Vicarious liability


The doctrine

VL makes one party strictly liable for the torts of another. It is not a tort in itself, it is a doctrine. There is no need to prove the defendants fault. There is an element of social justice involved and so it needs justification. One justification is that the company has control and gains a benefit, they should bear the burden as well.

Traditionally the master was strictly liable for the torts of his servant- 'the master at his peril ought to take care what servants he employs and it is more reasonable that he should suffer for the cheats of the servants than strangers and tradesmen.' Holt.

Developed into employee/employer relationships.

VL has however been 'on the move' to reflect the changing nature of employment or responsibility today. Latest authority is Cox v MoJ on the type of relationship necessary to trigger VL.

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For VL to exist-

1) there must be a tort committed by the tortfeasor (unintentional/intentional)

2) the tortfeasor must be an employee or in a relationship which resembles that of employment (latest case- Cox v MoJ)

3) the tort must be committed in the course of ones employment (latest case- Mohamud v Morrisons Supermarket)

Justifications for VL-

1) enterprise risk- need to take the burden on the risk when you create it.

2) deterrence- doesnt deter the employee, tends to be in relation to the employer. May recruit better people and train them properly.

3) loss distribution- employer may have insurance. They may pass on the loss to the public through raising the prices of goods. Social justice. May not work with small companies/charities.

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Salmond test

4) additional justification- vulnerable victims need compensation. Deeper pockets is now less valid.

The Salmond test 1907- What is meant by tort committed in the course of employment?

Salmond defined a wrongful act committed by a servant in the course of his employment as either- a) a wrongful act authorised by the master or b) a wrongful and unauthorised mode of some act authorised by the master... with the amplification that a master is liable for acts which he has not authorised if they are so connected with the acts which he has authorised, that they may rightly be regarded as modes- although improper modes- of doing them.

This theory lasted a very long time- until 2000. a) is more primary liability of the employer. Authorised act means doing your job.

b) what is a wrongful and unauthorised mode of doing some act authorised by the master? This is easy to explain with negligence and unintentional torts.

  • Limpus v LGO 1862- very important case. Bus drive went against company rules and
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Wrongful and unauthorised mode

with another bus driver. One bus fell over and house and bus were damaged. This act was prohibited by the company. Court decided that despite the prohibited conduct, he was still doing his job but in an unauthorised way. Obiter- said if the act was done with spite, this may not apply.

  • Roland v Parr- cart filled with sugar. One employee was walking behind the cart. Child looked like he might steal some sugar and so he hit the child, who then had to have his leg amputated. Court decided he acted in his employment as he had implied authority to protect the goods.
  • Beard v LGO- man turned the bus around and hit somebody, who them claimed for personal injury. He was bus conducter, he was not meant to drive the bus and so this wasn't in his job or authorised. Employer was not liable.
  • Rose v Plenty- Milkman gave a small boy a job so work could be done faster. Having children on a milk float was prohibited. Child runs and jumps on the float and fractures his ankle. Completely against company rules. Plenty was working delivering milk at the time so the company was liable. He was doing his job but in an unauthorised way.
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Intentional torts

Plenty case seems very broad. They said he was furthering the business- but this is a very stretched interpretation. Public policy plays a role.

They do need to be doing their job at the time. But given lots of people do different jobs, this creates a lot of uncertainty.

Application of the second part of the Salmond test to intentional torts-

Tort of conversion-

  • Lloyd v Grace Smith 1912- solicitor had an elderly client, who was rich. The firm held him out. Unsupervised he said she should sell all her property and give it to him. She followed the advice and transferred ownership. He's stolen her things. This is fraud. He did this at work, so should the employer be vicariously liable?
    They said the firm should be liable. They can afford it and might think twice when hiring.
  • Morris v Martin 1966- fur coat went to dry cleaners and one of the employees who was responsible for cleaning stole it. His job was to take care. Surely he negated his duty? The court found vicarious liability. They stretched it unduly.
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Intentional torts

Trespass to person-

  • Trotman v NYCC 1999- headmaster organised school trip to Spain. It was a school for learning disabilities. T had severe epilepsy at night and so had to be supervised. The boy slept in the headmasters room and he sexually assaulted him. Headmaster imprisoned. Can they sue the council for this? Is that an unauthorised way to teach? Court said there was no vicarious liability. He was not doing his job in an unauthorised way. (This has now been overruled by Lister).
  • Warren v Henleys 1948- petrol attendant suspects someone is leaving without paying. Accuses the man and the man said he wasnt stealing. There is an argument and the man leaves and comes back with a police officer to complain. Policeman goes to leave and then the petrol attendant punches the customer. Was this in his employment? No vicarious liability. They said he was in a frolic of his own. Said it became a personal thing and was not in his employment. 

These cases opened up VL to intentional torts.

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Trotman and Canadian cases

The trouble with Trotman 1999-

Issue- could this tort be a wrongful and unauthorised mode of carrying out the authorised acts of the deputy headmaster or was this an independent act outside of the scope of his employment?

Butler- Sloss: Mere opportunity to commit the crime was not enough for VL to be triggered. It was a negation of ones duties. Hands were tied by the wording of the second part of the Salmond Test. 'Acts of physical assault may not be easy to categorise, they can range from a brutal unprovoked attack to forcefully defending a pupil. But if they are sexual, I cant visualise it being an unauthorised mode of carrying out an authorised act, but I wouldn't close the door.'

The Canadian cases- how persuasive are these?

Bazley v Curry 1999- sexual assault on vulnerable victims. The employees were in loco parentis to them. Canadian courts could follow Trotman or something else. They said to look at conduct authorised by employer. If theres a close connection between that and the tort, then VL should be established. Needed to protect the claimants.

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Canadian cases

Said if you created the risk you had to face the burden if something goes wrong. Gave some factors- policy factors are opportunity given to employee, did the wrongful act whilst furthering the employers aim, to what extent does it relate to friction, confrontation and intimacy, and vulnerability of the victim and how much power was given to the employee. Is it fair and just to impose it? Mainly enterprise risk. She also said charities should be treated the same as businesses. There was vicarious liability found in this case.

This is a policy driven approach, and developed the concept of a close connection test. Heavy reliance on enterprise liability and risk as an appropriate reason to impose VL here.

Paula Giliker criticised the decision saying it leaves little guidance for future cases.

Contrast Bazley with Jacobi v Griffiths 1999- There was no VL in this case. The volunteer helped at a childrens centre, and abused a child but not in their employment. Felt employer hadnt created the risk. The job wasn't as intimate at the job in Bazley.

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A time for change

Lister v Helsey Hall 2001 HoL- Very important case. It introduced the close connection test. Warden was employed to look after boys at a boarding school. Very involved in all their lives and had a parental role. He sexually assaulted boys. At trial the claimants lost, on primary liability. Trial judge said had to follow Trotman but said there was liability on the fact that he failed to report his own assault and was a wrongful way to do his job. CoA said that wasnt right. They still followed Trotman. HoL had to decide whether to follow Trotman. Steyn- going to overrule Trotman, it is fair just and reasonable that they get compensation. Went with part b) of Salmond test- 'if they are so connected with the act, they're authorised.' Now the test for assault is 'close connection' between act theyre employed to do and the tort committed, but only if fair. He wanted practical justice. It had no theoretical basis.


Giliker says that the test is too vague and doesn't provide enough guidance for future cases.

Dubai Aluminium v Salaam 2002- 'the close connection test focuses attention in the right direction but it affords no guidance on the type or degree of connection.'

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Post Lister

  • Mattis v Pollock 2003- bouncer had an argument with customers. Goes home during shift, gets a knife and stabs a customer. His spinal cord is severed. There was vicarious liability. Close connection. They had encouraged him to be violent and it is a violent job anyway.
  • Bernard v AG Jamacia 2004- policeman not on duty but saw someone in phone box and shoots the man after telling him to leave. He then follows man to hospital and handcuffs him to the bed. Police had given him a gun. Must be a close connection between the job and what you did or your job created the risk which was reasonably incidental to job. Really widens it. Criticised for its scope.
  • Majroski v Guys NHS Trust 2006- Manager bullies employee. Employee suffers anxiety and stress. Brings under Protection From Harassment Act 1997. Designed for stalkers. Can you be VL for statutory duty? Unless excluded from the statute, it could be used. Employee wins for managers actions. Tricky case as doesnt every employer create this risk? Very low standard. Giliker said hurdles are very low. Balance isnt struck for fairness.
  • Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church 2010
  • N v Chief Constable of Merseyside (no VL found)
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Mohamud v Morrisons

Mohamud v Morrisons- main case for deciding whether the act was committed in the course of employment. The customer asks to have something printed and the employee racially abuses the customer and assaults him. The supervisor tries to restrain him and he keeps going.

At trial there was no VL as the court was influenced by Warren v Henleys.

In the CoA there was no VL again, it was unanimous. Christopher Clarke- 'if the only question is whether it is fair and just to impose liability, I would say yes, but if we apply the close connection test, here it parts company with reality.'

Supreme Court- there was VL. They used the close connection test. Toulson said in the furture you need to look at the job in a broad way. What were the duties? He was doing his job as he ordered the customer off the premises, he just did it in a violent way. Enterprise risk and practical justice. Didnt overrule Warren v Henleys. In this case there was a seamless sequence of events with no break. They were not going to be able to be persuaded to change the close connection test and replace it with an equally vague 'representative capacity test.' Was there sufficeint connection between the employees conduct and his position so as to make it right to fix the employer with liability?

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Mohamud v Morrisons

Toulson- felt Khan hadnt taken off his metaphorical uniform when he left the kiosk. He wasn't acting on a frolic of his own.

'Ordering Mohamud off the premises in a foul mouthed way was in the field of his activities. He was responding to a customers enquiries... This was not something personal between them.'

Now consider Warren v Henleys. What are the similarities? How can it be distinguished? What does Toulson say of the decision in Warren?

So where are we now?

  • The Salmond test is still useful in unintentional torts.
  • Lister is still the test. 
  • Enterprise risk is still influential.
  • Broad or loose interpretation of 'authorised acts'- identify the general field of activities entrusted to the tortfeasor by the employer
  • Do we need a seamless series of events?
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Criticisms of Mohamud

Phillip Morgan- he suggests the Mohamud has replaced close connection with causal connection- provided there is an unbroken chain between the role of the employee and the tort.

No need for there to be an inherent risk of harm in the type of employment anymore.

Test is even more broad than Mattis v Pollock.

Own notes- Did 'get out of the car' not break the sequence? Some said has gone too far. No certainty. Much wider liabilty. Can distinguish Warren. Doesnt make much sense.

Essential cases- Trotman, Lister, Dubai Aluminium, Mattis, Majrowski, Mohamud and Fletcher v Chancery Lane Supplies.

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Employee Status

Is employee status important? Used to be really important but not as much now.

How to determine who is an employee-

Historical tests- Control test- Mersey Docks 1947- used to hire out cranes and drivers. They arranged with some stevedores for them to hire out. Contract between docks and stevedores. To treat crane driver as their own employee. Crane driver negligently drove into someone and seriously injured them. Received compensation. Who could they claim from? The harbour board were employers and cant delegate this. They hired and fired and told them what to do.

Did the employer have power over exactly how they did the work?

'This test was so stringent as to render a transfer of VL almost impossible in practise.'

Integration test- Stevenson v MacDonald 1952- were they integral to the business?

Multiple test- Ready Mixed Concrete- about tax and national insurance. Said need to take into account lots of different factors. Do they pay their own national insurance, do they have their own tools? etc

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Employee status

Dual liability of employers- Viasystems v Thermal Transfer 2005- subcontracted work three times. The person who did the tort was the third one. Could you have two employers liable? Yes they could. It was a 50/50 split in that case.

Signs of a change in attitude- JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust 2012- priest used position to sexually abuse 6 and a half year old. Claimant, aged 48 when case came. Defendants challenged the fact that the priest was an employee. They claimed his office was through God. The prosecution alleged akin to employment situation. Bishop doesnt tell him what to do or pay his salary and the priest has lots of discretion. Ward said was time to change the law to widen scope of employee. Priests relationship with the trust could be akin to employment.

Justification- creation of risk and vulnerable victim, and abuse of fiduciary position. May be deterrent as well. This was judicial creativity.

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Change in direction

Various Claimants v Institute of Brothers of the Christian Schools 2013 (Christian Brothers)- 170 men alleged sexual abuse over many years at a boarding school. Referred to there by the local authority. Looked after and taught by Christian Brothers. Are the brothers employees? They were of the school. There was VL at first instance. Victims wanted brothers and headmast to be sued, worried would lose and costs. They appealed and asked for dual liability under Via Systems.

The question in the Supreme Court was whether the institute of the Brothers of the Christian Schools, an internationally incorporated association, was potentially vicariously liable for the child abuse committed by members of its community when they taught at a school in Yorkshire?

 They didnt have a contract with De La Salle, didnt pay a salary, but the association placed them at schools. Hierarchy system and had to further the organisations objectives. Element of control and had vows and probably would have been fired if they broke them. They paid De La Salle what they made.

They were found vicariously liable.

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Christian Brothers

'There is no difficulty identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:

  • i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability (deeper pockets/loss distribution) 
  • ii) the tort will have been committed as a result of the activity being taken by the employee on the behalf of the employer
  • iii) the employees activity is likely to be part of the business activity of the employer
  • iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee
  • v) the employee will, to a greater or lesser degre'e, have been under the control of the employer.

Deeper pockets and control are not that important any more. Dont need to meet all five but theyre all taken into account. 

Lord Phillips- 'I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose VL on defendants.' 

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Christian Brothers

'Where the defendant and the tortfeasor are not bound by a contract of employment but their relationship has the same incidents, that relationship can properly give rise to VL on the ground that it is 'akin to that between an employer and an employee.' 

Not that clear as has many criteria. May be crushing for charities and non profits. All work diferently so more important. Need to move with the times. See change here with fluid recognition. 

VL is founded on the responsibility of an enterprise for those it uses as helpers to carry out its activities. What weighed with the courts is that the abusers were placed by the enterprise, as part of their mission, in a position from which the tortfeasor happened to cause a harm which was a risk inherent in the activity in question. The solution adopted also opens up the possibility of dual liability on the specific facts of a case, thus endorsing the approach in Viasystems v Thermal Transfer. Big change- this is helpful with liquidated businesses. 

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Cox v MoJ

Cox v MoJ 2016- was heard on the same day as Mohamud and same judges. Woman worked in Swansea prison kitchens. She was incharge of 4 staff and 20 prisoners. Accident in 2007. Paid low wage and must be trained and rehabbed. They dont have to employ them but there is lots of benefit to it. Prisoner drops bag on rice on the woman's back and she suffers injury. She sues the MoJ for negligence. 

The issues- was the tort committed when undertaking an activity on behalf of D? Was that activity integral to D's business? In 'employing' the tortfeasor had D created a risk of a possible tort being committed? Was it fair and reasonable to impose VL on D? The aim was to provide clarity. Problems- publicly funded. Not paid minimum wage. What if she was a prisoner? Flood of claims? 

Said not typical employment situation. Not employees. Relationship akin to employment? Fair just and reasonable- they cant distribute their losses. However liability is strict- should they consider the defendants situation? There was VL here. 

Two policy considerations are particularly relevant to Cox- 1) a principal who sets in motion and profits from the activities of its employees should compensate those injured by such activities

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Cox v MoJ

and 2) as a matter of deterrence the principal should be encouraged through the imposition of VL to amend its practices so as to reduce future risks of harm. 

Yet- the courts must be particularly sensitive, in considering the imposition of liabilty on public authorities, both to the particular functions they carry out and to the onerous financial burdens attaching to such liability. 

Reed LJ- 'an important consequence of that extension is to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and the members of their workforces.' 

'It is also important not to be misled by a narrow focus on semantics: for example by words such as business, benefit and enterprise. The defendant need not be carrying on activities of a commercial nature: that is apparent from E and the Christian Brothers case but also from the long established application of vicarious liability to public authorities and hospitals... nor need the benefit which it derives from the tortfeasors activities take the form of profit. It is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests.' 

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  • The worker/volunteer. 
  • The enterprise
  • Policy
  • Your opinion? 
  • Supreme Court ruling in NA v Nottinghamshire CC. 


1) a tort must be committed

2) there must be an employee/employer relationship, if this is in doubt then the following criteria must be satisifed from Cox v MoJ. 

  • the tortfeasor must be an integral part of the business, carrying out work for its benefit, not for a business of his own or a third party
  • the risk of the wrongful act being committed by the tortfeasor must have been caused by...
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  • the defendant by assigning those activities to the person in question.

3) the tort must be committed in the course of the tortfeasors employment. The close connection test is usually applied by asking- 

  • What field of activities was entrusted to the employee by the employer? (interpret broadly)
  • Was there enough connection between the field of activities and the tortfeasors wrongful act for it to be just to impose VL on the employer? 
  • If the answer is yes, then VL is imposed.
  • Does it deter? Protect the most vulnerable? Achieve justice? Is it still on the move? Can it truly be said to be a doctrine of strict liability? Is there certainty? Is the loss distribution justification redundant? Is enterprise liability key?

Remember why are they imposing liability? Creation of risk has become more important. 

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