Lecture 9:

Employer’s Liability and

Vicarious Liability
LL2002: Law of Tort
Dr Rachel Maguire
Reminder: last week

1. Introduction to occupier’s liability

□ Historical development of the law
□ Scope of the OLAs
□ Definitions: “occupier” and “premises”

2. OLA 1957
□ Duty of care
□ Standard of care and breach of duty
□ Discharging the duty
□ Exclusions of liability

3. OLA 1984
□ Duty of care
□ Standard of care 2
Overview of the lecture today

1. Employer’s liability
□ Non-delegable duty of care

2. Vicarious liability
□ Justifications
□ Requirements
■ Employment relationship
■ Tort committed in the course of employment

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Employer’s liability vs vicarious liability

▣ An employer can be liable in tort in two key ways:

□ Employer’s liability – owes a personal, non-delegable duty
of care to employees
□ Vicarious liability – liability for harm caused by an
employee’s tort committed in the course of employment

Empolyers Liability Vicarious Liability

Personal, i.e. direct liability, E at Vicarious, i.e. strict liability for
fault someone else’s fault
Liability to employees Liability for employees

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 1.
Employer’s liability

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Employer’s non-delegable duty

▣ Non-delegable = D can’t delegate legal responsibility

▣ Duty = to take reasonable care for employee’s safety

▣ Wilsons & Clyde Coal v English [1938] AC 57

□ A competent workforce
□ Adequate material and equipment
□ A safe system of working (including effective supervision)
□ A safe workplace
▣ Single duty, just different manifestations
□ Wilson v Tyneside Window Cleaning [1958] 2 QB 110

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Competent workforce; adequate material and
equipment

▣ Competent workforce
□ Harassment: Waters v Commissioner of Police for the
Metropolis [2000] 1 WLR 1607
□ Harmful conduct: Hudson v Ridge Manufacturing Co [1957]
2 QB 348

▣ Adequate material and equipment

□ Employer’s Liability (Defective Equipment) Act 1969
□ Causation: McWilliams v Sir William Arrol [1962] 1 WLR
295

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Safe system of work; safe workplace

▣ A safe system of work (including effective

supervision)
□ Physical safety: Pape v Cumbria CC [1992] ICR 132
□ Psychiatric wellbeing: Corr v IBC Vehicles [2008] UKHL 13
□ Must take steps to see it is implemented: Mullaney v Chief
Constable of West Midlands Police [2001] EWCA Civ 700

▣ A safe workplace
□ Latimer v AEC [1953] AC 643

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 Pause

▣ Questions?

▣ More depth: Chapter 13 H&R

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 2.
Vicarious liability

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Vicarious liability

Employer/employee relationship
Employer Employee

Employer is liable Employee commits tort in the

course of employment.

Third party

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Justifying vicarious liability

▣ ICI v Shatwell [1965] AC 656

□ NOT “clear, logical or legal principle”
□ BUT “social convenience and rough justice”

▣ Various Claimants v Catholic Child Welfare Society [2012] UKSC

56
“to ensure … that liability … borne by a defendant with the means to
compensate the victim” per Lord Phillips
□ Employer more likely to be able to compensate victim
□ Tort committed due to activity being done on behalf of employer
□ Employee activity is likely part of the business activity of the employer
□ Employer creates the risk of the tort by employing employee for the activity
□ Employee is under the control of the employer

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Establishing vicarious liability

▣ To be hold an employer vicariously liable:

1. There must be an employer-employee relationship, or one akin to
employment between D and the person for whose actions they are
being held liable; and
2. The employee committed a tortious act…
3. … in the course of their employment

▣ Various Claimants v Catholic Child Welfare Society [2012] UKSC

56
□ Is the relationship between the two parties one which is capable of
giving rise to vicarious liability?
□ And if so, is there a close connection that links the relationship and
the act or omission of the wrongdoer?

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1. Employment relationship

▣ Contract of service (employee) not contract for services

(independent contractor)
▣ Old test: control over how work is done
“a servant is a person subject to the command of his master as to the manner in
which he shall do his work”

□ Yewens v Noakes (1881) 6 QBD 530

“Today it is not realistic to look for a right to direct how an employee should perform
his duties as a necessary element in the relationship between employer and employee.
Many employees apply a skill or expertise that is not susceptible to direction by anyone
else in the company that employs them. Thus the significance of control today is that
the employer can direct what the employee does, not how he does it.”

□ Lord Phillips, Various Claimants v Catholic Child Welfare Society [2012] UKSC 56

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1. Employment relationship

▣ Composite test considering various factors

▣ Market Investigations v Minister of Social Security [1969] 2 QB 173
□ Cooke J:
■ Is the person who has engaged himself to perform these services
performing them as a person in business on his own account?
■ Not an exhaustive list:
■ Control
■ Provides own equipment
■ Hires own helpers
■ Degree of financial risk taken
■ Degree of responsibility for investment and management
▣ Hall v Lorimer [1993] EWCA Civ 25
“stand back and determine ... on an overall view”

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1. Employment relationship

▣ Relationship akin to employment sufficient for Vicarious Liability

□ JGE v Trustees of Portsmouth RC Diocesan Trust [2012] EWCA Civ
938
■ Priests
□ Various Claimants v Catholic Child Welfare Society [2012] UKSC
56
■ Relationships treated as akin to employment based on 5 policy reasons
(see justifications slide)
□ Cox v Ministry of Justice [2016] UKSC 10
■ Prisoners
□ Armes v Nottinghamshire CC [2017] UKSC 60
■ Foster carers
□ Barclays Bank plc v Various Claimants [2020] UKSC 13
■ Independent contractors = acting in course of independent business of
their own

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2. Tortious act by employee

▣ Can be any tort, but commonly are:

□ Negligence
□ Assault and battery
□ Harassment

▣ nB. In a problem question: if not clearly stated on the facts that a

tort has occurred, then you need to establish one by going through
all of the relevant steps of that tort (e.g. for negligence: duty,
breach, etc)

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3. In the course of their employment

▣ Previous approach (now rejected)

Salmond Law of Torts 1907

 A tort is committed within the course of employment if it is:
a) a wrongful act authorised by the employer OR
b) a wrongful and unauthorised mode of carrying out an
authorised act

 Outside the course of employment?

employee is “on a frolic of his own” per
Parke B Joel v Morrison [1834] 6 C & P 501

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3. In the course of their employment

▣ Modern approach: close connection test

▣ Lister v Hesley Hall [2001] UKHL 22

□ sufficient connection between wrongful act and what
employer authorised?
□ if so = ‘wrongful modes of doing an authorised act’

“Whether the employee’s torts were so closely connected with his

employment that it would be fair and just to hold the employer
vicariously liable… [and whether the tort was] inextricably
interwoven with the carrying out by the [employee] of his duties.”

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3. In the course of their employment

▣ Close connection test in application:

▣ Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ

887
□ D employer vicariously liable because the bouncer was employed to keep
order and discipline at the nightclub.

▣ Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48

□ so closely connected with the authorised acts of the employee that they could
be fairly and properly regarded as done in the course of employment

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 3. In the course of their employment

▣ Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11

“It was a gross abuse of his position, but it was in connection with the business in which he was
employed to serve customers. His employers entrusted him with that position and it is just that as
between them and the claimant, they should be held responsible for their employee’s abuse of it. Mr
Khan’s [the employee’s] motive is irrelevant. It looks obvious that he was motivated by personal racism
rather than a desire to benefit his employer’s business, but that is neither here nor there.’

Lord Toulson para 47-48

▣ ”unbroken sequence of events”
▣ expands ‘close connection’ test?
1. field of activities of employer
2. “sufficient” connection between position + wrongful conduct
3. right for employer to be held liable (social justice principle)

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3. In the course of their employment

▣ Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC

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□ Dubai approach
■ ‘so closely connected with acts he was authorised to do that, for
the purposes of the liability of his employer to third parties, [it]
may fairly and properly be regarded as done by him while
acting in the ordinary course of employment’
□ “misunderstandings” since Mohamud
□ no change in the law intended
□ personal motivation relevant here

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 Pause

▣ Questions?

▣ More depth: Chapter 20 H&R

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 3.
Conclusion

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Recap

1. Employer’s liability
□ Non-delegable duty of care

2. Vicarious liability
□ Justifications
□ Requirements
■ Employment relationship
■ Tort committed in the course of employment

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The seminar

▣ Seminar 9: w/c 6 December

▣ Essential reading:
□ Horsey and Rackley , Chapter 20
□ Cox v Ministry of Justice [2016] UKSC 10
□ Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11
□ WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents)
[2020] UKSC 12
□ Barclays Bank plc v Various Claimants [2020] UKSC 13
□ Giliker ‘Can the Supreme Court halt the ongoing expansion of vicarious liability?
Barclays and Morrison in the UK Supreme Court’ (2021) 37 Professional
Negligence 55

▣ Seminar preparation:
□ 5 questions

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Extra things!

▣ Feedback forms

▣ Tort summative due Tuesday 7 December

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Questions?

▣ Live Q&A session: 4.30pm, 30 Nov, MS Teams

▣ Q&A Forum on Moodle

▣ Email (Rachel.Maguire@rhul.ac.uk)

▣ Office Hours 28