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History of the Tort of Vicarious Liability

Info: 1770 words (7 pages) Law Essay
Published: 11th Jun 2021

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Jurisdiction(s): UK Law

The following paper shall investigate the origins and development of the tort of vicarious liability. In doing so it shall provide an analysis for the usage of the legal terminology in an effort to produce distinctions. The law of vicarious liability in its present form shall also be considered utilising case law to discover the evolution of the principles. The standard of social justice as recognised by the law shall be assessed in order to establish the soundness of public policy in relation to vicarious liability.

The law of vicarious liability is indeed one which is unique within the justice system. It is the only tort that looks beyond the primary tortfeasor’s liability and applies liability to an otherwise innocent party, the defendant tortfeasor in secondary liability. The purpose for what would seem to be a wrong in the law is undoubtedly attributed to the concepts of fairness and the justness of the legal system as to maintain a socially accepted public policy.

Holt CJ is an established pioneer in the area of vicarious liability, declared in Herne v Nicholl (1700) that ‘For seeing somebody must be a loser, it is more reason, that he that employs and puts a trust and confidence…should be a loser rather than a stranger’. This is indicative of the fact that for justice to prevail, somebody must be held to account and in this case it should be the employer by way of vicarious liability.

Lord Toulson, in Mohamud v W M Morrison (2016), decide that for the employer to be held liable two tests must be satisfied. The Supreme Court Judge asserts that the field of activities entrusted by the employer must be addressed broadly and that the sufficient connection between the employment position and the wrongful conduct is established so as to establish a just result in the interest of society.

The field of activities applied broadly may have varying negative consequences in various vicarious liability cases. An instance would be the case of Deaton Pty LTD v Flew (1949) where it was found that the employee’s line of work was not cause for her action, even though the confrontation took place as she was carrying out her duties. The field of activities vocabulary had been examined before by Lord Diplock in Ikiw v Samuels (1963) where the language used to describe employment was not limited to specific duties. The broad application in Wren v Henry (1948), for example, could be afforded new critique. Primarily due to the fact that it involved a confrontation during the execution of duties and continued on once duties were concluded with threat of seeking redress from the employer levied by the claimant.

It is for the reasons of these scenarios that the Salmond Test provided a measure of security for those seeking justice when maltreatment occurs during the ordinary course of interaction with various enterprises. Salmond introduces the doctrine which holds an employer liable as such (a) a wrongful act authorised by the master and (b) a wrongful act unauthorised by the master. This is with a direction to focus towards the connection between the employer and the employee and the claimant. In the principle of liability for a connection with acts authorised though executed through improper modes of doing them. This rigidly held all activities of employment with the employee and align them with the employer’s purpose for employment, resolutely. This was observed in Lloyd v Grace & Smith Co (1912) which identified that so long as the employee’s tortious activities arise due to their authorised acts, the unauthorised acts closely connected to the employers business vitiates for a finding of vicarious liability.

The fact that the field of activities can be subjected to authorisations and non-authorisations has given rise to case laws which challenge the justiciability of these principles of vicarious liability on both sides of the scale. In Limpus v London General Omnibus () an express prohibition of an act established its non-authorisation. Yet when the primary tortfeasor committed the unauthorised act, the employer became the defendant and became vicariously liable. Contrasted with Keppel v Ahmad () when a passenger was assaulted by the conductor, the employers were found not to be vicariously liable due to the incident not being an authorised act, though it happen during the course of the employment.

Therefore, Lord Toulson’s second test of sufficient connection may very well offer a solution to the varying degrees of employer/employee relationships which give rise to cases of vicarious liability. The present test for close connection has been in operation since Lister v Hall () whereby the woeful crimes committed by an employee were found to be connected to the employment engaged. The judgement of the House of Lords seems to have intended to re-establish the principles of Holt CJ in Tuberville v Stamp () when stating that ‘If my servant doth anything prejudicial to another, it shall bind me, when it is presumed that he acts by my authority, being about my business’.  Although this may appear to be a harsh way of mitigating justice in the pursuit of public policy, it would be a gross absurdity to allow such a crime to have no civil remedy as to dismiss it as a mere ‘folic of one’s own accord’ as underlined in Joel v Morrison (1834).

The delicate application of socially remedial action at court, must provide security for business owners and other institutions alike. It is not safe for a law observing society to expect an innocent party to be held responsible for the actions of another, primarily due to the proximity of their relationship to one another. It is therefore just to isolate the deeds of one and examine their relationship with the employer. It is necessary to distinctly identify the case whereby an individual is actually acting in the interests of their own enterprise as outlined in Storey v Ashton (1869) and acknowledge actions taken under instructions for the benefit of the employer as observed in Mattis v Pollock (2003).

The appeal in Mahmud v Morrison (2016) seemed to seek to address the issue of a close connection test required to establish vicarious liability. Vicarious liability does not place direct blame on an employer, rather, it is a consequential liability. This allows for an employer to only be held liable for the tort if it were committed in a manner so closely connected with the business they employ. The House of Lords decided in Dubai Aluminium Co Ltd v Salaam (2002) stating that ‘A close connection and direct connection test…allows for the unlawful conduct to be regarded as having been done during the ordinary conduct of employment’. This was observed in Gravis v Carroll and Another (2003) whereby a sports club was held vicariously liable due to the fact that a rugby player did harm an individual, finding that there was a connection between the punch and the work he was employed to do. Furthermore, in Mattis v Pollock (2003) the court of appeal stated that ‘vicarious liability for an act of violence is more likely to be found’. This is a case that closely reflects the calls for a representative capacity test. It, therefore, stands to good reasoning that the test for vicarious liability is sensitively assessed.

 The common law’s wealth of precedent in the area of tort is supplemented with a substantial amount of statute law.  Common Law along with Legislation do not only offer protection to the claimants but also provides security for the defendants. In Majorwski v NHS () the claimant was able to rely on the Protection form Harassment Act () to bring a case of vicarious liability against an employer. In the interests of a socially acceptable public policy, the Civil Liability (Contribution) Act allows for an employer to recover their funds from an employee following a suit of vicarious liability. A legislation that has a prima facie imposition of vicarious liability is the Partnership Act which governs the activities of law firms in the course of their business. Furthermore, the case of Lister v Ice & Cold Storage Company, allows for an employer to sue for indemnity against an employee.

In Conclusion, the interaction between communities and enterprises which provide amenities is one that requires a balancing of responsibilities. The freedom to provide business activity and the reasonable foresight of the risks associated with the engagements, must be given proper scope for justiciable scrutiny. In Rose v Plenty () the business of providing the community with milk did not allow for society to leave the claimant uncompensated. Yet in Joel v Morrison to hold an employer liable for independently committed acts was prohibited. The case of Mahmud v W M Morrison (2016) did risk an injustice in the form of ‘Representative Capacity’, the wisdom of the Supreme Court in rejecting this test has confirmed the scope of the ‘Field of Activities’ and has reaffirmed the validity of the ‘Sufficient (Close) Connection’ test. This is positively in the favour of finding a balance capable of the commitment to a fair and just legal system, with regards to public policy and social justice in tort law.



  • Emily Finch and Stefan Fafinski, Tort Law (Sixth Edition, Pearson 2017)
  • Jenny Steele, Tort Law: Texts, Cases and Materials (Fourth Edition, Oxford 2017)
  • Catherine Elliot & Francis Quin, Tort Law (Tenth Edition, Pearson 2015)
  • Tony Weir, An Introduction To Tort Law (Second Edition, Oxford University Press 2015)
  • Finch E and Fafinski S, Tort Law (Sixth Edition, Pearson 2017)
  • Steele J, Tort Law: Texts, Cases and Materials (Fourth Edition, Oxford 2017)
  • Elliot C & Quin F, Tort Law (Tenth Edition, Pearson 2015)
  • Weir T, An Introduction To Tort Law (Second Edition, Oxford University Press 2015)


  • The Partnership Act
  • The Civil Liability (Contribution) Act
  • The Protection from Harassment Act

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