VICARIOUS LIABILITY
Generally in tort, liability will attach to the person who has committed the tort. However, it can also
attach to someone who has either authorized or overlooked it. There are circumstances where a person
will be liable if they neither authorized nor overlooked the tort. This is known as vicarious liability. The
most usual example is when the employer is responsible for the actions of employees, although it can
exist in the case of a parent and child. It is seen as a way of ensuring a just and practical remedy for harm
while trying to deter future wrongdoing. Nonetheless it is, arguably, unfair as it imposes liability on a
fault free employer, thus it is a form of strict liability.
The doctrine of vicarious liability appears to rest on both policy and economic factors. There is a need to
obtain compensation for the victim from a solvent defendant. The imposition of liability on employers
also allows them to recruit better employees and provide better training to avoid litigation.
The courts are also willing to allow liability in relationships ‘akin to employment.’ In order for the
imposition of vicarious liability, two conditions must be met:
● There must be relationship of employment or a relationship ‘akin to employment’ between the
defendant and the person for whose actions they are being held liable.
● The employee must have been acting in the course of employment when the tort was
committed.
The employer/employee relationship
The general rule is that an employee is employed under a contract of service whereas an
independent contractor is employed under a contract for services. The distinction is important
because an employer will not be liable for the torts of independent contractors. The traditional tests
for assessing whether the relationship is one of employee-employee are:
1) The control test: This was devised in Ferguson v John Dawson and Partners and is based on the
old-fashioned concept of master-servant. The court considers the extent to which the employee
is under the control of the employer as to how he did his work and the way he did his work.
However, this is not suitable for modern employment patterns as not every employee is under
the direct control of his/her employer. In Catholic child Welfare society v Various claimants,
Lord Phillips stated that ‘many employees employ a skill or expertise that is not susceptible to
direction by anyone else in the company that employ them.’
2) Business integration test: where the employees work is carried out as an integral part of the
business, a contract of employment will exist( per Lord Denning in Stevenson, Jordan and
Harrison Ltd v McDonald)
3) Multiple test: In Ready Mixed Concrete v Minister of Pensions and NI, it was held that three
conditions must be satisfied for a contract of service to exist. The worker must agree for a
payment of a wage to provide work or skill to another person. He agrees to be in the other
persons control, making the other person the master and the other terms of the contract must
be consistent with it being a contract of service. However, if the contract states that a person will
, be self-employed and the other terms of the contract reflect this, the contract will be regarded
as one for services. This means that the worker is an independent contract and the employer
will not be liable for his actions. In Ready Mixed concrete v Minister of Pensions, the lorry
drivers were classified as independent contractors because they maintained and owned the
lorries themselves.
4) Business on their own account test: The question to ask is whether the worker is performing the
service as a person in business or on his own account( Market Investigations ltd v Minister of
Social Security). The court will consider whether the person uses his own premises and
equipment, whether they have helpers, the degree of financial risk they take and the degree of
responsibility they have for investment and management. The court made it clear that the test is
not to be regarded as conclusive as there is no clear test since what is important in one case may
not be in another.
The ‘akin to employment’ approach has been adopted by the courts for some time but was
confirmed in Cox v Ministry of Justice(2016).
The course of employment:
What the court regards as being in the course of employment is a question of fact. There tends to be an
inconsistent approach taken by the courts as the decision is often based on policy considerations. The
courts used the so-called ‘Salmond test’( devised by Sir John Salmond) for many years to determine
whether the employee was acting in the ‘course of employment.’ The question to ask was whether the
employees act was a wrongful and unauthorized mode of doing some act authorized by the master.
However since Lister v Hesley Hall(HOL) a different test is used. The relevant question now is whether
the tort is so closely connected to the employment itself that it would be fair and just to just hold the
employer liable.
Salmond test: It consists of 2 elements:
● The wrongful act is authorized by the employer: This includes both express and implied authority
to commit the act. In such a circumstance, the employer will be liable.
Generally in tort, liability will attach to the person who has committed the tort. However, it can also
attach to someone who has either authorized or overlooked it. There are circumstances where a person
will be liable if they neither authorized nor overlooked the tort. This is known as vicarious liability. The
most usual example is when the employer is responsible for the actions of employees, although it can
exist in the case of a parent and child. It is seen as a way of ensuring a just and practical remedy for harm
while trying to deter future wrongdoing. Nonetheless it is, arguably, unfair as it imposes liability on a
fault free employer, thus it is a form of strict liability.
The doctrine of vicarious liability appears to rest on both policy and economic factors. There is a need to
obtain compensation for the victim from a solvent defendant. The imposition of liability on employers
also allows them to recruit better employees and provide better training to avoid litigation.
The courts are also willing to allow liability in relationships ‘akin to employment.’ In order for the
imposition of vicarious liability, two conditions must be met:
● There must be relationship of employment or a relationship ‘akin to employment’ between the
defendant and the person for whose actions they are being held liable.
● The employee must have been acting in the course of employment when the tort was
committed.
The employer/employee relationship
The general rule is that an employee is employed under a contract of service whereas an
independent contractor is employed under a contract for services. The distinction is important
because an employer will not be liable for the torts of independent contractors. The traditional tests
for assessing whether the relationship is one of employee-employee are:
1) The control test: This was devised in Ferguson v John Dawson and Partners and is based on the
old-fashioned concept of master-servant. The court considers the extent to which the employee
is under the control of the employer as to how he did his work and the way he did his work.
However, this is not suitable for modern employment patterns as not every employee is under
the direct control of his/her employer. In Catholic child Welfare society v Various claimants,
Lord Phillips stated that ‘many employees employ a skill or expertise that is not susceptible to
direction by anyone else in the company that employ them.’
2) Business integration test: where the employees work is carried out as an integral part of the
business, a contract of employment will exist( per Lord Denning in Stevenson, Jordan and
Harrison Ltd v McDonald)
3) Multiple test: In Ready Mixed Concrete v Minister of Pensions and NI, it was held that three
conditions must be satisfied for a contract of service to exist. The worker must agree for a
payment of a wage to provide work or skill to another person. He agrees to be in the other
persons control, making the other person the master and the other terms of the contract must
be consistent with it being a contract of service. However, if the contract states that a person will
, be self-employed and the other terms of the contract reflect this, the contract will be regarded
as one for services. This means that the worker is an independent contract and the employer
will not be liable for his actions. In Ready Mixed concrete v Minister of Pensions, the lorry
drivers were classified as independent contractors because they maintained and owned the
lorries themselves.
4) Business on their own account test: The question to ask is whether the worker is performing the
service as a person in business or on his own account( Market Investigations ltd v Minister of
Social Security). The court will consider whether the person uses his own premises and
equipment, whether they have helpers, the degree of financial risk they take and the degree of
responsibility they have for investment and management. The court made it clear that the test is
not to be regarded as conclusive as there is no clear test since what is important in one case may
not be in another.
The ‘akin to employment’ approach has been adopted by the courts for some time but was
confirmed in Cox v Ministry of Justice(2016).
The course of employment:
What the court regards as being in the course of employment is a question of fact. There tends to be an
inconsistent approach taken by the courts as the decision is often based on policy considerations. The
courts used the so-called ‘Salmond test’( devised by Sir John Salmond) for many years to determine
whether the employee was acting in the ‘course of employment.’ The question to ask was whether the
employees act was a wrongful and unauthorized mode of doing some act authorized by the master.
However since Lister v Hesley Hall(HOL) a different test is used. The relevant question now is whether
the tort is so closely connected to the employment itself that it would be fair and just to just hold the
employer liable.
Salmond test: It consists of 2 elements:
● The wrongful act is authorized by the employer: This includes both express and implied authority
to commit the act. In such a circumstance, the employer will be liable.
