Having discussed employers’ primary non-delegable duty in tort in Chapter 8, we will now move on to situations in which the employer is liable for the torts of his employee, which cause damage to a third party. Under vicarious liability, a blameless employer may be liable for a wrong committed by his employee ‘while acting in the course of his employment’. This does not mean that the employer is liable instead of the employee; the primary liability is that of the employee who committed the wrong and vicarious liability is thus a form of secondary liability. The policy justifications for what is essentially strict liability include: the ‘benefit and burden’ principle, also that the employer is in a position to be aware of risks and take steps to avoid them, the fact that the employer is best able to insure against liability (and thus has the ‘deeper pocket’) and lastly, is best able to spread the cost of liability though higher prices to the general public.
We’ve seen that the following are the three key requirements to establish vicarious liability:
- Firstly, there must be an employer–employee relationship between the tortfeasor, or wrongdoer, and the defendant employer; and
- Secondly, the employee must have committed a tort; and
- Thirdly, the tort must have been committed while the employee was acting in the course of employment.
Recent years have seen a general expansion in vicarious liability, due to the way the courts have interpreted these requirements, particularly the first and the third. In respect of the employment relationship, both cases of clerical abuse and those involving novel and non-traditional styles of employment have led to the recognition of the relationship ‘akin to employment’, as in the Catholic Child Welfare Society case and Cox v Ministry of Justice. The various tests developed by earlier case law can still be very relevant, however. Any tort can give rise to vicarious liability, including breach of statutory duty.
Acting in the course of employment can include situations in which the employee is acting against express prohibition or even criminally. In relation to criminal acts such as child abuse, the key case of Lister v Hesley Hall adopted a test from Canadian jurisprudence, namely the ’close connection’ test to establish whether the tortfeasor was acting in the course of employment.
Vicarious liability is one of the most dynamically developing areas of tort law, therefore one which has seen a number of important recent Supreme Court cases, such as: Mohamud v Morrison Supermarkets, Armes v Nottinghamshire County Council, Various Claimants v Morrison Supermarkets, and Various Claimants v Barclays Bank. The policy considerations behind these decisions are challenging and varied and worthy of your consideration.