Introduction
Vicarious liability, a significant doctrine in tort law, establishes that one party can be held liable for the wrongful actions of another, despite not being directly involved in the act. This principle deviates from the conventional notion of individual responsibility and primarily arises within the context of employment or similar relationships. The technical foundations of vicarious liability require a two-stage test. The first stage examines the relationship between the tortfeasor and the defendant to determine if it is capable of giving rise to vicarious liability. The second stage examines the connection between the wrongful conduct and the relationship between the tortfeasor and the defendant. These requirements aim to distribute the responsibility for wrongful actions to those in a position to control or benefit from the conduct of others, ensuring fairness and promoting a high standard of care.
The Relationship of Employment: First Stage of Vicarious Liability
The initial inquiry into cases for vicarious liability involves determining the nature of the relationship between the individual who committed the tort and the party who might be held liable. Traditionally, this relationship was defined by a contract of employment. However, through a series of key cases, this concept has broadened to include relationships 'akin to employment'. The landmark case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, expanded the scope of vicarious liability to include scenarios where a formal employment contract does not exist but a relationship resembles employment in its nature. This case, often referred to as the Christian Brothers case, specified that vicarious liability may arise where five incidents are met. These include an analysis of the employer's ability to compensate the victim, whether the tort was committed as a result of an activity undertaken for the employer, whether it was part of the employer’s business activity, whether a risk was created by the employer by engaging the employee, and finally whether the employee was under the employer's control. This has evolved from the traditional ‘control test’ laid out in Mersey Docks and Harbour Board v Coggins [1947] AC 1, which focused on who controls not only the task but the method of performance, which was deemed impractical for professional relationships. The ‘akin to employment’ test has been further clarified in the Supreme Court decision of Cox v Ministry of Justice [2016] UKSC 10, where it was determined that the Ministry of Justice could be held vicariously liable for the negligence of a prisoner carrying out tasks in the prison kitchen. Furthermore, Armes v Nottinghamshire CC [2017] UKSC 60 established that local authorities can be vicariously liable for the actions of foster parents due to their role in placing and supervising the children, even though foster parents are not direct employees.
Close Connection Test: Second Stage of Vicarious Liability
Once the appropriate relationship is established, the second phase of the vicarious liability test examines the connection between the tort and that relationship. The ‘close connection’ test, first established in Lister v Hesley Hall [2002] 1 AC 215, replaced the traditional ‘Salmond’ test that required an act to either be authorised or an improper mode of carrying out an authorised act. The close connection test requires a sufficiently close connection between the wrongful act and the nature of employment. This has enabled vicarious liability to be extended to cases of intentional wrongdoing, as explored in Mattis v Pollock [2003] 1 WLR 2158. In this case, the court found that a nightclub owner could be held vicariously liable for the actions of a doorman who used excessive violence outside the club, as the doorman was expected to use an aggressive manner to carry out his duties. In Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 11, the Supreme Court found that an employer was vicariously liable for the violent actions of a kiosk attendant who had acted outside his authorised remit, so long as he purports to act on the employer's business. However, in Wm Morrisons Supermarket plc v Various Claimants [2020] UKSC 12, this judgment was dialled back by holding that if an employee acts with the intention of harming his employer, it is deemed to be outside the scope of employment and cannot give rise to vicarious liability, even if it was work related, as it was determined that this was not part of the employer's business, but a private vendetta.
Travel and the Scope of Employment
The question of whether acts carried out during travel can constitute part of the scope of employment has also been considered. In Smith v Stages [1989] AC 928, the House of Lords established that an employee travelling between workplaces during work hours or who is paid to travel can be acting in the course of employment. The key test is whether the employee is required to travel as part of his work. The court distinguished this from scenarios in which an employee is merely compensated for their travel to work each day, in which case the travel is not in the course of their employment. It highlights the fact that it is a question of whether the employee is employed to travel, as opposed to being compensated for it.
Non-Delegable Duties: A Separate Form of Liability
In contrast to vicarious liability, a non-delegable duty is a personal duty to ensure care is taken and is not discharged by delegating the function to another party. The key case, Woodland v Essex CC [2013] UKSC 66, clarifies this concept. The case established that a school could not delegate its duty to ensure care was taken during swimming lessons to an independent contractor and was therefore liable for the negligence of the instructors. The court laid down five characteristic features to establish the existence of a non-delegable duty. It is necessary to show a vulnerability and dependence, an antecedent relationship that involves control, that the party had no control over how obligations were performed, the existence of a delegation to a third party, and a negligent breach of that very function.
Specific Scenarios and Liability Limits
Several unique scenarios present challenges to the application of vicarious liability. In Century Insurance v NI Transport Board [1942] AC 509, the House of Lords held that an employer was liable for a driver who lit a cigarette near petrol being unloaded at the garage as this was a negligent method of carrying out his employment duties. Similarly, in Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214, the court found that an employer could be vicariously liable for an assault committed by a managing director in an after-hours drinking session that was sufficiently connected to his managerial position. However, a line is drawn at situations such as in Various Claimants v Barclays Bank [2020] UKSC 13 where a doctor conducting health checks was found to be an independent contractor, therefore vicarious liability did not apply to Barclays. Moreover, the courts have also considered 'borrowed employees', where an employee is temporarily moved to a different entity. In Viasystems v Thermal Transfer [2006] 2 WLR 428, the Court of Appeal considered this question, laying down two differing tests: May LJ’s test centered on who had the power to give orders as to how work should be performed, whilst Rix LJ’s test focused on whether the employee was so much part of the work of both employers that is was fair to make them jointly liable, taking into account factors such as length of secondment and who uses whose equipment. It is worth noting that the courts take into consideration that vicarious liability is not a fault based system when determining liability.
The "Frolic of Their Own" Exception
The expression "frolic of their own" indicates situations where an employee acts outside the scope of their employment. The case Morgans v Launchbury [1972] AC 1 illustrates this concept, determining that a wife, as the owner of a car, was not vicariously liable for the negligent driving of her husband's friend, who was not using the car under any delegation or task, even though it was the “family car”. Additionally, the ruling in Weddall v Barchester Healthcare Limited [2012] EWCA Civ 25 found that an attack by an employee after being asked to do an extra shift did not constitute part of the scope of employment and was merely a long term grudge unrelated to work. This differentiates from Wallbank v Fox Designs, which was heard alongside Weddall. Here, the court found that the assault was part of the scope of employment, as it was an instantaneous reaction to a work instruction.
Conclusion
The examination of cases for vicarious liability shows the complexities of this area of tort law. The courts have developed various tests to determine both the nature of the relationship between the tortfeasor and the defendant, and the connection between the tort and that relationship. Beginning from a traditionally narrow focus on ‘control’ and contractual employment, vicarious liability has grown to include relationships 'akin to employment', and consider intentional wrongdoing under the ‘close connection’ test, as long as the employee is purporting to act for the employer. The 'frolic of their own' exception places a sensible limit to this responsibility. These principles demonstrate the law’s continuous attempt to balance employer liability and social justice for victims of torts. Cases such as Christian Brothers, Cox and Armes have expanded the scope of vicarious liability, yet cases such as Barclays Bank and Morrisons have curbed its expansion. Meanwhile, cases such as Woodland present a clear distinction with regard to non-delegable duties of care, which are not based on the principles of vicarious liability, despite presenting similar scenarios.
