Tort Vicarious liability

‘It is entirely appropriate that all businesses be responsible for the torts of their employees'.

Vicarious liability is where one person is held liable for the torts of another, even though that person did not commit the act itself. It is therefore a form of strict liability (in that the defendant is not at fault). The most common form of vicarious liability is when employers are held liable for the torts of their employees that are committed during the course of employment. The issue of vicarious liability can be seen to be unjust in that someone who is not at fault can be held liable.

In order to establish liability on the part of the employer, several requirements must be satisfied. Firstly, the wrongdoer must be an employee (as opposed to an independent contractor), the employee must have committed a tort and the tort must have been committed in the course of employment.

Over the years, the courts have been highly inconsistent in relation to the decisions they have made in this area of tort law, making it difficult to establish whether the use of vicarious liability is entirely appropriate.

One problem in particular the courts have had is in determining what constitutes the classification of an employee. This is partly due to there being so many different employment relationships. One of the early tests to determine this issue was the Control Test which asked whether the ‘Master' had the right to control what was done and the way it was done. However, this test was seen to be inappropriate, except perhaps in cases of borrowed workers, as in Merseyside Docks & Harbour Board v Coggins and Griffiths. The courts then recognised that a single test was not enough to determine employment status so the courts developed a multiple test in Ready Mixed Concrete v Minister of Pensions, whereby all factors in the relationship should be considered. All tests are open to interpretation and there is no conclusive or definitive test; in the case of Hall v Lorimer the Court of Appeal said no single test is absolute.

This difficulty in determining who shall be classed as an employee backs up the argument that imposing vicarious liability is not entirely appropriate.

However, in certain situations the courts have clarified the position with regard to some workers; in Cassidy v Ministry of Health it was held that doctors are employees and in Netheremere Ltd v Taverna & Gardiner it was held that outworkers (people who work from home) could be classed as employees if they are doing the same work as those in the workplace.

Some workers have been identified as not falling within the definition of employee e.g. apprentices and trainees (Wilshire Police Authority v Wynn). This means that victims are not compensated, which seems unjust especially since the apprentice is carrying out activities associated with the employer.

An employer will only be liable for the torts of their employees if they are committed during the course of employment rather than, as the courts put it, ‘on a frolic of his own' (Storey v Ashton). This is another area of vicarious liability that the courts have found particularly difficult to agree on. The traditional test for determining this is the Salmond test which states that a tort will be committed in the course of employment if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master.

The second limb of this test brings about unfairness, as even when the employee's conduct has been expressly prohibited by the employer, if the act itself is authorised then the employer will still be liable (Limpus v London General Omnibus Co). On the other hand, it would seriously undermine the operation of vicarious liability if an employer was able to avoid liability simply by forbidding their employees from doing certain acts.

This test was also criticised on the basis that it had clearly been devised to cover only negligent acts of an employee and therefore did not consider intentional torts.

However, this restrictive test was largely improved after the decision of the House of Lords in the controversial case of Lister v Hesley Hall, where a warden sexually abused young boys at the home where he was employed to look after them. The House of Lords held in this case that an employer would be vicariously liable for an employee's tort if there was ‘a close connection with the employment'.

The crucial issue here is whether the connection between the work and the tort is sufficiently close or whether the job has merely provided the opportunity to commit the tort. In Lister, the warden's job was to take care of the boys and supervise them, so because the abuses occurred when he was in charge of them, it was held to be a close connection. Lord Hobhouse gives an example that if a groundsman employed by the school had done as the warden had, he would have been outside the course of employment because ‘he was employed to look after the grounds, not to have anything to do with the boys'.

In his journal article ‘Making a Connection', Charlies Pigott wrote that ‘Lister broke new ground because the Court of Appeal had decided a few years earlier, in Trotman v North Yorkshire County Council, that no vicarious liability could attach for sexual abuse because it could not be regarded in any sense as a mode of carrying out the employee's duties'. The decision in Lister therefore widened the scope of this area of law by making it easier to find an employer liable for the torts of their employees, effectively and perhaps appropriately lowering the number of victims going uncompensated.

This decision has been followed in several other cases, including Mattis v Pollock and the 2010 case of Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church, which involved a priest's sexual abuse of a young boy.

It is unclear whether the ‘close connection' test will replace the Salmond test or be restricted to cases where an employee has engaged in criminal conduct. According to Mullis and Oliphant ‘whatever test is chosen, it is likely to remain a very difficult question in many cases whether conduct is or is not within the scope of employment; much will depend in the end on whether in all the circumstances the court thinks the employer ought to be held liable.' This idea of making decisions on a case by case basis has thrown the law on vicarious liability into major uncertainty.

However, this new principle does provide a means of achieving justice in those cases in which the traditional approach proves problematic.

Problems also arise with regard to unauthorised lifts contrary to instructions as in Rose v Plenty. It does not seem appropriate that even when the employer prohibits the activity, he is still held liable if the act was beneficial to him. However, if the employer does not benefit from the act then he may not be liable, as in Twine v Bean's Express. This shows that there is a very fine line between what does and does not attract vicarious liability, causing confusion and uncertainty.

There are, however, some justifications for the imposition of this tort. As pointed out by Atiyah, the principle of vicarious liability needs to be justified, as holding someone liable for the acts of another is contrary to English law in that people should only be liable if they are at fault.

One justification is that the purpose of employment is to allow the employer to benefit from the employee's work and so it seems feasible that the employer should bear the consequences. If there were no vicarious liability, then there would be no incentive for employers to minimise risks and increase standards of safety in the working environment.

The courts also view the imposition of vicarious liability as just due to the employer having a degree of control over his employees and has the ultimate power of dismissal, so they should ensure that employees do not carry out their work in a careless way. However, this is now seen to be outdated as many employees perform skilled tasks that the employer may not understand (Cassidy v Ministry of Health).

Furthermore, in ICIvShatwell, Lord Pearce stated that vicarious liability is essentially a matter of public policy and social convenience, as an employer will generally be in a better financial position than his employees and so they are more able to meet the cost of claims. This so-called ‘Deep Pockets Theory' states that not only do employers have more money, they also hold insurance. In addition to this, employers can distribute any losses they bear to the consumer by increasing prices of products or services.

Recently, however, reasoning has now moved towards the idea that the employer has created the relevant risk of harm in the first place by employing the wrongdoer. But as Claire MvIvor states, ‘if the courts continue to rely alone on the basic notion of risk creation, then it will be difficult to impose any kind of limit on the operation of the doctrine of vicarious liability'.

In conclusion, the concept of vicarious liability is a very complex issue, as it is torn between trying to protect the right of the victim to gain sufficient compensation and trying to protect the employer from being overburdened by their employees.

Although it goes against the principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability seems appropriate as it does serve a useful purpose; it contributes to the maintenance of safety standards and it enables the victims of negligence by employees to be reasonably certain that someone will be in a position to pay them compensation.