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:
- The relationship between the defendant and the primary tortfeasor is capable of attracting vicarious liability; and
- There is a sufficiently close connection between that relationship and the tort: Catholic Child Welfare Society v Various Claimants  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  UKSC 56. Factors which indicate that there is such a relationship include:
The primary tortfeasor owed the defendant a moral duty of obedience: Armes v Nottinghamshire County Council  UKSC 60.
The defendant had heavy control over the tortfeasor: Interlink Express Parcels v Night Trunkers  EWCA Civ 360.
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  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  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  UKSC 10.
Finding a Close Connection
There are two elements to finding a ‘close connection’:
- That the relationship created or increased the risk of that kind of tort occurring: Cox v Ministry of Justice  UKSC 10;
- That the tort was ‘within the field of activities’ which the defendant entrusted to the primary tortfeasor: Mohamud v Morrisons Ltd  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:
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  UKSC 11.
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  1 WLR 1441.
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  EWCA Civ 2214.
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  UKSC 11.
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  CSOH 69.
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. That the tort took place on work premises or during work hours does not establish a close connection on its own, however: WM Morrison Supermarkets plc v Various Claimants  UKSC 12.