## Introduction

Vicarious liability is a doctrine in tort that allows one party to be held liable for the wrongful acts of another. It commonly arises in employment settings, but the courts have extended it to relationships that operate much like employment. Modern cases apply a two-stage test: first, whether the relationship is capable of giving rise to vicarious liability; second, whether the wrongful act is sufficiently connected to that relationship.

The approach aims to place responsibility on organisations that create or benefit from a risk, whilst keeping fair limits on liability. It is distinct from non-delegable duties, which impose a personal duty of care that cannot be discharged by hiring someone else to perform the task.

## What You’ll Learn

- How the two-stage test for vicarious liability works
- Which relationships count as “akin to employment”
- How the “close connection” test applies to intentional wrongdoing
- When travel and out‑of‑hours conduct fall within the scope of employment
- How courts deal with independent contractors and borrowed employees
- The difference between vicarious liability and non-delegable duties
- Key cases to cite and how to apply them in problem questions

## Core Concepts

### Stage 1: A Relationship Capable of Giving Rise to Liability

Traditionally, vicarious liability required a contract of employment. The classic “control test” in Mersey Docks and Harbour Board v Coggins [1947] AC 1 asked who had control over not just the task but how it was done. Modern law considers a wider set of factors.

- Various Claimants v Catholic Child Welfare Society (the Christian Brothers case) [2012] UKSC 56
  - The Supreme Court confirmed liability can arise for relationships “akin to employment”. Key factors include:
    - The defendant’s means to compensate and insure against the risk
    - The tortfeasor’s activity was on behalf of the defendant
    - The activity was an essential part of the defendant’s business
    - The defendant created or significantly increased the risk by assigning the role
    - The defendant had a degree of control (not necessarily day‑to‑day)
- Cox v Ministry of Justice [2016] UKSC 10
  - A prisoner working in a prison kitchen was held to be in a relationship akin to employment with the Ministry of Justice.
- Armes v Nottinghamshire CC [2017] UKSC 60
  - A local authority was vicariously liable for abuse by family placement parents, despite family placement carers not being employees.

Limits remain:

- Various Claimants v Barclays Bank plc [2020] UKSC 13
  - A doctor carrying out medical checks for the bank was an independent contractor, so the bank was not vicariously liable.

### Stage 2: A Sufficiently Close Connection with the Tort

The Salmond test (authorised act or unauthorised mode of an authorised act) has been replaced by the “close connection” test.

- Lister v Hesley Hall Ltd [2002] 1 AC 215
  - Where the tort is closely linked to the duties assigned, the employer can be liable, even for intentional wrongdoing.
- Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 11
  - An employee who abused and assaulted a customer did so in the context of dealing with a customer while purporting to act for the employer’s business, so the employer was liable.
- Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC 12
  - A later decision clarified that if the employee acts solely for personal reasons (a vendetta against the employer), that falls outside the scope of employment.

Other applications:

- Mattis v Pollock [2003] 1 WLR 2158
  - A nightclub owner was liable for a doorman’s violent attack after a confrontation linked to his role. The aggressive conduct was closely tied to the job as performed.

### Scope Indicators: Travel, Out‑of‑Hours Conduct, Risky Methods, and “Frolics”

The “course of employment” can include travel and social events if sufficiently tied to the job.

- Travel: Smith v Stages [1989] AC 928
  - Travel between workplaces during paid working time or where travel is required by the job is likely to be in the course of employment. Ordinary commuting is not.
- Social events and after‑hours conduct: Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214
  - An assault at a late‑night work drinks event by a managing director was sufficiently connected to his role and authority; the employer was liable.
- Risky method of doing the job: Century Insurance Co Ltd v Northern Ireland Transport Board [1942] AC 509
  - A driver lit a cigarette near petrol while unloading. This was a negligent way of doing authorised work, so the employer was liable.
- “Frolic of their own”
  - Morgans v Launchbury [1973] AC 127: no liability where a driver used a car for his own purposes without agency.
  - Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25: an assault motivated by a long‑standing grudge was not within the scope of employment.
  - Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25: a spontaneous assault in response to a work instruction was within the scope.

### Borrowed Employees and Dual Vicarious Liability

Sometimes a worker is temporarily under the control of another organisation.

- Mersey Docks shows control remains central, but not decisive alone.
- Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510
  - Dual vicarious liability may be appropriate where two parties share sufficient control and the worker is integrated into both operations. Factors include:
    - Who gives instructions for the specific task
    - Incorporation into the respective businesses
    - Duration of the arrangement
    - Who supplies equipment and bears risk

### Non‑Delegable Duties: Not the Same as Vicarious Liability

A non‑delegable duty is a personal duty to ensure reasonable care is taken, even if the task is given to someone else.

- Woodland v Essex CC [2013] UKSC 66
  - A school owed a non‑delegable duty in relation to a pupil’s swimming lesson run by an independent contractor. Helpful features include: - The claimant is vulnerable or dependent on the defendant’s protection - There is a pre‑existing relationship (e.g., school‑pupil) placing the claimant in the defendant’s care - The claimant has no control over how the third party performs the function - The defendant has assumed a positive duty to protect the claimant from harm - The third party was negligent in performing that very function
    This is a separate route to liability and does not depend on proving an employment‑type relationship.

## Key Examples or Case Studies

- Various Claimants v Catholic Child Welfare Society [2012] UKSC 56
  - Extended vicarious liability to relationships akin to employment using practical factors beyond strict control.

- Cox v Ministry of Justice [2016] UKSC 10
  - Prisoners working in a prison kitchen stood in a relationship akin to employment; the MoJ was liable for negligence.

- Armes v Nottinghamshire CC [2017] UKSC 60
  - Local authority liable for abuse by family placement carers; important application of the “akin to employment” concept.

- Barclays Bank plc [2020] UKSC 13
  - Doctor performing pre‑employment medicals was truly independent; no vicarious liability for the bank.

- Lister v Hesley Hall Ltd [2002] 1 AC 215
  - Introduced the “close connection” test; abuse by a warden was closely linked to his residential care duties.

- Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 11
  - Assault on a customer during a work interaction was closely connected to the employee’s role.

- Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC 12
  - Employee’s intentional data breach driven by a personal vendetta fell outside the scope of employment.

- Mattis v Pollock [2003] 1 WLR 2158
  - Violence by a bouncer after a work‑related incident remained closely linked to the role as performed.

- Smith v Stages [1989] AC 928
  - Paid travel between workplaces was within the course of employment.

- Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214
  - Late‑night assault by a managing director at a work event was sufficiently connected to his managerial position.

- Century Insurance Co Ltd v Northern Ireland Transport Board [1942] AC 509
  - Careless method of doing authorised work kept the conduct within the course of employment.

- Viasystems v Thermal Transfer [2006] QB 510
  - Dual liability possible where control and incorporation are shared in a borrowed employee situation.

- Morgans v Launchbury [1973] AC 127
  - No liability where the driver acts on a purely personal errand without agency.

- Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25
  - Assault driven by a long‑standing grudge was not sufficiently connected to employment.

- Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25
  - A sudden assault triggered by a work instruction was sufficiently connected to the job.

- Woodland v Essex CC [2013] UKSC 66
  - Separate route to liability via a non‑delegable duty; useful where a contractor is involved.

## Practical Applications

- Map the relationship first
  - Is there a contract of employment? If not, assess whether the relationship is akin to employment:
    - Activity carried out on the defendant’s behalf and essential to the business
    - Risk created or increased by assigning the role
    - Practical ability to compensate and insure
    - A real measure of control, even if not day‑to‑day

- Consider independent contractors
  - Genuine independent professionals (e.g., in Barclays) generally fall outside vicarious liability. If a contractor is involved, think about a non‑delegable duty instead (Woodland).

- Watch for borrowed employees
  - Ask who directed the specific work, who supplied equipment, how integrated the worker was, and the duration of the arrangement. Dual liability (Viasystems) may be appropriate.

- Apply the close connection test to the facts
  - Ask whether the tort is sufficiently linked to the employee’s assigned role:
    - Interaction with customers or service users (Lister, Mohamud)
    - Risky methods of doing authorised tasks (Century Insurance)
    - Security or enforcement roles where force is envisaged (Mattis)

- Assess travel and out‑of‑hours conduct
  - Paid travel between workplaces or travel required by the job is likely within scope (Smith v Stages).
  - Work‑related social events, especially where authority is asserted, may be within scope (Bellman).

- Identify “frolic” situations
  - Personal vendettas or purely private errands fall outside scope (Morrisons 2020; Morgans; Weddall). A swift reaction to a work instruction may still be within scope (Wallbank).

- Keep non‑delegable duties in view
  - Particularly relevant in schools, hospitals, and similar settings where the defendant assumes a protective role over a vulnerable person (Woodland).

- Structure your answer
  1. Stage 1: relationship (employment or akin to employment)
  2. Stage 2: close connection to the role
  3. Exclusions: independent contractor, frolic/private vendetta
  4. Alternatives: non‑delegable duty
  5. Remedies and policy: who can compensate and insure?

## Summary Checklist

- Identify a qualifying relationship: employment or akin to employment
- Apply Christian Brothers factors; consider Cox and Armes
- Exclude genuine independent contractors (Barclays), unless a non‑delegable duty applies
- Apply the close connection test (Lister; Mohamud)
- Check for personal vendettas or frolics (Morrisons 2020; Morgans; Weddall)
- Consider risky methods of authorised work (Century Insurance)
- Assess travel and out‑of‑hours conduct (Smith v Stages; Bellman)
- For borrowed employees, consider shared control and incorporation (Viasystems)
- Distinguish vicarious liability from non‑delegable duties (Woodland)

## Quick Reference

| Topic                    | Leading authority                                                 | Short rule                                                            |
| ------------------------ | ----------------------------------------------------------------- | --------------------------------------------------------------------- |
| Akin to employment       | Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 | Liability can arise beyond contracts of employment.                   |
| Prisoner working         | Cox v Ministry of Justice [2016] UKSC 10                          | Prison work can create an employment‑like relationship.               |
| Family placement carers  | Armes v Nottinghamshire CC [2017] UKSC 60                         | Local authority liable for family placement carers’ torts.            |
| Independent contractor   | Various Claimants v Barclays Bank [2020] UKSC 13                  | True contractors fall outside vicarious liability.                    |
| Close connection         | Lister v Hesley Hall [2002] 1 AC 215                              | Liability if the tort is closely linked to assigned duties.           |
| Personal vendetta        | Wm Morrison Supermarkets v Various Claimants [2020] UKSC 12       | Purely personal motives break the link with employment.               |
| Travel in course of work | Smith v Stages [1989] AC 928                                      | Paid/required work travel is within scope; ordinary commuting is not. |
| Borrowed employee/dual   | Viasystems v Thermal Transfer [2006] QB 510                       | Dual vicarious liability may be appropriate.                          |
| Non‑delegable duty       | Woodland v Essex CC [2013] UKSC 66                                | Personal duty to ensure care cannot be discharged by delegation.      |

Vicarious Liability Cases