“The law of vicarious liability is on the move,” as declared by Lord Phillips in Catholic Child
Welfare Society v Various Claimants (2012). Ward LJ in E v English Province of Our Lady Charity
also observed that the Lordships in Hawley v Luminar had extended the conventional
boundaries of vicarious liability. In light of the recent decisions by the Court of Appeal and the
Supreme Court, this paper shall examine how the law on vicarious liability has evolved to ensure
that the injured are properly compensated.
What is Vicarious Liability?
It is essentially a concept that revolves around the idea that a person is held liable for any
negligent act and, sometimes intentional act of another person, per Lister v Hesley Hall Ltd.
Professor William stated that its purpose is to seek for a ‘solvent partner’ i.e. someone with a
‘deep pocket’ to compensate the victim, usually the employer of the tortfeasor. It is said to be a
strict, secondary liability as it is not an independent tort per se.
In order to establish vicarious liability, the two requirements laid down by Paul Giliker in
“Vicarious Liability in Tort: A Comparative Perspective” must be met - the tortfeasor must be an
employee, and that he or she must have committed the tort during the course of employment.
I. Who is an ‘Employee’?
Mackenna J in Ready Mix Concrete v Minister of Pensions (1968) described an employee as
someone who agrees to provide his effort and skill in return for remuneration under a contract
of service. The essence of establishing an employer-employee relationship is said to be the
‘degree and extent of control’ the employer has over the employee’s performance. This can be
seen in Market investigations Ltd v Minister of Social Security (1969), where the court applied
the ‘control’ test and held that the company had sufficient degree of control over the way the
part-time interviewer carries out her job and thus, she was in fact an employee of the company.
Nonetheless, the law in this area has since been progressing so as to allow even relationship
‘akin to employment’ and unincorporated associations to meet the requirement under vicarious
, liability. For instance, the court in Catholic Child held the society to be vicariously liable for the
priest's sexual and physical abuse of the children during his visits. As such, the courts’ decision
to extend the ambit of vicarious liability seems to be justified in the name of moral and social
justice. The law was further developed in Cox v Ministry of Justice (2016) where the courts
considered whether the Ministry of Justice could be vicariously liable for the actions of a
prisoner who was working as a minimally paid kitchen staff in the prison. The Court of Appeal as
affirmed by the Supreme Court, held that the relationship between the ministry and the
prisoner is one that is ‘akin to employment’, as there is a high degree of control by the ministry
over the prison and that there is an economic benefit from the work of the prisoner.
The cases above represent a shift from the traditional approach which was rather rigid to a
much more lenient approach, as observed by Mark Lunney and Ken Oliphant. Again in Armes v
Nottinghamshire (2017), the local authority was held to be vicariously liable for the foster
parents’ actions considering that they had sufficient degree of control over the foster carer and
that they have ‘deeper pockets’.
Nonetheless, the courts have been cautious so as to not extend the scope of vicarious liability
beyond necessary, bringing the movement to a juddering halt, as seen in Barclays Bank v
Various Claimants. The bank was faced with claims brought by 126 women who alleged that
they have been sexually abused by the general practitioner (an independent contractor) during
the pre employment medical checks. The Court of Appeal held the bank to be vicariously liable
as the work carried out by the tortfeasor was for the benefit of the bank and was an ‘integral
part of the business activity of the bank’ albeit this was overruled by the Supreme Court later
on in 2020. Lady Hale stated that there should be a clear distinction between an
employer-employee relationship or one that is akin to it, and an independent contractor.
II. Course of Employment?
Moving on to the second element, the courts have been struggling to find a ‘one size fits all’
approach though it seems that it is impossible to do so as it all boils down to the facts of each
Welfare Society v Various Claimants (2012). Ward LJ in E v English Province of Our Lady Charity
also observed that the Lordships in Hawley v Luminar had extended the conventional
boundaries of vicarious liability. In light of the recent decisions by the Court of Appeal and the
Supreme Court, this paper shall examine how the law on vicarious liability has evolved to ensure
that the injured are properly compensated.
What is Vicarious Liability?
It is essentially a concept that revolves around the idea that a person is held liable for any
negligent act and, sometimes intentional act of another person, per Lister v Hesley Hall Ltd.
Professor William stated that its purpose is to seek for a ‘solvent partner’ i.e. someone with a
‘deep pocket’ to compensate the victim, usually the employer of the tortfeasor. It is said to be a
strict, secondary liability as it is not an independent tort per se.
In order to establish vicarious liability, the two requirements laid down by Paul Giliker in
“Vicarious Liability in Tort: A Comparative Perspective” must be met - the tortfeasor must be an
employee, and that he or she must have committed the tort during the course of employment.
I. Who is an ‘Employee’?
Mackenna J in Ready Mix Concrete v Minister of Pensions (1968) described an employee as
someone who agrees to provide his effort and skill in return for remuneration under a contract
of service. The essence of establishing an employer-employee relationship is said to be the
‘degree and extent of control’ the employer has over the employee’s performance. This can be
seen in Market investigations Ltd v Minister of Social Security (1969), where the court applied
the ‘control’ test and held that the company had sufficient degree of control over the way the
part-time interviewer carries out her job and thus, she was in fact an employee of the company.
Nonetheless, the law in this area has since been progressing so as to allow even relationship
‘akin to employment’ and unincorporated associations to meet the requirement under vicarious
, liability. For instance, the court in Catholic Child held the society to be vicariously liable for the
priest's sexual and physical abuse of the children during his visits. As such, the courts’ decision
to extend the ambit of vicarious liability seems to be justified in the name of moral and social
justice. The law was further developed in Cox v Ministry of Justice (2016) where the courts
considered whether the Ministry of Justice could be vicariously liable for the actions of a
prisoner who was working as a minimally paid kitchen staff in the prison. The Court of Appeal as
affirmed by the Supreme Court, held that the relationship between the ministry and the
prisoner is one that is ‘akin to employment’, as there is a high degree of control by the ministry
over the prison and that there is an economic benefit from the work of the prisoner.
The cases above represent a shift from the traditional approach which was rather rigid to a
much more lenient approach, as observed by Mark Lunney and Ken Oliphant. Again in Armes v
Nottinghamshire (2017), the local authority was held to be vicariously liable for the foster
parents’ actions considering that they had sufficient degree of control over the foster carer and
that they have ‘deeper pockets’.
Nonetheless, the courts have been cautious so as to not extend the scope of vicarious liability
beyond necessary, bringing the movement to a juddering halt, as seen in Barclays Bank v
Various Claimants. The bank was faced with claims brought by 126 women who alleged that
they have been sexually abused by the general practitioner (an independent contractor) during
the pre employment medical checks. The Court of Appeal held the bank to be vicariously liable
as the work carried out by the tortfeasor was for the benefit of the bank and was an ‘integral
part of the business activity of the bank’ albeit this was overruled by the Supreme Court later
on in 2020. Lady Hale stated that there should be a clear distinction between an
employer-employee relationship or one that is akin to it, and an independent contractor.
II. Course of Employment?
Moving on to the second element, the courts have been struggling to find a ‘one size fits all’
approach though it seems that it is impossible to do so as it all boils down to the facts of each
