Other Areas of Vicarious Liability (AQA A-Level Law): Revision Notes
Other Areas of Vicarious Liability
Understanding the course of employment
Before exploring other areas of vicarious liability, it is essential to understand when an employee is acting within the course of employment. This determines whether an employer can be held vicariously liable for their employee's tortious acts.
The courts apply a two-stage test to establish whether conduct falls within the course of employment:
The Two-Stage Test for Course of Employment:
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The nature of the job: What function or field of activities has the employer entrusted to the employee? The courts take a broad view when assessing the nature of the employee's role.
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The close connection test: Was there a sufficient connection between the employee's position and the wrongful conduct to make it fair for the employer to be held liable?
Morrison Supermarkets v Various Claimants (2020)
This Supreme Court decision provides important clarification on the limits of the close connection test. The key findings were:
- An employee's conduct did not satisfy the close connection test when it involved pursuing a personal vendetta
- The employee's personal motive meant he was not acting to further his employer's business interests
- This decision refined the broader approach established in earlier cases like Mohamud v WM Morrison Supermarkets plc (2016)
The 'Frolic of Their Own' Principle
When an employee acts outside the course of employment, they are described as being on a frolic of their own. This phrase originates from Parke B's judgment in Joel v Morison (1834), where a horse and cart driver had detoured from his employer's business to visit a friend. The court found the driver was still acting within the course of employment because he was fundamentally doing his employer's business, despite the detour.
The distinction between being on a frolic and acting within the course of employment can be subtle, and the Morrison Supermarkets (2020) judgment has made this boundary clearer by emphasizing the importance of the employee's motivation and connection to the employer's business.
Deduction of wages
When a tort is committed by an employee who is acting within the course of employment, the employer bears primary liability to pay compensation to the injured party. This reflects the principle that the employer should be responsible for the actions of their workforce.
However, the employer is not without remedy. Under the Civil Liability (Contribution) Act 1978, the employer has the legal right to recover any compensation they have paid out from the employee who actually committed the tort. This recovery can be achieved through various means, including deduction from wages.
In practice, employers rarely exercise this right to recover compensation from employees, particularly for minor infractions. However, the legal mechanism exists to ensure that the employee who actually committed the wrongful act retains ultimate responsibility, even though the employer is the party who initially compensates the victim.
Vicarious liability and fault
The principle of vicarious liability represents a significant departure from the usual requirement that a defendant must be at fault to be held liable in tort. In vicarious liability cases, no fault needs to be proved against the employer at the time the tort was committed.
The no-fault principle
If the person who commits the tort is both employed and acting within the course of employment, the employer becomes automatically liable. The claimant does not need to demonstrate any wrongdoing or negligence on the employer's part beyond establishing the employment relationship and the course of employment.
This strict liability approach can appear harsh on employers, but it serves important policy objectives including ensuring that victims can obtain compensation from a defendant with sufficient resources (the "deep pockets" principle).
Arguments for employer fault
Although vicarious liability is a no-fault tort, it can be argued that employers do bear some degree of fault in the following ways:
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Employee selection: The employer chose to hire an employee who was liable to commit, or capable of committing, a tort while at work. Poor recruitment practices or inadequate vetting could contribute to tortious conduct.
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Inadequate training: The training provided for the job may be inadequate or inappropriate for the tasks the employee is expected to perform. Insufficient training may increase the likelihood of mistakes or misconduct.
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Insufficient supervision: The employer should arguably have supervised the employee more effectively to prevent tortious conduct.
The supervision dilemma
The third point about supervision presents a practical challenge for employers. While closer supervision might reduce the risk of torts being committed, employers typically want to grant employees, especially experienced ones, greater autonomy to perform their work effectively.
Requiring constant close supervision would necessitate employing a substantial number of supervisors to monitor every employee at all times. This would be impractical, expensive, and likely counterproductive to workplace efficiency and employee morale. The law recognizes this tension and does not expect employers to provide unrealistic levels of supervision.
Liability for independent contractors
The traditional rule
The traditional position in English law was clear and straightforward: employers would only be held vicariously liable for the torts of their employees, not for the torts of independent contractors. This distinction reflected the different levels of control employers exercise over employees compared to independent contractors.
Recent developments in case law
This traditional rule has undergone significant development through a series of important recent cases. The courts have expanded the circumstances in which vicarious liability can apply beyond the traditional employer-employee relationship.
Key cases in this development:
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Various Claimants v Catholic Child Welfare Society (2012) (also known as the Christian Brothers case): This case involved children who were abused while in the care of a residential institution. The Supreme Court conducted a wholesale review of the law and laid the foundations for more detailed principles in later cases.
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Cox v Ministry of Justice (2016): This case established that a prisoner working in a prison kitchen could be treated as an "employee" of the Ministry of Justice for vicarious liability purposes, even though prisoners are not employees in the traditional sense. This extended vicarious liability to relationships akin to employment.
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Armes v Nottinghamshire County Council (2017): This case further developed the principles for establishing vicarious liability in non-traditional employment relationships.
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Barclays Bank plc v Various Claimants (2020): This case provided important clarification on the limits of the expanded approach.
The Barclays Bank clarification
In Barclays Bank plc v Various Claimants (2020), Lady Hale provided crucial guidance that helps define the boundaries of vicarious liability for independent contractors. She stated:
Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.
This statement provides important clarity: where the person committing the tort is operating as part of a business that is entirely independent of the defendant's business, vicarious liability will not apply. The court does not need to conduct the detailed five-stage analysis developed in earlier cases if it is clear that the tortfeasor was genuinely running their own independent enterprise.
This preserves a meaningful distinction between genuinely independent contractors and those whose relationship with the defendant is sufficiently close to justify imposing vicarious liability. The key question is whether the contractor's business is truly independent or whether they are so integrated into the defendant's operations that they should be treated as equivalent to an employee for liability purposes.
Key cases for vicarious liability
The following table summarizes the key cases you need to know for vicarious liability. Use this as a quick reference guide when revising or answering exam questions.
| Case | Facts | Legal issue | Ratio decidendi |
|---|---|---|---|
| Various Claimants v Catholic Child Welfare Society (2012) (Christian Brothers case) | Children were abused while in the care of a residential institution | Wholesale review of the current law on vicarious liability | Laid the foundations for more detailed principles developed in Cox and Mohamud |
| Cox v Ministry of Justice (2016) | A claimant working in a prison kitchen was injured by the negligence of a prisoner who was also working in the kitchen | Was the prisoner an 'employee' of the Ministry of Justice for vicarious liability purposes? | Yes – the relationship was sufficiently akin to employment to justify imposing vicarious liability |
| Mohamud v WM Morrison Supermarkets plc (2016) | A claimant was assaulted by a member of staff at a Morrison's petrol station | Was the employee acting in the course of his employment when committing the assault? | Yes – the employee's personal motivation (racism) was irrelevant; what mattered was whether there was a sufficient connection between his role and the wrongful conduct |
| Joel v Morison (1834) | Joel was struck by a horse and cart whose driver was Morison's agent. The driver had detoured to visit a friend when the accident occurred | Was the employee acting in the course of his employment or on a frolic of his own? | The driver was still doing Morison's business despite the detour, so he was not on a frolic |
| Morrison Supermarkets v Various Claimants (2020) | An employee who held a grudge against his employer deliberately leaked the personal information of thousands of other employees | Was the employee acting in the course of his employment? | No – the employee's personal motive meant the close connection test was not satisfied; he was pursuing a personal vendetta |
Exam guidance
Vicarious liability is assessed in Paper 2 of the AQA A-Level Law examination.
Potential question types
You may encounter vicarious liability in the following formats:
- Multiple-choice questions testing your understanding of the basic rules of vicarious liability
- Mid-length questions (10-15 marks) asking you to explain the meaning of vicarious liability and then analyze it in relation to fault, morality, or law reform
- Maximum-length questions (30 marks) requiring you to apply vicarious liability principles to a scenario and then evaluate whether it is fair to impose liability in this way
Exam technique tips
Essential Tips for Exam Success:
When answering questions on vicarious liability:
- Define key terms clearly: Always define vicarious liability at the outset and explain the two elements that must be established (employment relationship and course of employment)
- Apply the two-stage test: Remember to apply both parts of the course of employment test from Morrison Supermarkets (2020)
- Use case law effectively: Support your arguments with relevant cases, providing brief facts and the legal principle established
- Distinguish Morrison cases: Be careful to distinguish between Mohamud v WM Morrison Supermarkets plc (2016), where vicarious liability was established, and Morrison Supermarkets v Various Claimants (2020), where it was not established
- Address policy considerations: In evaluation questions, discuss the policy reasons for imposing vicarious liability, such as ensuring compensation for victims and encouraging better employer practices
- Consider fairness: When asked about fairness, balance the interests of injured claimants (who need compensation) against the position of employers (who may not have been personally at fault)
Key Points to Remember:
- Vicarious liability is a no-fault tort – the employer can be held liable even though they did not commit the wrongful act themselves
- The close connection test requires a sufficient link between the employee's role and the wrongful conduct; personal vendettas break this connection (Morrison Supermarkets v Various Claimants 2020)
- Employers can recover compensation from employees under the Civil Liability (Contribution) Act 1978, though they rarely do so in practice
- The 'frolic of their own' principle describes when an employee acts outside the course of employment
- Vicarious liability can extend beyond traditional employees to relationships "akin to employment," but not to genuinely independent contractors (Barclays Bank plc v Various Claimants 2020)