Tort: Vicarious Liability

Vicarious Liability

What is Vicarious Liability?

Vicarious liability is one way in which the law imposes primary liability on people for the torts of third parties. It does not matter whether or not the employer is at fault for the tort or could have prevented it. The other way a person can be liable for another person’s tort is through a non-delegable duty.

Establishing Vicarious Liability

To establish vicarious liability, the claimant must show that:

  1. The relationship between the defendant and the primary tortfeasor is capable of attracting vicarious liability; and
  2. There is a sufficiently close connection between that relationship and the tort: Catholic Child Welfare Society v Various Claimants [2012] UKSC 56.

The ‘primary tortfeasor’ is the person who directly commits the tort.

Finding a ‘Capable Relationship’

The categories of relationship in which vicarious liability might arise are not closed. They are primarily relationships of employment or those ‘akin to employment’: Catholic Child Welfare Society v Various Claimants [2012] UKSC 56. Factors which indicate that there is such a relationship include:

Faith, moral duty, church

The primary tortfeasor owed the defendant a moral duty of obedience: Armes v Nottinghamshire County Council [2017] UKSC 60.

Control, restraint, prison

The defendant had heavy control over the tortfeasor: Interlink Express Parcels v Night Trunkers [2001] EWCA Civ 360.

Security employee

The primary tortfeasor’s activities were carried out as ‘an integral part of the business activities’ of the defendant and ‘for its benefit’: Cox v MoJ [2016] UKSC 10. There is no need for this ‘benefit’ to be economic.

It is possible for a primary tortfeasor to have a relevant relationship with two different defendants: Catholic Child Welfare Society v Various Claimants [2012] UKSC 56.

The ‘Recognisably Independent Business’ Exception

A relationship capable of attracting vicarious liability does not exist if the conduct of the tortfeasor is ‘entirely attributable to the conduct of a recognisably independent business of his own or of a third party’: Cox v Ministry of Justice [2016] UKSC 10.

Finding a Close Connection

There are two elements to finding a ‘close connection’:

  1. That the relationship created or increased the risk of that kind of tort occurring: Cox v Ministry of Justice [2016] UKSC 10;
  2. That the tort was ‘within the field of activities’ which the defendant entrusted to the primary tortfeasor: Mohamud v Morrisons Ltd [2016] UKSC 11.
‘Within the Field of Activities’

The appropriate field of activities is broad. It is not limited to assigned tasks and unauthorised modes of doing assigned tasks. Relevant factors include: 

Job, employment

If the general, abstract task being performed was part of the individual’s job description or was designed to benefit the employer, this indicates that it was within the field of activities: Mohamud v Morrisons [2016] UKSC 11.

Duty, teaching, children

If the primary tortfeasor was purporting to carry out a duty imposed on or granted to him by virtue of the relationship, this indicates that it was within the field of activities: Maga v Birmingham Roman Catholic Archdiocese Trustees [2010] 1 WLR 1441.

Abuse of power, light bulb

If the tort can be characterised as an abuse of power or authority granted to the primary tortfeasor by the relationship, this indicates that it was within the field of activities: Bellman v Northampton Recruitment [2018] EWCA Civ 2214.

Unbroken chain

If there was an ‘unbroken sequence of events’ between the duties or work assigned to the primary tortfeasor and the tort, this indicates that it was within the field of activities: Mohamud v Morrisons [2016] UKSC 11.

Personal fight

The tort is less likely to be within the field of activities if the primary tortfeasor was purely motivated by personal concerns: Vaickuviene and others v J Sainsbury plc [2012] CSOH 69.

Time, clock

The tort is less likely to be within the field of activities if it took place outside of work hours and away from work premises: Wm Morrison Supermarkets v Various Claimants [2018] EWCA Civ 2339.


0%

Liability for Third-Parties Quiz

Test yourself on the principles which determine when a defendant will be liable for actions of a third-party: non-delegable duties and vicarious liability.

1 / 6

What five matters must the claimant prove to show that the defendant owes them a non-delegable duty of care?

2 / 6

Which two elements must be demonstrated to show that there is a 'close connection' between the tort and the defendant's relationship with the primary tortfeasor for the purposes of vicarious liability?

3 / 6

What factors indicate that there is a relationship 'akin to employment' between the defendant and primary tortfeasor for the purposes of vicarious liability?

4 / 6

For the purposes of vicarious liability, what four factors indicate that the tort is within the field of activities entrusted or assigned to the primary tortfeasor by the defendant?

5 / 6

What two elements must the claimant show to demonstrate that the defendant is vicariously liable for the torts of another?

6 / 6

For the purposes of vicarious liability, what two factors indicate that the tort is not within the field of activities entrusted or assigned to the primary tortfeasor by the defendant?

Your score is