Vicarious Liability
• Nature and purpose of vicarious liability: • ‘Akin to employment’ tests:
• Employers are vicariously liable for the torts of their • Where there is doubt about this, the courts use the ‘close connection test’.
employees that are committed during the course of • Examines the closeness of the connection between the work the employee was
employed to do and the tortious conduct:
employment: • What function or field of activities has been entrusted by the employer to the employee (i.e.
• Employer is more likely to have means to compensate the victim what was the nature of the job)?
than the employee, and can be expected to have insured against • Was there a sufficient connection between the position in which the employee was
that liability. employed and the wrongful conduct to make it right for the employer to be held liable?
• The tort will have been committed as a result of activity being • In Morrison Supermarkets v Various Claimants (2020), the Supreme Court found
performed by the employee on behalf of the employer. that an employee’s conduct did not meet the ‘close connection test’ when it
• The employer, by employing the employee to carry out the activity, amounted to pursuing a personal vendetta and that his personal motive meant
will have created the risk of tort committed by the employee. that he was not acting on his employer’s business.
• The employee will, to a greater or lesser degree, have been under • Where a defendant is held to be acting outside of the course of employment,
the control of the employer. they are described as being ‘on a frolic of their own’ – Joel v Morison (1834)
• Three questions must be asked in order to establish liability: • Liability for torts committed in the course of employment (or not):
1. Was a tort committed? (likely to be negligence) • The principle of vicarious liability is clearly where no fault has to be proved by the
2. Was the tortfeasor (person doing the tort) an employee? claimant on the employer at the time of the commission of the tort.
• If the person who commits the tort is employed and acting in the course of
3. Was the employee acting in the course of employment when the
tort was committed?
employment, the employer will be liable without further proof.
• It could be said that the employer is at fault on a number of ways:
• Liability for employees: • The employer has chosen an employee who is liable to, or who could, commit a tort at work
• Traditional tests for employment status: • The training for the job may be inadequate or inappropriate.
• The employer should have supervised the employees, especially more effectively.
• Rules for establishing whether a relationship is one of employment
• However, employers are likely to want to allow employees, especially more
can be found in Ready Mixed Concrete v Minister of Pensions (1968)
and require the following: experienced ones, greater freedom to do their work, as otherwise an army of
supervisors will have to be employed to closely monitor every employee for every
• Work is provided in consideration of a wage
minute of work.
• The tortfeasor is under the other party’s control
• The other terms of the agreement are consistent with it being a • Liability for torts ‘closely connected’ to employment:
contract of employment; for example, there are provisions for holidays • There are cases where torfeasors do not fit the classic relationship of
etc.. employee/employer.
• Cox v Ministry of Justice (2016): • Traditionally employers will only be liable for the torts of their employees.
• An employer will only be liable for torts which the employee commits in • However, this has been developed in a series of recent cases:
the course of employment. An employer will usually be liable for: • Christian Brothers; Cox v Ministry of Justice (2016)
• Wrongful acts which are actually authorised by the employer, and • Armes v Nottinghamshire County Council (2017)
• Acts which are wrongful ways of doing something authorised by • Barclays Bank plc v Various Claimants (2020)
the employer, even if the acts themselves were expressly
forbidden by the employer.
• This gives clarity that where the person committing the tort is part of a business
entirely independent of the defendant’s business, vicarious liability will not apply.
• This traditional test is known as the ‘Salmond Test’
• Nature and purpose of vicarious liability: • ‘Akin to employment’ tests:
• Employers are vicariously liable for the torts of their • Where there is doubt about this, the courts use the ‘close connection test’.
employees that are committed during the course of • Examines the closeness of the connection between the work the employee was
employed to do and the tortious conduct:
employment: • What function or field of activities has been entrusted by the employer to the employee (i.e.
• Employer is more likely to have means to compensate the victim what was the nature of the job)?
than the employee, and can be expected to have insured against • Was there a sufficient connection between the position in which the employee was
that liability. employed and the wrongful conduct to make it right for the employer to be held liable?
• The tort will have been committed as a result of activity being • In Morrison Supermarkets v Various Claimants (2020), the Supreme Court found
performed by the employee on behalf of the employer. that an employee’s conduct did not meet the ‘close connection test’ when it
• The employer, by employing the employee to carry out the activity, amounted to pursuing a personal vendetta and that his personal motive meant
will have created the risk of tort committed by the employee. that he was not acting on his employer’s business.
• The employee will, to a greater or lesser degree, have been under • Where a defendant is held to be acting outside of the course of employment,
the control of the employer. they are described as being ‘on a frolic of their own’ – Joel v Morison (1834)
• Three questions must be asked in order to establish liability: • Liability for torts committed in the course of employment (or not):
1. Was a tort committed? (likely to be negligence) • The principle of vicarious liability is clearly where no fault has to be proved by the
2. Was the tortfeasor (person doing the tort) an employee? claimant on the employer at the time of the commission of the tort.
• If the person who commits the tort is employed and acting in the course of
3. Was the employee acting in the course of employment when the
tort was committed?
employment, the employer will be liable without further proof.
• It could be said that the employer is at fault on a number of ways:
• Liability for employees: • The employer has chosen an employee who is liable to, or who could, commit a tort at work
• Traditional tests for employment status: • The training for the job may be inadequate or inappropriate.
• The employer should have supervised the employees, especially more effectively.
• Rules for establishing whether a relationship is one of employment
• However, employers are likely to want to allow employees, especially more
can be found in Ready Mixed Concrete v Minister of Pensions (1968)
and require the following: experienced ones, greater freedom to do their work, as otherwise an army of
supervisors will have to be employed to closely monitor every employee for every
• Work is provided in consideration of a wage
minute of work.
• The tortfeasor is under the other party’s control
• The other terms of the agreement are consistent with it being a • Liability for torts ‘closely connected’ to employment:
contract of employment; for example, there are provisions for holidays • There are cases where torfeasors do not fit the classic relationship of
etc.. employee/employer.
• Cox v Ministry of Justice (2016): • Traditionally employers will only be liable for the torts of their employees.
• An employer will only be liable for torts which the employee commits in • However, this has been developed in a series of recent cases:
the course of employment. An employer will usually be liable for: • Christian Brothers; Cox v Ministry of Justice (2016)
• Wrongful acts which are actually authorised by the employer, and • Armes v Nottinghamshire County Council (2017)
• Acts which are wrongful ways of doing something authorised by • Barclays Bank plc v Various Claimants (2020)
the employer, even if the acts themselves were expressly
forbidden by the employer.
• This gives clarity that where the person committing the tort is part of a business
entirely independent of the defendant’s business, vicarious liability will not apply.
• This traditional test is known as the ‘Salmond Test’
