Vicarious liability gives the victim a just and practical remedy

• The claimant is the only truly innocent party and shouldn’t be left without a remedy. An employer is more likely to be financially able to pay than an employee and will have liability insurance.

• This justifies decisions in cases like Limpus v London General and Rose v Plenty, where the employer was liable even if the employee had acted against express instructions

• Employers are subject to compulsory insurance so the insurance company will have to pay off the damages, whereas the employee may be unable to pay the compensation

• Also, insurers will spread the cost amongst all the policy holders, making the compensation more manageable

• Increased premiums may act as a deterrent to poor employment practises and prevent claims in future

However the supreme court judgement in Barry Congregation v BXB makes clear that the fact the organisation has “deeper pockets” is not a justification for extending VL beyond principled boundaries

The employer benefits from the work and so should take responsibility for an employee’s acts

• It’s fair that the employer taking the benefit of the work by someone integrated into the organisation should bear the cost or risk of the wrong committed by that person during employment

• This encourages employers to supervise staff and ensure work is carried out safely

• It’s fair to hold the employer responsible if an employee has followed the employers instructions and it lead to a tort, and the employer is also able to discipline for unsafe practises

In Century Insurance v NI Road Transport, the employer should have trained workers to know how dangerous it was to smoke while delivery petrol

The rules on vicarious liability achieve social justice

• Organisations that have failed to guard against sexual abusers working for them have been held to account, in some cases well after the abuse, Lister v Hesley Hal 2001; Catholic child welfare society 2012

• VL is also effective in raising standards of hygiene, safety and service for the benefit of society, even if can seem harsh on an employer

Vicarious liability is unfair

• It imposes liability on an apparently innocent party for a tort they have not personally committed and may not be at fault for

  Strict liability is inconsistent as it targets the employer simply because they can bear the financial loss better, the tort often happens before the employer realises the workers behaviour making it hard to avoid liability

• As some workers work from home, they cannot always be supervised closely, the employer may still be liable even if they prohibited the unsafe practice, making it harder for an employer trying to run a business e.g Limpus v London General Omnibus

• More than one employer can be liable for the torts of one employee e.g Viasystems carries potential unfairness leaving an employer liable when they had little control or supervision. However it offers claimants the possibility of suing the party best placed to pay damages

The rules on whether an employee is working “in course of employment” can lead to different outcomes

• Decisions regarding road accidents have been inconsistent such as in Hilton v Thomas Burton the employer was not liable for workers on a frolic of their own in comparison to Smith v Stages where the employer was liable because the worker was travelling to work and the only real difference was the purpose of the journey

Is the law too favourable to the claimant?

• The development of the close connection test has broadened the scope of VL significantly and most controversially in cases involving criminal conduct

• Previously an employer could argue the employee was “on a frolic of their own” and employers were only liable if the employment itself involved a risk of a crime being committed e.g Lister v Hesley Hall (care wardens)

• Yet the decision in Mohamud signalled an expansion of VL since employment didn’t involve an obvious risk that a crime could be committed