Nature and Purpose of Vicarious Liability (AQA A-Level Law): Revision Notes
Nature and Purpose of Vicarious Liability
Overview of vicarious liability
Vicarious liability occurs when a third person (typically an employer) has legal responsibility for the unlawful actions of another person (typically an employee). In tort law, this means employers can be held liable for torts committed by their employees during the course of their employment, even though the employer did not commit the tort themselves.
Assessment context: This topic is assessed in Paper 2, usually alongside negligence rather than as a standalone topic. You will need to apply the law to given problem scenarios.
Important note: This area of law is constantly developing. In Various Claimants v Catholic Child Welfare Society (2012) – often called the Christian Brothers case – Lord Phillips described vicarious liability as being "on the move". Recent significant developments include WM Morrison Supermarkets plc v Various Claimants (2020) and Barclays Bank plc v Various Claimants (2020), which have further shaped how the law operates.
The nature and purpose of vicarious liability
Employers can be held vicariously liable for torts committed by their employees during the course of employment. This principle serves several important purposes, which were outlined by Lord Phillips in the Christian Brothers case. These reasons are sometimes referred to as "the five incidents":
1. Financial resources and insurance: Employers typically have greater financial resources than individual employees and are better placed to compensate victims. Employers are also expected to have insurance coverage for such liability.
2. Activity performed on behalf of the employer: The tort will have occurred as a result of activities the employee was performing on behalf of the employer.
3. Business activity connection: The employee's activities are likely to form part of the employer's overall business operations.
4. Risk creation: By employing someone to carry out particular activities, the employer has created the risk that the employee might commit a tort while performing those activities.
5. Employer control: The employee will have been under the employer's control to a greater or lesser degree when performing their duties.
These five incidents provide the policy justifications for why the law imposes vicarious liability on employers. Understanding these rationales helps explain why courts apply the doctrine even when employers have done nothing wrong themselves.
Establishing vicarious liability: the three-question test
To determine whether vicarious liability applies, three essential questions must be answered:
1. Was a tort committed?
There must first be an established tort. For A-Level Law purposes, this is most likely to be negligence, though the same principles can apply to other torts and even in criminal law contexts.
2. Was the tortfeasor an employee?
The person who committed the tort (the tortfeasor) must be an employee of the defendant, not an independent contractor or other category of worker.
3. Was the employee acting in the course of employment?
The tort must have been committed while the employee was acting in the course of their employment. This is often the most complex question to determine.
All three questions must be answered YES for vicarious liability to be established. If any one question is answered NO, then vicarious liability does not apply.
Testing employment status: the Salmond Test
The traditional approach to determining whether an employee was acting in the course of employment is known as the Salmond Test.
According to this test, an employer will only be liable for torts which the employee commits in the course of employment. This includes two categories:
1. Wrongful acts actually authorised by the employer: Any acts that the employer explicitly permitted or instructed the employee to perform, even if those acts turned out to be tortious.
2. Wrongful ways of doing authorised acts: Acts that represent an improper or negligent way of carrying out tasks the employer has authorised, even if the employer expressly forbade the specific wrongful manner in which the act was performed.
This second category is particularly important because it means an employer cannot escape liability simply by forbidding certain behaviour. If an employee commits a tort while performing their authorised duties in an unauthorised manner, the employer may still be liable.
The close connection test
Where there is doubt about whether an act falls within the course of employment under the Salmond Test, courts apply the close connection test. This test examines how closely connected the employee's tortious conduct was to the work they were employed to do.
The court will assess:
- The nature of the employee's role and responsibilities
- The relationship between the employee's authorised duties and the tortious act
- Whether the employment gave the employee the opportunity to commit the tort
- Whether there is a sufficient connection between the employment and the wrongful act
This test has evolved to address situations where the traditional Salmond Test may be too narrow, particularly in cases involving intentional wrongdoing or criminal acts by employees.
Evaluation point: Consider how and why the Salmond Test has developed over time. The introduction of the close connection test represents judicial recognition that employment relationships and working practices have changed, requiring a more flexible approach to determining vicarious liability.
Exam guidance
When answering problem questions on vicarious liability:
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Identify the tort: First establish what tort (usually negligence) has been committed and by whom.
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Establish employment status: Determine whether the tortfeasor was an employee of the defendant.
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Apply the Salmond Test: Analyse whether the tortious act was either:
- An authorised act performed wrongfully, or
- An unauthorised way of performing an authorised act
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Consider the close connection test: If the Salmond Test is unclear, examine the closeness of connection between the employment and the tortious conduct.
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Reach a conclusion: Based on your analysis, conclude whether vicarious liability is established or not established.
Remember to support your answer with relevant case law and apply legal principles to the specific facts of the scenario. A structured approach using these steps will help you achieve higher marks.
Key Points to Remember:
- Vicarious liability makes employers legally responsible for torts committed by employees during the course of employment
- The principle is justified by the five incidents: financial resources, activity on behalf of employer, business activity, risk creation, and employer control
- Three questions establish liability: (1) Was a tort committed? (2) Was the tortfeasor an employee? (3) Were they acting in the course of employment?
- The Salmond Test covers authorised wrongful acts and wrongful ways of doing authorised acts
- The close connection test applies where there is doubt, examining how closely the tortious conduct relates to the employment
- This area of law is constantly developing – stay updated with recent cases like WM Morrison Supermarkets (2020) and Barclays Bank (2020)