Obligations, Tort - Vicarious Liability

Vicarious liability

Liability will arise when someone is in the course of employment, or akin to employment. This is non-fault based, strict liability, where the employer may be liable, regardless of fault. It is a secondary liability, where the employee and employer are equally liable, but C decides who to sue.

There are three criterion: It must be an employer-employee relationship (or akin), the employee committed a tort, and the tort was committed while acting in the course of employment.

Justifications for vicarious liability

1- The employer benefits from employing the employee, so should also take the burdens of their employment.

2- Employers can take out insurance against claim, where private people can’t.

3- Employers control who their employees are, what they do, and how they do it through training.

4- Employers have deeper pockets and can bear the loss better than an individual.

Employment relationship - Defining employees

Employees provide themselves to serve employers - not contractors who offer their services, though this is increasingly difficult to distinguish in a gig economy.

Employment relationship - Control test, Various Claimants v Catholic Child Welfare Society (2013) and X v The Lord Advocate (2025)

If employer showcases control over behaviour = employee (no longer reliable), jobs with professional skills deviate here. Here, there must be mutual obligations.

Various Claimants v Catholic Child Welfare Society (2013) - Brothers were employed at schools for children in care, with many physically and sexually abused over several decades. UKSC found both brotherhood and schools jointly liable.

X v The Lord Advocate (2025) - member of the Scottish judiciary was harassing a lawyer, but Scottish government could not be held liable.

Employment relationship - Economic reality test and Ready Mixed Concrete Ltd v Minister of Pensions (1968)

This considers the real economic relationship, economic independence from the business, integration into the business and who owns equipment.

Ready Mixed Concrete Ltd v Minister of Pensions (1968) - Company hired ‘owner-drivers’ who were paid a fixed rate per mileage, had uniforms and had to decorate their own lorries a certain way for the company. They bore both benefits and burdens of the contract, so were ruled contractors not employees.

Employment relationship - ‘akin to employment’ factors

1- employer is more likely to be able to compensate, and is expected to have insurance.

2- tort committed during employee carrying out employer’s orders.

3- employee’s activity is likely to be part of the employer’s business.

4- employer creates risk for the tort by employing the employee.

5- employee is under control of employer.

Employment relationship - ‘akin to employment’ in Cox v Ministry of Justice (2016) and Barclays Bank v Various Claimants (2020)

Cox v Ministry of Justice (2016) - Prison manager injured by prisoner while working in kitchen - employment found, since the task of preparing food was integral to the prison, and the MoJ placed them into the position where the tort could be committed, and did so negligently, so MoJ was VL.

Barclays Bank v Various Claimants (2020) - D arranged for employees to see a doctor, who sexually assaulted employees - but he was a contractor, who owned his own clinic and was not carrying out integral parts of their business.

Tort committed in the course of employment

This can include negligence, intentional torts, harassment, nuisance, or deceit (fraudulent misrepresentation).

Close connection, Lister v Hesley Hall Ltd [2001] and Mohamud v WM Morrison Supermarkets Plc [2016]

There must be a link between the duties of employment and the tortious acts.

Lister v Hesley Hall Ltd [2001] - warden at a residential schools sexually abused children - this was closely linked to his role in day-to-day running and discipline in the school.

Mohamud v WM Morrison Supermarkets Plc [2016] - petrol station attendant verbally and physically attacked customer after following him to his car. Confrontation and force fell outside of duties but was within the field of activities of is employment, so Morrison’s was VL. This widened the net.

Close connection in WM Morrisons Supermarkets plc v Various Claimants [2020] and Trustees of the Barry Congregation of Jehova’s Witnesses v BXB [2023]

WM Morrisons Supermarkets plc v Various Claimants [2020] - Skelton looked after payroll and published data to the public, but was pursuing a personal vendetta and vengeance, not his duties = no VL. This narrowed the outcome given in Mohamud.

Trustees of the Barry Congregation of Jehova’s Witnesses v BXB [2023] - Elder raped congregant after other were aware of his inappropriate behaviour and encouraged her to maintain a relationship with him. But the rape occurred when they were out for lunch as friends, so not under his duties as an Elder, and there was no control - the attack was a shocking one-off, so the congregation could not be held VL.

Close connection - A frolic of his own and Hilton v Thomas Burton (1961)

This refers to when couriers take detours and cause accidents when they do, etc.

Hilton v Thomas Burton (1961) - employee drove company car to go to a cafe and was involved in an accident due to their own negligence. They were not employed to drive there (frolic of their own) so the company was not VL.