By Amy Rees - Law Student @ Churchill College, Cambridge
The doctrine of vicarious liability says that A can be liable for B’s actions when A is B’s employer, or they are in a relationship akin to employment. If B commits a tort in the course of their employment, A will be liable. This doctrine is a controversial one and it is difficult to define exactly when it will apply.
Before 2013, vicarious liability only applied to employee-employer relationships. In 2013, 170 children brought a group claim against the Catholic Child Welfare Society. They were seeking compensation for sexual abuse they had suffered by priests who worked with the society. There was no employee/employer relationship and so it looked like the children would get no compensation. This was obviously an undesirable outcome. Instead, Lord Phillips laid down 5 conditions to help determine whether there was a relationship ‘akin to employment’. These conditions are as follows:
(i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.
(ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
(iii) The employee’s activity is likely to be part of the business activity of the employer.
(iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee.
(v) The employee will, to a greater or lesser degree, have been under the control of the employer.
The conditions demonstrate the ability of the law to adapt to new situations and protect us. Despite this, they are difficult to apply uniformly.
Furthermore, the term ‘course of employment’ has always been difficult to define. Originally, the Salmond test (1907) was used. A wrongful act was done in the course of employment if it was either a) a wrongful act authorised by the master, or b) a wrongful and unauthorised mode of doing some act authorised by the master. This changed in another child sexual abuse case, Lister v Hesley Hall (2002). Under the Salmond test, there would be no liability. The Court implemented a new test which said that a tort is committed in the course of employment if it is ‘so closely connected with his employment that it would be fair and just’ to hold the employer vicariously liable.
What does the sufficiently close connection test mean in practice? In Mattis v Pollock (2003), a bouncer stabbed the claimant, with who he had fought earlier in the night. Would you have held the bouncer’s employer liable? The Court did. They said that because the bouncer was encouraged to perform his duties aggressively and physically mishandle people, the stabbing was sufficiently closely connected to his job.
The test evolved once again in Mohamud v WM Morrison Supermarkets plc (2016), which is a controversial decision. In that case, the claimant asked an employee (Mr Khan) at the petrol station if he could print off a document. Mr Khan told him to get lost and shouted racial abuse at the claimant as he returned to his car. Mr Khan then beat him up. Is this a sufficiently close connection to the course of his employment? Lord Toulson thought so. He said that the sequence of events, starting with refusing to print off the documents, was one episode and was within the course of employment. This seems to expand the scope of vicarious liability to the extent that any tort committed at work will lead to liability for the employer.
The latest on vicarious liability comes in the case of Various Claimants v Barclays Bank (2020). Barclays had contracted out medical exams of new employees and the doctor contracted sexually abused some of them. The doctor died and so the only option for the employees was to sue the bank itself. Limiting the drastically widening scope of vicarious liability, the Court held that the doctor was an independent contractor and therefore that there was no claim.
Vicarious liability is a constantly evolving doctrine and we have not seen the last of the changes to it. There is a reason that we rely on it in so many situations – employers have insurance. This means that they can always pay – but should they have to?
Further reading:
Casenotes of WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020]. https://mcbridesguides.com/wp-content/uploads/2020/05/WM-Morrison-Supermarkets-plc-v-Various-Claimants-UKSC.pdf These are summaries of the cases and then the author’s opinion on the cases. Bear in mind that this author has a very strong opinion that is not shared by everyone!
Essay on vicarious liability, looking mainly at the motivations and justifications for it: https://www.lawteacher.net/free-law-essays/tort-law/tort-vicarious-liability.php