Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties.Markesinis, Johnston, Deakin, p. 665 This liability has expanded in recent years following the decision in Lister v Hesley Hall LtdLister v Hesley Hall Ltd 1 AC 215 to better cover intentional torts, such as sexual assault and deceit. Historically, it was held that most intentional wrongdoings were not in the course of ordinary employment, but recent case law suggests that where an action is closely connected with an employee's duties, an employer can be found vicariously liable.Steele, p. 578 A leading case is the Supreme Court decision in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools, which emphasised the concept of "enterprise risk". UKSC 5
Justification for such wide recovery has been made in several areas. The first is that, as is common in tort law, policy reasons should allow those injured to have means of compensation. Employers generally have larger assets, and greater means with which to offset any losses (deep pocket compensation)Steele, p. 567 Secondly, it is under the instruction of an employer by which a tort is committed; the employer can be seen to gain from the duties of their employees, and thus must bear the consequences of any wrongdoings committed by them. Lastly, it has been justified as a way to reduce the taking of risks by employers, and to ensure adequate precautions are taken in conducting business.Flannigan, p. 26
Developments in establishing liability An employer is strictly liable for torts committed by those under his command, when they are found to be his employees. To this end, the courts must find a sufficient relationship to this effect, where issues of vicarious liability are raised. It has been stated judicially that no one test can adequately cover all types and instances of employment; 2 QB 173, p. 184 ICR 365, p. 369 thus, generally, the tests used and ultimate determination rest upon the individual aspects of each case, looking at all the factors as a whole.Cooke, p. 463 For example, it need not matter that an employer classifies a relationship as one of independent contractor, if all the other factors represent a relationship of employee.Ferguson v John Dawson & Partners (Contractors) Ltd 1 WLR 1213
Historical tests centered around finding control between a supposed employer and an employee, in a form of master and servant relationship.Markesinis, Johnston, Deakin, p. 668 The roots for such a test can be found in Yewens v Noakes,Yewens v Noakes (1880) 6 QBD 530 where Bramwell LJ stated that:
"...a servant is a person who is subject to the command of his master as to the manner in which he shall do his work."
The control test effectively imposed liability where an employer dictated both what work was to be done, and how it was to be done.Flannigan, p.31 This is aptly suited for situations where precise instructions are given by an employer; it can clearly be seen that the employer is the causal link for any harm which follows.Flannigan, p. 38 If on the other hand an employer does not determine how an act should be carried out, then the relationship would instead be one of employer and independent contractor. This distinction was explained by Slesser LJ:
In recent years, as the duties of employees have grown ever more specialised and far reaching, the control test has seen less primary use in establishing liability. It is difficult to state for example that a hospital administrator controls the method and actions of a professional doctor, despite liability having been clearly established in such cases.Gold v Essex County Council 2 KB 293 Different formulations of the test have been proposed, in an attempt to rectify these problems. One such formulation focuses on the ability of an employer to specify where and when tasks be carried out, and with whose tools and materials.Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 2 QB 497
Other tests of employment have focused on different contractual and external factors. Lord Denning proposed a test based on the integration of an individual to a business or organisation.Stevenson Jordan & Harrison v McDonnell & Evans 1 TLR 101 Tests based on the economic relationship between an employer and employee have found favour in subsequent cases, notably Market Investigations Ltd v Minister of Social Security,Market Investigations Ltd v Minister of Social Security 2 QB 173 in the decision of Lord Cooke. Here, it was argued that where a person was in business on their own account (and at their own risk), they would be under a contract for services, whilst otherwise they would be under a contract of service.Markesinis, Johnston, Deakin, p. 671 This idea have been cited with approval by the Privy Council,Lee Ting Sang v Chung Chi-Keung IR LR 236 with several relevant factors being considered, such as risk of loss, and chance of profit.
As can be noted, liability is generally not extended to the acts of independent contractors.Markesinis, Johnston, Deakin, p. 695 Though such a distinction has been criticised,McKendrick, p. 770 there are several circumstances in which an employer may be liable for the acts of contractors. If an employer commissions a tort,Ellis v Sheffield Gas Consumers Co (1853) 2 E & B 767 this will render the employer a joint tortfeasor.Markesinis, Johnston, Deakin, p. 696 Additionally, where an employer is negligent in selecting a competent third party contractor, liability may be imposed.Pinn v Rew (1916) 32 TLR The broadest exception however is where a non-delegable duty is imposed upon an employer, either by statute or through common law, to prevent the harm of others. Where a duty is imposed by statute, either to carry out work in a certain way, or to take due care in carrying out work, then this is non-delegable.Gray v Pullen (1864) 5 B&S 970 Common law duties may arise in several exceptional circumstances. One such is where an activity is being undertaken which is especially hazardous, and involves obvious risks of damage. This duty was recognised in Honeywill and Stein Ltd v Larkin Brothers Ltd,Honeywill and Stein Ltd v Larkin Brothers Ltd 1 KB 191 where photographers who negligently photographed the interior of a theatre set alight to the building. Their employers were found vicariously liable, as the dangerous methods of photography created a fire hazard. Additionally, where work is being undertaken on a highway, a non-delegable duty is created not to endanger any road users.Penny v Wimbledon Urban District Council 2 QB 212 Lastly, occupiers are liable in full where an independent contractor, through negligence, allows fire to spread to neighbouring land.Johnson v BJW Property Developments Ltd EWHC 1131
The connection of torts to employment
Once it is established that the sufficient relationship of employer and employee exists, it is necessary that any tort be committed in the course of employment.Markesinis, Johnston, Deakin, p. 678 As with distinguishing an employer and employee relationship, there is no one test which adequately establishes which acts employers are vicariously liable for. Such determinations rest upon precedent, and the facts of each individual case. A preferred test of the courts was formulated by John William Salmond, some 100 years ago, which states that an employer will be held liable for either a wrongful act they have authorised, or a wrongful and unauthorised mode of an act that was authorised., p. 443 The rationale for this is policy based; if an employer could simply issue detailed and long prohibitions on what an employee was not to do, they could never be found vicariously liable for the wrongdoings of their employees.Markesinis, Johnston, Deakin, p. 683 However, a distinction can be drawn between acts which are prohibited, and acts which take employees out of the course of their employment. An illustration of the test is provided by two contrasting cases, Limpus v London General Omnibus CompanyLimpus v London General Omnibus Company (158 ER 993 and Beard v London General Omnibus Company,London General Omnibus Company 2 QB 530 both involving road collisions. In the former, a driver pulled in front of another rival omnibus, in order to obstruct it. Despite express prohibitions from the employer, they were found liable; this was merely an unauthorised mode of the employee carrying out his duties (driving), not an entirely new activity.158 ER 993, p. 999 By contrast, in the latter case, the employer was not liable where a conductor (employed to collect fares on board the bus) negligently chose to drive the vehicle instead; this was completely outside of his duties. 2 QB 530, p. 534
The surrounding circumstances of wrongdoings are often important in deciding whether an act is in the course of employment or not. For example, where a professional rugby player was expressly prohibited in contract from assaulting another player, it was held that as it had been contemplated by the drafters, such an act was in the course of his employment.Gravil v Carrol EWCA Civ 689 Where in Century Insurance Co v Northern Ireland Road Transport BoardCentury Insurance Co v Northern Ireland Road Transport Board AC 509 an employee set alight to a petrol station, by throwing a match carelessly away while refuelling a petrol tanker, this was adjudged to have been in the course of his employment.
There have been contrasting judgments where employees have given lifts in their vehicles, during hours of employment, as to whether their employers can be vicariously liable. Two similar cases demonstrate this problem. The first, Conway v George Wimpey & Co LtdConway v George Wimpey & Co Ltd 2 KB 266 involved a driver, who, despite express prohibitions, gave a lift to an employee of another firm, and negligently injured him in an accident. 2 KB 266, p. 268 No liability was imposed on the employer, as this was deemed to be an activity outside of the employee's duties. This can be compared to Rose v Plenty,Rose v Plenty 1 WLR 141 where liability was imposed where a small boy was injured in a road accident, while helping a milkman on his rounds. It has been stated that these two decisions are not reconcilable.Cooke, p. 434 However, Lord Denning offered some justification in Rose v Plenty for the distinction, stating that the employee, in allowing the boy to assist him, was not acting outside of his employment, but acting in furtherance of it (through the boy assisting his duties). 1 WLR 141, p. 144
"The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable."EWHC KB J39, at 5 Joel v Morison EWHC KB J39