Vicarious Liability

What is VL

when someone who did not commit the tort is held liable because of their relationship with the tortfeasor (TF).

Usually a case of “Employer pays for what the employee did.”

how would u approach a VL scenario in the exam

Step 1: Identify the tort committed by TF

(e.g., assault, negligence)

Step 2: Show TF is primarily liable

Step 3: Consider TF’s defences

Step 4: Apply the 2-stage test for VL

✔ Limb 1: Was TF an employee or “akin to employee”?
✔ Limb 2: Was the tort “closely connected” with their job?

How do we go about limb one; finding out whether someone is an employee (or akin to one) ?

Use the Composite test set out in Ready Mixed Concrete Ltd v Miniter of Pensions

What is the test in ready mixed ?

MacKenna J set out the factors courts must consider when deciding if someone is an employee (contract of service) or an independent contractor (contract for services).

• Who controls how work is done?

• Who owns tools?

• Who takes profit/loss risk?

• Who provides equipment?

• Who hires assistants?

No single factor decides — they look at overall picture.

Does a independent contractor fall under the umbrella of an employee ?

No - Barclays Bank v Various Claimants

Barclays Bank v Various Claimants

·       Barclays required job applicants to undergo medical examinations.

·       They used Dr Bates, a self-employed GP, who worked from his own home.

·       Many applicants later alleged that Dr Bates s’ad them during these examinations.

·       They sued Barclays Bank, arguing the Bank should be vicariously liable for Dr Bates’ actions.

The Legal Issue

Was Dr Bates in a relationship “akin to employment” with Barclays?

If yes → Barclays could be vicariously liable.
If no → Barclays is not liable.

Held: Barclays was NOT vicariously liable.Why?1⃣ Dr Bates was clearly an independent contractor

·       He worked for many different clients

·       He controlled how the examinations were done

·       He used his own equipment and premises

·       He was paid per appointment

·       He was not “part of” the bank’s organisational structure

This meant the relationship lacked the key features of employment.

2⃣ The “akin to employment” doctrine has limits

The Supreme Court emphasised:

If the tortfeasor is clearly an independent contractor, the court does NOT need to consider the 5 policy factors (from Lord Phillips).

Does Dual VL exist ?

Yes; Viasystems v Thermal Transfer

• Worker could be under control of two employers simultaneously
  → Dual VL exists.

Cases for where relationships where akin to employment ?

Catholic Child Welfare Society (2012)

Cox v Ministry of Justice

Armes v Nottinghamshire CC

Catholic Child Welfare Society (2012)

Religious brothers were not employees (they took vows, no salary) but:

• Worked under a hierarchy

• Were assigned tasks

• Furthered organisation’s mission

→ Relationship was “akin to employment.”

Cox v Ministry of Justice

Prisoner working in kitchen → MoJ vicariously liable.

Armes v Nottinghamshire CC

Council vicariously liable for foster carers.

when would u need to mention the above cases ?

when TF is not a traditional employee but relationship is similar.
(Volunteers, religious orders, foster carers, etc.)

For limb two: Close connestion test give a quick case timeline

Salmond test

Lister v Hesley Hall

Jehovah’s Witnesses v BXB (2023) 

What was the Salmond test ?

An employer is vicariously liable if the employee’s tort was:

1⃣ A wrongful act authorised by the employer, OR
2⃣ A wrongful and unauthorised mode of doing an authorised act

Is Salmond good law ?

No it has been dropped by the courts and the courts adopted a modern approach in Lister v Hesley Hall

Lister v Hesley Hall

“Is the tort so closely connected with the employee’s duties that it is fair and just to hold the employer liable?”

SA cases shaped this area

• Lister: warden caring for children → abuse connected to job → VL

• Catholic Child Welfare Society: same principle

has Jehovah’s replaced Lister ?

Nooo. It expanded/clarified it

What is the current position per Lord Burrows in Jehovah’s regarding the 2nd limb ?

The modern question is:

⭐“Is the tort so closely connected with the employee’s assigned duties that it is FAIR AND PROPER to regard it as committed in the course of employment?”

He Gave 5 Principles: These five points are now the authoritative guidance for all close-connection questions:

1⃣ Two-stage analysis remains:

• Stage 1 → Relationship (employment / akin to employment)

• Stage 2 → Close connection

2⃣ Stage 2 test = the Lister “close connection” test, but clarified

Look at the employee’s duties and ask whether the tort is an abuse of the role entrusted to them.

3⃣ Causation is NOT enough

Just because the job put them in a position to commit the tort does NOT mean employer is liable.
(This was a common mistake after Mohamud — JW v BXB shuts this down.)

4⃣ Policy plays only a small role

Policy (fairness, justice, risk distribution) is only used where the case is finely balanced.
Not the main test.

5⃣ Same test applies to SA cases

There is no special or looser rule for SA cases.