Definition:

Vicarious liability holds one person (usually an employer) liable for another’s tort, even though they are personally blameless.

Key rationales:

• Control: employers have control over how employees perform their duties.

• Benefit and risk: those who benefit from an enterprise should also bear its risks.

• Compensation: ensures injured claimants can recover from a solvent defendant.

• Prevention: encourages employers to maintain proper standards and supervision.

Key case: Bazley v Curry [1999] (Canadian case, adopted in the UK): liability arises where there is a close connection between the tort and the employment.

To establish vicarious liability, two main elements must be satisfied:

1. A relationship capable of giving rise to vicarious liability, and

2. The tort committed in the course of that relationship.

(1) Relationship: Employer and Employee

Employee vs Independent Contractor:

Employers are liable for employees, not for independent contractors.

• Ready Mixed Concrete v Minister of Pensions [1968] – “multiple test” for employment:

1. The worker agrees to provide work or skill in return for payment;

2. The worker is subject to a sufficient degree of control;

3. The arrangement is consistent with a contract of service, not for services.

Other factors: ownership of tools, method of payment, ability to delegate work.

Modern Expansion – “Employment-like” Relationships

Courts have extended liability beyond traditional employment:

• Catholic Child Welfare Society v Various Claimants (Christian Brothers) [2012] – religious institute held liable for abuse by members working in schools; relationship was “akin to employment.”

• Cox v Ministry of Justice [2016] – prison service vicariously liable for negligence of a prisoner working in the kitchen; activity was integral to the organisation’s function.

Thus, liability may arise where there is:

• Integration into the defendant’s business,

• Control or direction, and

• The tortfeasor’s activity furthers the defendant’s aims.

(2) Course of Employment

An employer is liable only for torts committed in the course of employment — acts closely connected to the employee’s authorised duties.

Traditional test:

• Salmond test – an act is within the course of employment if it is:

1. A wrongful act authorised by the employer, or

2. A wrongful and unauthorised mode of doing something authorised.

Modern test:

• Lister v Hesley Hall Ltd [2001] – liability exists where the employee’s tort is closely connected with their employment.

• Mohamud v WM Morrison Supermarkets plc [2016] – employer liable for employee assaulting customer after serving him; connection between employment and wrongful act.

• Bellman v Northampton Recruitment Ltd [2018] – managing director’s drunken assault at a work party was within the course of employment as he was asserting authority derived from his role.

Acts outside employment:

• Hilton v Thomas Burton (Rhodes) Ltd [1961] – employees who took an unauthorised detour (“frolic of their own”) were outside employment; employer not liable.

Vicarious liability applies to most torts, including:

• Negligence (e.g. careless driving, medical errors).

• Intentional torts (e.g. assault, sexual abuse) if closely connected to employment (Lister; Mohamud).

• Defamation, trespass, conversion — if committed in the course of employment.

• Employee on a frolic of their own: employer not liable if the act is entirely personal.

• Independent contractor: no liability unless non-delegable duty applies (e.g. hospitals, schools).

• Statutory exceptions: certain laws limit liability in specific sectors.