the employer: Twine v Bean’s employment’: Warren Henlys (1948)
employee was acting in the Express Ltd (1946)
course of his employment The employer was not vicariously liable
when traveling on the Distinguished from Twine. Where the when following a quarrel on a bus, the
highway the material prohibited conduct is performed in bus conductor struck and injured a
question was whether he furthering the employer’s business or passenger: Keppel Bus Co Ltd v Sa’ad
was going about his to benefit the employer in some way, bin Ahmad (1974)
employer’s business at the it is usually within the course of
material time: Smith v employment: Rose v Plenty Note: Those cases need to be read in the
Stages (1989) (1976) light of Lister.
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