Justification for VL
- Vicarious liability holds an employer responsible for the wrongful actions of their employee, even if the employer isn’t at faul
- Provides a practical remedy
- Encourages careful practice
- Achieves social justice
- ‘Deep pockets’ Theory
Justification for VL - practical remedy
The employer, not the employee, has the financial means (insurance) to pay for damages.
Justification for VL - Encourages careful practice
Employers are motivated to properly select, train, and supervise staff to prevent harm. Cases like Century Insurance v NI Road Transport (1942)
Justifications for VL - social justice
Achieves social justice: It ensures victims can receive compensation, as seen in cases addressing institutional abuse and racism, such as Lister v Hesley Hall (2001) and Jones v Tower Boot Co (1997).
Justification of VL - ‘deep pockets theory’
Deep Pockets” theory: The employer benefits from the employee’s work, so they should bear the risk and cost of their wrongful acts. The Barry Congregation v BXB (2023) judgment, however, clarifies that this shouldn’t extend vicarious liability beyond its principled boundaries
Arguements against VL
- unfairness
- modern work practices
- Broadening scope
against Vl - Unfair
It imposes liability on an “innocent” party (the employer) for something they didn’t personally do. This goes against the legal principle of fault.
Against VL - Modern work practices
It’s difficult to supervise and control employees in a modern workplace with flexible working arrangements. Employers can be held liable even if they’ve explicitly prohibited the unsafe act, as in Limpus v London General Omnibus (1862).
Against VL - Broadening scope
the law’s scope has widened, sometimes leading to unfairness. For example, the Viasystems case allowed multiple employers to be held liable for a single employee’s tort, which can be an overly broad interpretation.
Course of Employment” & Inconsistenc
Core Test: An employer is liable only if the employee’s tort occurred “in the course of their employment.”
Inconsistencies: There have been inconsistent decisions on what counts as “in the course of employment”:
Rose v Plenty (1976): Employer was liable when the employee ignored instructions, as the act was for the employer’s benefit.
Twine v Beans Express (1946): Employer was not liable because the employee’s act of giving a lift was not for the employer’s benefit.
Hilton v Thomas Burton (1961) vs. Smith v Stages (1989): The purpose of the journey determined liability for road accidents, causing inconsistent outcomes.
Expanding & Limiting Vicarious Liability
Expansion: Courts have adopted a “close connection” test to stretch the traditional employer-employee relationship, as seen in Catholic Child Welfare Society (2012) and Cox v Moj (2016). This can lead to “quasi-employers” being held responsible.
Criminal Acts: The law has even broadened to cover some criminal acts, like in Mattis v Pollock (2001) and Lister v Hesley Hall (2001).
Recent Limitations: More recent cases have sought to put limits on this expansion:
Barclays Bank (2020): Confirmed that vicarious liability does not extend to independent contractors.
Morrisons (2020) and Chell (2023): Have aimed to curb the expansion, stating that an employer isn’t automatically liable just because the employee committed a tort during their employment
VL - fairness
The rules are both fair and unfair. Fair because victims get compensation from the party with “deep pockets” and insurance. Unfair because it holds a blameless employer strictly liable, which goes against the fault principle. This is evident in cases like Limpus v London General Omnibus (1862).
VL - Justice
The law achieves justice for the victim by providing a “practical remedy.” It also promotes social justice by holding large organizations accountable for institutional failings, as seen in Lister v Hesley Hall (2001) and Jones v Tower Boot Co (1997)
VL - Certainty
Clarity 🔮: The law lacks clarity. Inconsistent decisions on what constitutes “in the course of employment” make outcomes hard to predict. Cases like Twine v Beans Express (1946) vs. Rose v Plenty (1976) highlight this inconsistency.
Expanding Scope 📈: The “close connection” test has expanded the law, making it less certain. While Morrisons (2020) and Chell (2023) have tried to limit this, the law remains in a state of flux.
VL - Policy
To Provide Compensation 💰: The law is very effective here, ensuring victims can claim from the employer’s insurance.
To Distribute Loss 🤲: Effective. The cost is spread through insurance premiums, preventing a single person from bearing the loss.
To Apportion Blame 👤: Not very effective. It holds an innocent employer liable, failing to correctly apportion blame.
To Act as a Deterrent 🚫: Effective. It encourages employers to improve training and supervision, as shown in Century Insurance v NI Road Transport (1942).
To Balance Interests ⚖️: The law aims to balance the victim’s need for compensation with the employer’s interests, but some argue the balance has shifted too far in the claimant’s favour.
