Liability for Torts ‘Closely Connected’ to Employment (OCR A-Level Law): Revision Notes

Liability for Torts 'Closely Connected' to Employment

Introduction to the expanded scope of vicarious liability

Traditionally, vicarious liability only applied to torts committed by employees within the classic employer/employee relationship. However, the courts have recognised that modern working arrangements are more complex, and strict adherence to traditional employment categories could leave victims without a remedy.

Key developments in modern case law

Three landmark Supreme Court cases have shaped the current approach to vicarious liability beyond traditional employment:

Various Claimants v Catholic Child Welfare Society (2012) (the Christian Brothers case) provided the foundation for expanding vicarious liability. This case involved children who suffered abuse whilst in the care of a residential institution. The Supreme Court had to determine whether the organisation could be held vicariously liable for the actions of individuals who were not technically employees. This case established the framework for considering relationships that are "akin to employment."

Cox v Ministry of Justice (2016) applied these principles in a prison setting. The claimant worked in a prison kitchen and suffered injury due to the negligence of a prisoner who was also working there. The crucial question was whether a prisoner performing work could be considered in a relationship sufficiently analogous to employment. The Supreme Court held that the prisoner was in such a relationship with the Ministry of Justice, meaning the organisation could be vicariously liable.

Armes v Nottinghamshire County Council (2017) further developed the law by considering the liability of local authorities for foster carers. This case continued the trend of extending vicarious liability beyond traditional employment relationships.

The modern test for vicarious liability

The Supreme Court provided definitive guidance in Barclays Bank plc v Various Claimants (2020), where Lady Hale articulated the current test. She stated that the fundamental question has always been whether the tortfeasor is carrying on business on his own account, or whether he is in a relationship akin to employment with the defendant.

Crucially, Lady Hale clarified that where it is obvious the tortfeasor is operating their own independent business, entirely separate from the defendant's business, there is no need to consider the five incidents at all. Vicarious liability will simply not apply in such circumstances.

Understanding the independent business exception

Key cases establishing vicarious liability principles

Ready Mixed Concrete v Minister of Pensions (1968)

Although not strictly a vicarious liability case, this decision provided an essential definition that courts continue to use. The case involved a driver whose contract labelled him an "independent contractor," but the reality was more complex. He had to purchase his own vehicle, which was then painted in company colours and driven according to company rules.

The significance of this case is that it established the definition of an employee under a "contract of service". This definition helps courts distinguish between genuine employees and independent contractors, which is fundamental to determining when vicarious liability applies.

Various Claimants v Catholic Child Welfare Society (2012) – the Christian Brothers case

This case represented a wholescale review of vicarious liability law. Children suffered abuse whilst in the care of a residential institution, and the question arose whether the organisation could be held vicariously liable for the tortious acts committed.

The Supreme Court laid the foundations for the more detailed principles that would emerge in subsequent cases like Cox and Mohamud. It established that vicarious liability could extend beyond traditional employment relationships where the relationship shared key characteristics with employment.

Cox v Ministry of Justice (2016)

This case clarified that prisoners working in prison facilities could be in a relationship akin to employment for vicarious liability purposes. The claimant worked in a prison kitchen and suffered injury due to a prisoner's negligence.

Mohamud v WM Morrison Supermarkets plc (2016)

This case examined whether an employee's acts could be within the course of employment even when motivated by personal reasons. The claimant was assaulted by a member of staff at a Morrison's petrol station.

The Supreme Court held that the employee was acting in the course of his employment. Significantly, the Court ruled that the employee's personal motivation, such as racism, did not take his actions outside the scope of employment. What mattered was whether there was a sufficient connection between the employment and the tortious act, not whether the employee intended to benefit the employer.

Joel v Morison (1834)

This historic case established the principle of "frolic" in relation to course of employment. Joel was struck by a horse and cart driven by Morison's agent. The accident occurred when the driver had made a detour to visit a friend.

The court had to determine whether the driver was acting in the course of employment at the time of the accident. It was held that because the driver was still engaged in Morison's business (he had merely detoured, not abandoned his duties entirely), he was not on a "frolic of his own." This meant Morison could be vicariously liable.

Morrison Supermarkets v Various Claimants (2020)

This case provided an important counterpoint to the earlier Mohamud decision. An employee who held a grudge against his employer deliberately leaked the personal information of thousands of other employees.

The Supreme Court held that the employee was not acting in the course of employment. The employee's personal motive in this case meant that the "close connection" test was not satisfied. Unlike Mohamud, where the assault occurred during customer interaction (a core employment function), this deliberate leak was purely personal vindictiveness with no connection to employment duties.

The course of employment requirement

For vicarious liability to apply, the tort must be committed during the course of employment. This does not mean the employee must be furthering the employer's interests or that the employer must benefit from the act. Rather, there must be a sufficiently close connection between the employment relationship and the tortious conduct.

The courts consider factors such as:

• Whether the act was authorised by the employer
• Whether the act was a wrongful way of doing authorised work
• Whether the act occurred during working hours
• Whether the act was connected to the employee's role
• Whether the act had any connection to employment duties

Acts motivated purely by personal grievance, with no connection to employment functions, will generally fall outside the course of employment.

Exam guidance

When answering questions on vicarious liability for torts closely connected to employment, students should:

For problem questions:

• Identify the relationship between the parties (is it traditional employment or akin to employment?)
• If unclear, apply the five incidents test from Lord Phillips
• Consider whether the tortfeasor operates an independent business
• Analyse whether the tort was committed in the course of employment
• Apply the close connection test
• Distinguish between personal motive cases (Mohamud vs Morrison Supermarkets)

For essay questions:

• Discuss the evolution from traditional employment to "akin to employment"
• Analyse the policy reasons for expanding vicarious liability
• Evaluate the clarity (or lack thereof) in the current law
• Consider the impact of recent Supreme Court decisions
• Discuss the balance between compensating victims and not imposing unfair liability

Remember!