VICARIOUS LIABILITY

The basic idea behind vicarious liability:

If A is vicariously liable for a tort committed by B, A will be held liable as though he had committed
that tort himself, and will incur the same liability to pay damages to the victim of the tort as B does.

Situations of vicarious liability:

(1) Where B commits a tort in the course of her employment by A.

(2) Where B commits a tort in the course of performing his functions as a police officer, when A is the
chief police officer in charge of B (Police Act 1996, s 333).

(3) Where B commits a tort while acting within the actual or ostensible scope of her authority as A’s
agent.

(4) Where B commits a tort in the ordinary course of the business of a firm in which B and A are
partners.

NOT situations of vicarious liability:

(5) Where B puts A in breach of a non-delegable duty of care that A owes someone else.

(6) Where A is an accessory to a tort committed by B (through A’s procuring, authorising, or ratifying
B’s tort, or through B’s tort being committed in pursuance of a common design pursued by A and B:
The Koursk [1924] P 140, Brooke v Bool [1928] 2 KB 578).

Two issues relating to (1):

(1A) When will someone be held to be someone else’s employee? This issue gives rise to two sub-
issues:

(1A)(i) Who is an employee?

(1A)(ii) If A is an employee, how do we tell who his employer is?

(2) If an employee has committed a tort, what sort of connection has to be proved between what he
was employed to do and the tort that was committed by the employee before we will find that that
tort was committed in the course of the employee’s employment?

1. Who is an employee?

An EMPLOYEE undertakes to do work for another under a contract OF SERVICE. (Contrast:

an INDEPENDENT CONTRACTOR undertakes to do work for another under a contract FOR
SERVICES.) But how do we differentiate between a contract of service and a contract for
services?

(1) The ‘control’ test

Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191, 196 per Slesser LJ
Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd [1924] 1 KB 762
Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1

(2) The ‘ordinary person’ test

Cassidy v Ministry of Health [1951] 2 KB 343, 352-353 per Somervell LJ
Argent v Minister of Social Security [1968] 1 WLR 1749

(3) The ‘integration’ test

 Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1951) 69 RPC 10, 22 per Denning
LJ
Bank voor Handel an Scheepvart NV v Slatford [1953] 1 QB 248, 295 per Denning LJ
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968]
2 QB 497, 524 per MacKenna J

(4) The ‘four indicia’ test

Short v J W Henderson Ltd (1946) 62 TLR 427, 429 per Lord Thankerton

(5) The ‘principal obligation’ test

WHPT Housing Association Ltd v Secretary of State for Social Services [1981] ICR 737

(6) The ‘independence’ test

Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 per Cooke J
Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374

2. Who is the employer of an employee?

Normally straightforward: an employee’s employer is whoever the employee is working for.
But in the case of ‘borrowed’ employees (where one employer borrows an employee from
another employer) it gets more complicated:
Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1
Viasystems (Tyneside) Ltd v Thermal Transfer [2006] QB 510
Hawley v Luminar Leisure Ltd [2006] IRLR 817
Biffa Waste Services Ltd v Maschinenfabrik [2009] QB 725

3. Course of employment

The old test (the ‘Salmond’ test): It had to be proved that the employee did something he was
employed to do by committing the tort in question
Poland v John Parr & Sons [1927] 1 KB 236
Keppel Bus Co v Sa’ad bin Ahmed [1974] 3 WLR 1082
Heasmans v Clarity Cleaning Co [1987] ICR 949
Trotman v North Yorkshire CC [1999] LGR 584 (note: now overruled)

The new test (the ‘close and direct’ connection test): It has to be proved that there was a
sufficiently ‘close and direct’ connection between what the employee was employed to do and
the tort that was committed by the employee
Bazley v Curry (1999) 174 DLR (4th) 45 (noted: Cane, 116 LQR 21 (2000))
Jacobi v Griffiths (1999) 174 DLR (4th) 71 (noted: Cane, above)
Lister v Hesley Hall Ltd [2001] 2 All ER 769 (overruling Trotman, above) (noted: Hopkins
(2001) 60 CLJ 458)
Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913 (noted: McBride (2003) 62 CLJ 255)
New South Wales v Lepore [2003] HCA 4 (noted: McBride (2003) 62 CLJ 255)
Weir v Chief Constable of Merseyside Police [2003] EWCA Civ 111
Mattis v Pollock [2003] EWCA Civ 887
Fennelly v Connex South Eastern Ltd [2001] IRLR 390
Attorney-General v Hartwell [2004] 1 WLR 1273
Bernard v Attorney-General of Jamaica [2004] UKPC 47
Brown v Robinson [2004] UKPC 56
Maga v Trustees of the Birmingham Archdiocese [2010] EWCA Civ 256 (noted: Bell (2010)
69 CLJ 440)