According to Giliker (2021) the expansion of the doctrine of vicarious liability:”has,

perhaps unsurprisingly, brought uncertainty, as litigants test its boundaries”.

Explain the recent cases in which the Supreme Court has expanded the doctrine of
vicarious liability and illustrate its attempts to address this uncertainty.

Tort of vicarious liability has been developed to make employers liable for the wrongs
done by the employee. However, to make employer liable for the said tort, two things
are required which include first to establish a relationship between D1 and D2 capable
of giving rise to vicarious liability; and secondly a connection that links the relationship
between D1 and D2 and the tortious act or omission of D1. In the previous century, law
of vicarious liability was solely restricted to the relationship of “Master- Servant '' as held
in the case of Yewens v. Noakes. As per writer Paula Giliker, the doctrine has
expanded after the case of Lister vs Hesley Hall case, and included a wide category of
relationships and tortious activities for which the defendant [D2]/usually the employer of
the tortfeasor [D1]) will be held strictly liable. Various Claimants' cases have clearly
established that the doctrine applies to both intentional and unintentional torts. To the
extent of the second element of doctrine, transformation has also been seen through
various legal tests including Salmond Test, Close Connection Test, Sufficient
Connection Test given in different cases, specifically the Lister case and the
Mohammad case. This uncertainty has led to a rapid growth of cases, including six
judgments from the House of Lords/Supreme Court between 2001-2017, three Privy
Council decisions over the same period, and numerous Court of Appeal and lower court
judgments. Attempts by the Supreme Court in 2013 to take stock of the law and provide
greater guidance, and again in 2016, have failed to stem the flow of cases.

Expansion of the doctrine has, perhaps unsurprisingly, brought uncertainty with respect
to differentiation between employee and independent contractors. This uncertainty has
led to a rapid growth of cases. Attempts by the Supreme Court in Various Claimant
cases to take stock of the law and provide greater guidance, and again in Cox case,
have failed to stem the flow of cases. In the case of Cox, the Supreme Court itself has
described vicarious liability as a doctrine 'on the move' which has 'not yet come to a
stop'. In Armes' case, the Supreme Court confirmed the ongoing expansion of the
doctrine, which would now include foster parents caring for children on behalf of a local
authority. Parallel to such developments, in 2013 the Supreme Court reviewed and
reformulated the law relating to non- delegable duties which render the employer liable
for the torts of independent contractors working for him or her. In two recent cases of
Barclays Bank and Morrison, Supreme Court tried to seek to provide guidance with the
application of relationship and connection tests and constrained the expansion of
doctrine by adopting restrictive interpretation of both requirements. These cases are
considered as significant contributions with regards to making the law unambiguous.

Vicarious liability is the liability of an employee for the wrongdoing of his employee. It is
a form of strict and secondary liability where the primary liability must be established on
the part of the wrongdoer employee. Mark Lunney and Ken Oliphant define vicarious
liability as an employer being held liable for the wrongful acts of an employee committed
in the course of employment. G.Williams had also explained the reasons behind this
doctrine in “Vicarious Liability and the Master’s Indemnity” where the master is the
cause in the factual sense, for if he had not employed the servant to do the particular
work, the harm would not have happened and that the master has a purse worth
opening. The recent developments in law of vicarious liability holds employers liable for
employee’s criminal acts, this is seen to be sound and logical incremental development
but it could also be argued to be unfair to the employers.

Vicarious liability policy is to ensure that liability of wrongdoing is borne by the person
who has means to compensate as seen in Various Claimants v Catholic Child Welfare
Society (2012). For the doctrine to come into force, there are two elements laid down by
Paula Giliker ‘Vicarious Liability in Tort: A Comparative Perspective” that must first be
satisfied. Firstly, it is the test to determine whether there is an employer-employee
relationship and secondly, whether the conduct by the employee had occurred within
the course of their employment. Previously, to identify whether there has been an
employer-employee relationship between the tortfeasor and the defendant, the court
would apply the “control test” on considering the level of control exerted over the
individual. As Justice Cooke in Market Investigation v Minister of Social Security
suggested that control was only one factor to consider and the degree of risk and
responsibility the individual assumes would be relevant in the determination of the
relationship which is known as economic reality test.

Nevertheless, the courts have now rejected the “control test” as an unsatisfactory
means of determining whether there has been a relationship between the tortfeasor and
the defendant. Thus, a modern approach to this issue has been established and will
only apply when there is an existence of a relationship “akin to employment”. An
example to this can be seen in the case of Cox v Ministry of Justice, where a prisoner
negligently injured the victim and hence, the prison was held for being vicariously liable.
The reason for this is because there is a high degree of control exercised by the prison
and also the fact that the ministry of justice had gained an economic benefit from the
work by the prisoner. Therefore,this made the court of appeal’s finding of a relationship
akin to employment.This modern approach can be said for being much more lenient
today as according to Mark Lunney and Ken Oliphant that at one time, a contract for
employment is required in order to bring an action on vicarious liability but now, even
quasi-employment relationships may give rise to a vicarious liability. Additionally, as
Ward LJ also suggested in E v English Province of Our Lady of Charity that the modern
approach had provided flexible interpretation of a relationship of employment. Thus, it
may be argued that the “law is on the move” in the sense that an employer may be
liable even where a contract of employment does not necessarily exist as judges are
now more open to finding a relationship of employment in a variety of arrangements to
strengthen the development of law on ensuring what is called “just”. However, there is
also risk of sacrificing certainty in how judges should approach the application of legal
doctrines, leading to the over-extension of this element of vicarious liability.

On the other hand, the second requirement is arguably the most significant and
controversial. This is that the employee must have been in the course of their
employment when they committed the tort. To identify whether the particular tort was
committed in the course of employment depends on the circumstances leading up to the
occurrence of tort, including the reasons for its occurrence. Previously, to determine
whether an employee’s tort was committed in the course of his/her employment, the
court would use the Salmond test to identify. This test was set out by the great tort
lawyer Sir John Salmond where in his “Law of Torts” he explained that an employee’s
tort will have been committed in the course of his employment if the employee did
something, he was employed to do by committing that tort. For example, this is seen in
the case of Poland v Parr where the tort was conducted when protecting the master’s
property which is clearly to be in the course of the employment.

There are a number of decisions in case law in regards to an employee's criminal act
which could see the development through the time. In Limpus v London General
Omnibus Company (1862), the bus driver was racing with rival buses on road while
being on duty transporting passengers and had an accident. The court held the
company was vicariously liable. However, in Warren v Henlys (1948), battery and
assault by petrol attendant as an act of personal vengeance against a customer of the
garage was outside the scope of his employment. The employer was not liable. In
Trotman v North Yorkshire County Council (1999), the Salmon Test was applied in the
case of a teacher who used school trips to commit sexual assaults on a dependent
child. It is difficult to describe such conduct as an unauthorized mode of carrying out the
deputy headmaster’s duty. The Court refused to hold the employer liable on the grounds
that the perpetrator was not acting in the course of employment.
However, Trotman was overruled by the House of Lords in the case of Lister v Hesley
Hall Ltd. (2002). The warden of residential school for children was convicted of sexual
assaults on pupils during his employment at the defendant’s school. The school was
found vicariously liable and the Salmond test was not suitable for cases of criminal
wrongdoing. Lister establishes the close connection test which is to be applied with view
to achieving a socially just outcome, consistent with public policy and the need for
compensation. The court has to look at the nature and purpose of job and the
circumstances and context in which the act took place.

The case of Dubai Aluminium v Salaam (2002) further endorsed the Lister test as the
proper approach when the wrongdoing is a criminal act. The courts held that fraud by a
solicitor was closely connected to his employment, thus fell within the scope of
employment.

Further, in Mattis v Pollock (2003), the court found the defendant, owner of nightclub
vicariously liable as the doorman of the club stabbed a guest. Although it was an act of
revenge , the violent attack happened in the club and the employee was a bouncer who
was authorized to use force in general.

However, in N v Chief Constable of Merseyside Police (2006), the Chief Constable was
not liable for an assault carried out by a policeman employed by the Merseyside force. It
was clear on the facts that the policeman used his position as an opportunity to commit
the assault. As the police owe no specific duty of care to potential victims and the
actions of policemen were not closely connected to his employment, it was not fair or
just to impose liability on the employer.

Based on this, it could be seen that courts do consider the situation in a case before
imposing liability for any criminal wrongdoing of an employee as it could be totally unfair.
There have been recent cases on this matter. In Muhammud v WM Morrisons (2016), a
customer and employee had an argument as the employee responded rudely. The
employee then assaulted the customer. The court used a close connection test and held
the employer vicariously liable as the employee was in the course of employment and it
was the job to attend to customers. Then in Barclays Bank v Various Claimants (2018),
the court applied CCWS and Cox decisions and found the bank was vicariously liable
for sexual assaults committed by one of its independent contractors. Dr Gordon Bates
sexually assaulted 126 claimants during pre-employment medical examinations.

In conclusion, the recent developments in the law of vicarious liability that render
employers liable for the criminal acts of their employees does represent sound and
logical incremental developments of the law. This is because the employer does have
some responsibility to ensure the employee follows the law, good conduct and discipline
as in some cases without the employment, there would be no such incidents. Next,
employers are usually insured and able to compensate better than an individual.
However, it could look unfair for the employer but the case law shows the instances
where court did not impose liability on employers when it was solely the employee’s
wrongdoing. Therefore, it is important for the courts to see the nature and situation of a