Vicarious Liability-FS

Question 1

What is vicarious liability and how does it function in tort law?

Answer 1

It is a form of secondary liability that holds one party (typically an employer) responsible for the torts committed by another (typically an employee) due to their relationship.

Illustrative example: A cleaning company may be held liable if its cleaner negligently damages a client’s property during working hours.

Question 2

Is vicarious liability a tort in itself?

Answer 2

No; it is not a tort but a mechanism for allocating liability between parties based on their legal relationship.

Question 3

What three conditions must be satisfied for an employer to be held vicariously liable for an employee’s tort?

Answer 3

1) A tort must have been committed

(2) the tortfeasor must be an employee

(3) the tort must have been committed in the course of employment.

Question 4

Why is vicarious liability considered a form of strict liability?

Answer 4

Because the employer can be liable even if they themselves were not at fault and did not commit the tort.

Question 5

What are the key policy reasons for imposing vicarious liability on employers?

Answer 5

Employers usually have greater financial resources (“deep pockets”), exert control over employees, and are in a position to improve workplace practices through training and supervision.

Question 6

What does it mean that liability under vicarious liability is joint?

Answer 6

Both the employer and the employee are liable for the same tort; the claimant can sue either or both.

Question 7

Why would a claimant typically choose to sue the employer rather than the employee in a vicarious liability case?

Answer 7

Because the employer is more likely to afford compensation, and often holds liability insurance.

Question 8

Can an employer be held vicariously liable if the tort occurred outside the scope of employment?

Answer 8

No; the tort must be committed in the course of employment. Acts done outside the employee’s duties, or on a “frolic of their own,” generally fall outside vicarious liability.

Question 9

What are the three core elements required to establish vicarious liability against an employer?

Answer 9

(1) A tort must have been committed.

(2) the tortfeasor must be an employee or in a relationship akin to employment

(3) the tort must have occurred in the course of employment.

Question 10

Why is the existence of a tort necessary for a finding of vicarious liability?

Answer 10

Because vicarious liability only arises where a wrongful act (usually a tort) has been committed; without a tort, there is no liability to impute.

Example: If a shop assistant pushes a customer and causes injury, the tort (battery) must be established before considering employer liability.

Question 11

Can an employer be vicariously liable for a tort committed by an independent contractor?

Answer 11

No; vicarious liability only applies to torts committed by employees, not independent contractors.

Question 12

How can you distinguish an employee from an independent contractor in legal terms?

Answer 12

An employee typically works under a contract of service, is paid a wage, and works under the employer’s control; an independent contractor works under a contract for services and operates their own business.

Question 13

Why is a freelance worker who delivers food for several companies generally considered an independent contractor?

Answer 13

Because they control their own working arrangements and serve multiple clients, indicating they are in business on their own account.

Example: A delivery driver with contracts from three food platforms crashes while delivering. The platforms likely avoid vicarious liability.

Question 14

How did the Ready Mixed Concrete case help define independent contractor status?

Answer 14

It emphasized control, ownership of assets, financial risk, and independence. The more these factors favor autonomy, the more likely the worker is an independent contractor.

Question 15

What does it mean when a person is said to be “in business on their own account”?

Answer 15

They operate independently, bear their own financial risk, and retain control over their working conditions and assets.

Example: A self-employed plumber advertises online, chooses their jobs, and sets their own fees—indicating independence.

Question 16

Why is control an important factor in determining employment status for vicarious liability?

Answer 16

Greater employer control over the worker’s duties, schedule, tools, and conduct indicates an employment relationship.

Question 17

What outcome results if a court finds that no employment relationship exists between the tortfeasor and the alleged employer?

Answer 17

Vicarious liability fails, and the claimant must seek compensation directly from the individual who committed the tort.

Question 18

What legal terminology was historically used to describe the employer-employee relationship, and why is it relevant?

Answer 18

Older cases used “master and servant,” reflecting the control-based nature of the relationship—still influential in modern tests for employment.

Question 19

How has the scope of vicarious liability expanded beyond traditional employment relationships since 2012?

Answer 19

It now includes certain relationships akin to employment, where individuals are not formally employees but still carry out work for the benefit of an organization under conditions similar to employment.

Question 20

What key case established the test for identifying relationships akin to employment in vicarious liability claims?

Answer 20

Catholic Child Welfare Society v Various Claimants, where the Supreme Court held that lay brothers teaching in a residential school were in a relationship akin to employment with the religious institute.

Question 21

What five factors did the Supreme Court outline to determine whether a relationship is akin to employment?

Answer 21

1) The organization has the means to compensate,
(2) The tort was committed during an activity on its behalf,
(3) The activity is part of its business,
(4) It created the risk of the tort,
(5) It exercised control over the tortfeasor.

Question 22

How does the first criterion — the organization having the means to compensate — support a finding of vicarious liability?

Answer 22

It reflects a policy aim: the organization is usually better placed financially than the tortfeasor to meet a compensation claim.

Question 23

What does it mean for an activity to be “undertaken on the employer’s behalf” in the context of vicarious liability?

Answer 23

The tortfeasor is performing work that advances the goals or operational needs of the organization, even if not formally employed.

Example: A volunteer in a charity shop injuring a customer while restocking shelves may be viewed as acting on the charity’s behalf.

Question 24

Why is it relevant that an activity is “part of the employer’s business activity” in vicarious liability?

Answer 24

Because it links the wrongful act to the core functions or operations of the organization, justifying liability.

Example: A prisoner preparing meals for other inmates contributes to the prison’s essential function — food provision.

Question 25

In Cox v Ministry of Justice, why was the prison service held vicariously liable for a prisoner’s negligence in the kitchen?

Answer 25

Because the prisoner’s work was an integral part of the prison’s function, done on its behalf, creating a risk for which the prison was responsible.

Question 26

What is the significance of control in determining whether a relationship is akin to employment?

Answer 26

Even limited supervision or direction by the organization can support a finding that the individual is under its control, satisfying one of the five criteria. Example: A church directing a volunteer choir leader’s weekly tasks may demonstrate sufficient control.

Question 27

What is the third requirement for establishing vicarious liability in tort law?

Answer 27

The tort must have been committed in the course of the employee’s employment.

Question 28

How is an act typically considered to be done “in the course of employment”?

Answer 28

f the act was expressly or impliedly authorized by the employer, or if it was an unauthorized way of performing an authorized task.

Question 29

Why would a cleaning company be vicariously liable if one of their cleaners fails to warn customers of a wet floor during her shift?

Answer 29

Because the tort was committed while the employee was carrying out her authorized duties — cleaning — albeit negligently.

Question 30

In Century Insurance, why was the employer held liable for an explosion caused by a lorry driver who was smoking while refueling?

Answer 30

Because refueling was an authorized act; the dangerous method (smoking) was merely an unauthorized mode of performing it.

Question 31

In what situation would a prohibited act still fall within the course of employment?

Answer 31

If the act furthers the employer’s business and is merely an unauthorized way of doing an authorized job. Example: A delivery driver who takes a shortcut route in violation of company policy but still makes the delivery may still trigger employer liability.

Question 32

Why was the employer held vicariously liable in Rose v Plenty, where a milkman employed a boy to help with deliveries against company orders?

Answer 32

Because the task (delivering milk) was authorized, and involving the boy was an unauthorized method of performing it — done in furtherance of the employer’s business.

Question 33

What happens when an employee commits a wholly unauthorized act that is not part of their job?

Answer 33

It falls outside the course of employment, and the employer is not vicariously liable.

Question 34

Why was a bus company not vicariously liable when a conductor, not trained to drive, took control of the bus and injured someone?

Answer 34

Because driving the bus was a completely unauthorized act, not part of the conductor’s duties.

Question 35

How do courts distinguish between “unauthorized acts” and “unauthorized modes of performing authorized acts”?

Answer 35

The former are outside the scope of employment (no liability); the latter are within the scope (possible liability if done for employer’s benefit).

Question 36

Why is it not enough for a tort to be committed by an employee to establish vicarious liability?

Answer 36

Because context matters — the tort must be committed while carrying out employment duties, not during a personal detour or completely unrelated activity Example: An employee who assaults someone on a personal errand unrelated to their job would not trigger employer liability.

Question 37

What does it mean when an employee is said to be “on a frolic of their own”?

Answer 37

It means the employee has departed significantly from their employment duties for purely personal reasons, placing the tort outside the course of employment. Example: A postal worker taking a long personal detour to visit family and causing an accident en route.

Question 38

When is an employer not vicariously liable for an employee’s tort while driving?

Answer 38

When the employee deviates substantially from their authorized route for non-work-related purposes, such as personal visits during working hours.

Question 39

In Story v Ashton, why was the employer not held liable for a driver’s negligent act?

Answer 39

Because the driver took an unauthorized detour to visit a relative, which was unrelated to his work duties—a personal errand outside employment scope.

Question 40

When might a deviation from an authorized route still fall within the course of employment?

Answer 40

If the detour is minor, caused by external circumstances, or occurs during working hours while the employee is still carrying out work duties. Example: A bin collector re-routing due to a closed road while still collecting bins for the council.

Question 41

Why was the employer held liable in Harvey v R.G. O’Dell for an accident occurring on the way to lunch?

Answer 41

Because getting lunch during working hours was considered incidental to the employee’s work, making the activity part of the course of employment.

Question 42

List three factors suggesting an employee is acting within the course of employment despite a deviation.

Answer 42

(1) The detour is minor or necessary, (2) The employee is still performing work duties, (3) The incident occurred during working hours.

Question 43

List three indicators that suggest an employee is not acting in the course of employment.

Answer 43

(1) The deviation is major, (2) The purpose is purely personal, (3) The incident occurred outside working hours.

Question 44

Why is an employer likely to be vicariously liable when an accident occurs during a minor diversion caused by a road closure?

Answer 44

Because the deviation is necessitated by circumstances, the employee is still performing work duties, and the event occurs within working hours. Example: A local authority’s refuse worker changes route due to a closed street but continues collecting refuse when an accident occurs.

Question 45

What are the three core requirements for vicarious liability, and how has the third requirement evolved in case law?

Answer 45

1. A tort must have been committed – Typically negligence, but can include other torts like assault or defamation. Example: A factory worker negligently injures a colleague by failing to turn off machinery. 2. The tortfeasor must be an employee or in a relationship akin to employment – The employer must have control or a sufficiently close relationship with the wrongdoer. Example: A prisoner working in a kitchen under prison supervision (as in Cox v MoJ) can establish such a relationship. 3. The tort must have been committed in the course of employment: * Traditional approach (pre-2002): * The act must be expressly or impliedly authorized, * Or it must be an unauthorized way of doing an authorized act. Example: A delivery driver violating company policy on routes but still delivering for work. * Modern approach (post-Lister and Mohamed): * (1) What functions were entrusted to the employee? * (2) Was the tort sufficiently connected to those functions to make it fair, just, and reasonable to hold the employer liable? Example: An employee responsible for customer service who assaults a customer during a service-related dispute (Mohamed v Morrison).

Question 46

What test did the courts adopt post-2002 to determine whether a tort was committed in the course of employment?

Answer 46

The close connection test, which asks whether there is a strong link between the tort and the employee’s job duties.

Question 47

Which case introduced the close connection test in vicarious liability?

Answer 47

Lister v Hesley Hall Ltd, where a warden’s abusive conduct was found closely connected to his caregiving duties.

Question 48

What two-part question was established by the Supreme Court in Mohamed v Morrison Supermarkets to apply the close connection test?

Answer 48

(1) What functions were entrusted to the employee? (2) Was there a sufficient connection between those functions and the wrongful conduct?

Question 49

Why was the employer held vicariously liable in Mohamed v Morrison when a petrol station employee assaulted a customer?

Answer 49

Because the assault was a seamless extension of his job duties—serving and managing customer interactions.

Question 50

How does the modern test differ from the traditional pre-2002 test for course of employment?

Answer 50

The traditional test focused on authorization of acts; the modern test focuses on the connection between the tort and the employee’s role.

Question 51

Can an employer be vicariously liable even if the tort involves a criminal act like assault?

Answer 51

Yes—if the wrongful act is closely connected to the employee’s duties, as in Lister or Mohamed. Example: An employee managing security who uses excessive force on a customer during a dispute.

Question 52

What was the employee’s role in Lister v Hesley Hall, and how did it relate to the tort?

Answer 52

The warden was entrusted with the care and supervision of vulnerable children, and the abuse was committed in the context of that role.

Question 53

Why was Pentel Pens likely held vicariously liable when a factory worker failed to act during a machine malfunction?

Answer 53

Because his job function was to monitor the conveyor belt, and his omission had a close connection to that duty.

Question 54

What kind of conduct might fail the close connection test and fall outside vicarious liability?

Answer 54

Actions that are entirely personal, impulsive, or unrelated to job duties—such as a spontaneous act of violence with no link to work responsibilities. Example: An employee assaults someone in a car park after a shift over a personal disagreement.

Question 55

Who are the two typical tortfeasors in vicarious liability cases?

Answer 55

(1) The employee — the primary tortfeasor, and (2) The employer — the secondary (vicariously liable) party.

Question 56

Under what statute can an employer seek a contribution or indemnity from an employee after paying out damages in a vicarious liability case?

Answer 56

Section 1(1) of the Civil Liability (Contribution) Act 1978.

Question 57

When is it most likely that an employer will exercise their right to seek contribution from an employee?

Answer 57

In rare cases involving willful misconduct or collusion, rather than ordinary negligence. Example: An employee maliciously tampering with products, causing harm to customers.

Question 58

Is an employer automatically entitled to recover full compensation from an employee when held vicariously liable?

Answer 58

No. The court has discretion to allow some or all of the damages to be recovered, depending on the facts.

Question 59

What is the modern legal test used to determine whether a tort occurred “in the course of employment”?

Answer 59

What is the modern legal test used to determine whether a tort occurred “in the course of employment”?

Question 60

What are the two parts of the close connection test in vicarious liability?

Answer 60

(1) What functions were entrusted to the employee? (2) Was there a sufficient connection between the function and the wrongful act?

Question 61

Why is the employer often sued instead of the employee in vicarious liability cases?

Answer 61

Because the employer is typically in a better financial position to compensate the claimant (i.e., “deep pockets”).

Question 62

In what scenario is an employer not likely to seek recovery from an employee after being found vicariously liable?

Answer 62

When the employee’s conduct was a mistake or ordinary negligence committed in the course of employment. Example: A cashier misplaces stock, causing injury — unlikely to result in a claim against the employee.