4.3.2 Vicarious Liability Lecture

Vicarious liability deals with situations in which an individual has committed a tortious act whilst acting on behalf of another. The primary situation in which it arises is where someone acts on behalf of their employer. It is a way in which tortious acts may be attributed to a defendant who was not directly involved in the them. 

Establishing vicarious liability requires three primary criteria to be met:

  1. Relationships of Control

Employment relationships are the most common in this regard, but principals and agents also enjoy this relationship of control. The law has developed a number of tests, to use in a complimentary fashion, to discern whether a sufficient relationship exists between employees and contractors:

  • The control test:

This involves asking who is in control of the individual’s work, Yewen v Noakes [1880].

  • The organisation/ integration test:

‘[U]nder a contract of service, a man is employed as part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it, but is only accessory to it’, Lord Denning in Stevenson, Jordan and Harrison v MacDonald & Evans [1952].

  • The economic reality test:

This test involves examining the characteristics of the subject’s work arrangements against a checklist of signs of conventional employment, Ready Mixed Concrete v Minister of Pensions [1968]. These signs were;

  • The individual must provide work or skill for the employer in return for or other remuneration.
  • The individual must have agreed that they will work under the control of the employer.
  • The other circumstances of the individual’s working arrangements must be consistent with those of an employee.
  1. Establishing a Tortious Act

It must be shown that the individual has committed a tortious act, since no secondary liability can be imposed on a third party before someone has attracted primary liability. However, if an employee enjoys immunity from lawsuit by merit of their personal status, their employer will not be covered by this protection, Broom v Morgan [1953].

  1. Tortious Acts Must be in the Course of Employment

The tortious act must occur in the course of the employment, or the relevant equivalent for non-employee-employer relationships. There are some scenarios which can arise with regard to this element of liability:

  • Authorised Acts:

Express authorisation is not required; the key is to ascertain whether an employee has been given implied authority to act due to the scope of their employment, Poland v Parr & Sons [1927].

  • Authorised Acts in an Unauthorised Manner:

An employer may still be held liable for the acts of his employee, Century Insurance v NI Road Transport Board [1942]. However, where an employee acts outside of their responsibilities, even where aiding their employer, then liability may be avoided, Beard v London Omnibus [1900].

  • Explicitly Prohibited Acts:

The courts will usually deny vicarious liability in this scenario. However, if the prohibited act is an otherwise authorised act carried out in an unauthorised way then this may still result in liability. This is the difference in scope of action and manner of action, Iqbal v London Transport Executive [1972]; London County Council v Cattermoles (Garages) [1953].

  • Unlawful Activity:

These often fall outside the scope of vicarious liability unless a sufficiently close connection exists between the criminal conduct and the employee’s usual conduct, Lister et al. v Hesley Hall [2002].

  • Distinguishing Between Employment and Personal Conduct:

The law makes a distinction between an employee’s conduct in the course of employment, and that which can be considered ‘a frolic of his or her own’, Joel v Morison [1834].

Employers’ Indemnity

The employee and employer are joint tortfeasors and so employers can recover from their employees.

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