Vicarious liability

Question 1

What is vicarious liability?

Answer 1

• rule of responsibility which renders the defendant liable for the torts committed by another
• employer is liable for employee

Question 2

What are the traditional tests to determine if a tortfeasor is an employee?

Answer 2

• Control test
• Integration test
• Economic reality

Question 3

Control test - traditional tests

Answer 3

Determines if the employer had the right to control what the employee did and the way it was done - includes loaned out employees and equipment

Question 4

Integration & multiple factors test - traditional testse

Answer 4

Considers if the tortfeasors work was fully for the business - if they were only an accessory to the business they are an independent contractor

Considers a variety of factors such as equipment, payment, role

Question 5

Modern tests - akin to employment

Answer 5

Most recent test used for non-traditional employment relationships

Employers are not responsible for independent contractors.

This acts as a defense, where the individual was independent from the business

Question 6

case for modern tests - akin to employment

Answer 6

Barclays Bank Plc v Various Claimants

Dr Bates was not an employee whilst performing medical examinations on Barclays employees, he was an independent contractor and therefore was not in a relationship akin to employment

Question 7

Catholic Brothers case, what are the factors for deciding whether to impose liability for vicarious liability in relationships akin to employment?

Answer 7

Factors determining it is fair, just and reasonable to hold the employers liable for VL

• D is likely to have means of compensation
• Tort was committed due to activity undertaken on behalf of D
• Tortfeasor’s activity is part of D’s business activity
• D has created the risk of tort by employing the tortfeasor
• D maintains a degree of control over the tortfeasor

Question 8

Non intentional torts - if a tort is done within course of employment is the employer liable?

Answer 8

• Authorised acts, part of their role which they have been expressly or implicitly authorised to do
• Authorised acts in a prohibited/negligent way - if still linked to actual job

Rose v plenty - liable

Question 9

If a tort is non-intentional torts outside the course of employment can an employer be liable?

Answer 9

• Outside scope of employment, act is done outside tortfeasors contractual duties
• Frolic of their own - outside scope/time of work

Shelbourne v cancer research uk - not liable

Question 10

Can employers be vicariously liable for an employee’s intentional or criminal acts?

Answer 10

Yes – if the act is ‘closely connected’ to the employee’s role.
• Being a crime does not automatically remove employer liability.
• Employer can be liable if the act is sufficiently closely connected to the job.

⸻

📌 Key Cases:
1. ✅ Mohamud v Morrisons (2016):
• Held: Employer liable
• Why: Employee’s assault on customer was closely connected to job duties (customer interaction).
2. ❌ WM Morrisons v Various Claimants (2020):
• Held: Employer not liable
• Why: Employee’s data breach was a personal vendetta, not closely connected to duties or done to benefit employer.

Question 11

What are the defences available for vicarious liability?

Answer 11

Volenti non fit injura - where c knowingly accepts the risk for negligence, provides a full defence for the d

Contributory negligence - provides a partial defence, where c contributed to the negligence they faced
English heritage v Taylor