the Doctrine of Vicarious Liability Flashcards
Sexual Abuse Cases:
Example 1: ST v North Yorkshire County Council (1998)
A disabled boy was sexually abused by a teacher who was supposed to be caring for him. Even though the abuse was unauthorized, the employer (the school) was held liable because the teacher was entrusted with the care and responsibility of the boy.
Example 2: Bazley v Curry (1999)
A care home worker was a paedophile. The court found that the employer should be held liable because the risk of abuse was connected to the nature of the care home work (close and intimate relationships between caregivers and children).
Curry worked in a residential care home for vulnerable children.
His duties included intimate, unsupervised, trust-based care—like bathing, putting children to bed, comforting them.
His role gave him regular, private access to children.
He built close emotional bonds with them as part of his job.
The children trusted him because of his role, and the employer put him in that powerful position.
Example 3: Lister v Hesley Hall Ltd (2001)
A warden at a care home sexually abused children. The employer was held liable because the abuse happened while the warden was doing his job (caregiving), and it was closely connected to the responsibilities of his employment.
Close Connection Between Job and Misconduct:
The court used the
close connection test”
It looked at the relationship between Lister’s role as a warden and his abusive actions. Even though the abuse was a criminal act, the court found a close connection between Lister’s job and the harm he caused.
Lister’s job was to look after the children in a private, trusted role, giving him access to vulnerable children in an unsupervised setting.
The abuse occurred during his work hours, in a setting where he was supposed to be caring for the children.
Employer’s Responsibility:
The court decided that the school (employer) was responsible because the risk of harm was created by the nature of Lister’s employment. His job involved a close relationship with vulnerable children, and the abuse happened because of this very trust and authority that the job gave him.
Vicarious Liability:
It’s when an employer is held responsible for the wrongdoings of their employees, even if the employer didn’t do anything wrong.
It’s not based on the employer’s own fault – it’s because of the employee’s actions during their work.
Key points:
It doesn’t apply to independent contractors.
It applies to employees who act within the course of their employment.
Employers are responsible for their employees’ actions, even if unauthorized (if they’re still related to the employee’s job).
the Traditional Test (Salmond Test):
How to decide if an act is covered?
Authorized acts:
The employee was doing something their employer asked them to do.
Unauthorized acts connected to authorized acts:
Even if the employee was not allowed to do something, it might still be connected to their job, and the employer can be liable.
Example: Rose v Plenty (1976)
A boy helping deliver milk was injured while doing something unauthorized (not allowed to help)
The employer prohibited this, but because the boy was helping for the employer’s business purpose the employer was still responsible. Even though the act was unauthorized, it was still connected to the job.
🔹 What is the Salmond Test?
The Salmond test, named after legal scholar Sir John Salmond, states:
> An employer is vicariously liable for a tort committed by an employee if the tort is:
- A wrongful act authorized by the employer, or
- A wrongful and unauthorized mode of doing some act authorized by the employer.
🔹 In Simpler Terms:
- If the employee is doing what they were hired to do, even if done improperly or negligently, the employer can be held liable.
- But if the employee acts completely outside the scope of their employment (a “frolic of their own”), the employer is not liable.
🔹 Example:
- A delivery driver negligently crashes while delivering a package → employer may be liable.
- Same driver takes a detour to run a personal errand and crashes → likely no employer liability.
🔹 Modern Update:
The Salmond test has been refined/ evolved over time. Notably:
- In Lister v Hesley Hall Ltd [2001], courts adopted a “close connection” test, which asks whether the employee’s tort is closely connected to their employment duties.
courts look at:
1. close relationship
2. risks created by job nature ( eg lister and hesley hall)
3. make the employer pay compensation to victim so they get justice. ( court has emphasised fairness and compensation to victims)
Assault Cases: When is an assault in the course of employment?
Example 1: Daniels v Whetstone Entertainments (1962)
A steward at a dance hall was employed to keep order but later assaulted a customer outside the hall.
The first assault (inside the hall) was in the course of his work, but the second assault (outside) was personal, so the employer wasn’t liable.
doorman at a nightclub used excessive force to kick Daniel ( a costumer) outside of a club. the eompluer was held liable.
the court used the close connection test.
it was not a part of the doorman’s job to use force to kick costumes out. so the club was held liable.
Example 2: McIntyre v Lewis (1991)
Two police officers beat someone while on duty, and the state was held responsible for assault, false imprisonment, and malicious prosecution because everything flowed from the original assault.
Key Tests for Sexual Abuse:
Bazley-Lister Approach:
When deciding if the employer is responsible for an
employee’s actions, look at:
Opportunity to abuse power:
Was the employee in a position to abuse their power because of their job?
How it relates to the job:
Did the wrongful act happen while the employee was doing their job?
Vulnerability of the victim:
Were the victims in a vulnerable position because of the employee’s role?
- policy behind the vicarious liability
The main idea behind VL is that it’s fair, just, and reasonable for the employer to take responsibility for the actions of their employees. This is because:
Employers usually have the resources to compensate victims, and often they can insure against risks.
Employers have money
They can afford to pay victims (employees often can’t).
They’re in control
They hire, train, and supervise their staff — so they should take some blame if something goes wrong.
They benefit from the work
If they make money from employees’ work, they should also take the risks that come with it.
To protect victims
The law wants to make sure innocent people can get compensation.
To make employers careful
It encourages companies to train and watch their workers properly.
- “Akin to Employment”
Sometimes, someone isn’t technically an employee but has a relationship with an employer that is close enough to make the employer liable for their actions. This is called a relationship that’s “akin to employment.”
Example 1: In Various Claimants v Institute, even though the teaching brothers weren’t strictly employees (they took vows, not contracts), the court found that their relationship with the Institute was close enough to be considered as “akin to employment.” The brothers taught at the Institute, and it was in the Institute’s interest that they did so. The court found this meant the Institute could be held responsible for any harm caused by the brothers.
Example 2: In Cox v Ministry of Justice, a prisoner working in a prison kitchen was considered “akin to employment” because the prison set up the work, directed the prisoner, and had the risk of injury from the work. Even though the prisoner wasn’t technically employed, the prison was responsible for what happened.
Cox was the canteen manager in a prison. She worked for the Ministry of Justice.
The canteen was run by volunteers, and one of the volunteers (a prisoner) was working for Cox at the time.
The prisoner deliberately injured Cox by dropping a heavy bag of rice on her, causing serious injury.
Cox sued the Ministry of Justice, claiming they were vicariously liable for the actions of the prisoner (the volunteer) who caused her injury.
the court found the prison liable.
even though the prisoner wasn’t an employee, there was still some type of connection between him and his action.
- Recent Cases on Vicarious Liability
Armes v Nottinghamshire County Council: Here, foster parents were accused of abusing children, and the question was whether the local council could be held liable for their actions. Even though foster parents were not under direct control like employees, the court decided that the council had enough responsibility in placing the children in their care that the council could be held responsible for what happened.
The claimant, Armes, suffered sexual abuse, physical and emotional abuse from her foster parents. she wanted to hold the Nottinghamshire County council accountable because of these 2 grounds:
- Non-delegable duty of care: she said that the council had a responsibility to keep her safe but failed.
- Vicarious liability: claiming the council should be held responsible for the way her foster parents treated her. A duty cannot be transferred to someone else.
Courts finding:
1. The court said that the Nottinghamshire local authority was not responsible just because they put her in a foster care.
2. The court said that authority could be held vicariously liable they, chose and supervised the parents. the abuse happened during the placement, and the council benefited from the care.
Mohamed v Morrisons: A Morrisons employee assaulted a customer outside his duties (he wasn’t working). However, the court found that his actions were connected to his job because it involved the business of Morrisons (the employee was trying to stop a customer from entering the store). Morrisons was held responsible.
Mr. Mohamud (a customer) went into a Morrisons petrol station.
He asked a staff member, Mr. Khan (who worked behind the counter), if he could print something from a USB stick.
Mr. Khan rudely refused, followed him outside, and then physically attacked him in the car park, even after Mr. Mohamud asked him to leave him alone.
Yes, Morrison’s was vicariously liable, because:
Mr. Khan’s job involved interacting with customers.
He was hired to serve the public — so the incident started during his employment duties.
He abused his position of power.
Even though the assault was extreme, he acted while purporting to do his job (“Get off the premises”, etc).
The court said it looked like he was still trying to assert authority as an employee, not just acting on a personal frolic.
There was a “close connection” between the job and the assault.
The assault happened immediately after the interaction, and in the same location (outside the store).
The court said it was a “seamless episode”, not a clear break from his duties.
- Important Points from Cases
Barclays Bank v Various Claimants: Even though the doctor was not a direct employee, the court said Barclays could still be liable for his actions because he was acting on their behalf in a way similar to an employee.
WM Morrison Supermarkets v Various Claimants: A Morrisons employee leaked sensitive data of thousands of employees. Even though the employee did this on his own, the court said Morrisons could be vicariously liable because the employee was working in the “field of activity” (he was using company resources in his job).
- Test for Vicarious Liability
If the actions were in line with the job, then the employer can be held liable.
If the actions were outside the job (like personal revenge), it’s harder for the employer to be liable.
Factors considered:
Whether the employer could be expected to compensate the victim (because they have the resources).
Whether the employee was doing the work on behalf of the employer.
Whether the employee’s action was part of the employer’s business
Two-Part Test for Vicarious Liability:
- Relationship Test
Is the relationship between the wrongdoer and the defendant “akin to employment”?
Not just employees — can include people like volunteers or foster parents if:
The organisation controls them,
They are integrated into its work,
The organisation benefits from what they do. - Close Connection Test
Was the wrongful act closely connected to what the person was employed (or engaged) to do?
If yes → the employer may be liable, even if the act was wrongful (like an assault), as long as it was linked to their role.
Morrison’s Case (UKSC)
Main Idea:
The employee leaked confidential information online.
Was the company (Morrisons) responsible for the employee’s actions?
The court said no. The employee was acting for personal reasons, not for the employer’s benefit. The leak wasn’t part of their job, even though the employee had access to the data. So, no vicarious liability.
Key Points:
The employee’s act was too far removed from their job duties.
The employee acted out of personal motives (revenge), not in the interest of the employer.
Trustees of the Barry Congregation Case (UKSC)
Main Idea:
A religious leader (Mark Sewell) raped a woman, and she sued the religious organization (Jehovah’s Witnesses).
Can the religious group be held responsible for his actions?
The court said no. There was no close connection between his duties as an elder and the rape, which happened off-duty, in a personal context.
Key Points:
Akin to employment: The court looked at whether Sewell’s role was similar to an employee’s. His role as an elder didn’t make him an employee of the religious group.
Close connection test: The court said the rape didn’t relate to his duties within the religious group, so the group wasn’t responsible.
Hickey v McGowan (Ireland)
Main Idea:
A teacher who was part of a religious order (Marist Order) sexually abused a student. The victim sued the religious group (an unincorporated body).
Can the group be held responsible?
The court said yes. Even though the teacher wasn’t an employee in a traditional sense, the group was held liable because there was a close connection between the abuse and the religious group’s role in his life.
Key Points:
Akin to employment: The religious order was closely integrated into the teacher’s life, making the group responsible for his actions.
Joint and several liability: The religious order could be held responsible, even if it wasn’t a formal employer.
Morrissey v HSE (Ireland)
Main Idea:
The HSE outsourced cervical cancer screenings, and the laboratory made errors. The patient sued HSE for negligence and vicarious liability.
The court said yes. Even though HSE didn’t directly perform the work, it had a duty of care to ensure the work was done properly, and thus, was responsible.
Key Points:
The HSE assumed responsibility for the task, so even though it outsourced it, it still had to ensure the work was done carefully.
This is an example of a non-delegable duty—where certain duties can’t be transferred to another party.
Woodland v Essex (UKSC)
Main Idea:
A student got injured during swimming lessons at a pool run by a local authority, which had outsourced the lessons to a private company. The student sued the local authority for negligence.
The court said the local authority was still responsible. It had a non-delegable duty to ensure the student’s safety, even though the lessons were outsourced.
Key Points:
A non-delegable duty means that some responsibilities can’t be passed to a third party. The authority was responsible for the student’s safety.
If someone is vulnerable, like a student, the organization responsible for their care must ensure safety, even if the actual service is outsourced.
Summary of Tests for Vicarious Liability
Akin to Employment Test:
The court looks at whether the person’s role is similar to an employee (even if they’re technically not an employee).
Factors to consider: control, payment, relationship with the organization, and the nature of the work.
Close Connection Test: The court asks whether the wrongful act is closely connected to the person’s duties or job.
If the act was done for personal reasons (e.g., revenge), it’s less likely the employer or organization will be held liable.
key principles.
Enterprise Liability:
This is the idea that an organization (like a company or religious group) should take responsibility for harms committed by people working for or with them, especially when those people are performing tasks related to the organization’s business.
Non-Delegable Duties: Some duties, like ensuring safety, cannot be delegated to someone else. The organization still has to make sure the duty is carried out properly.
the big picture.
The law is changing as society changes. The courts are looking at whether it is fair for organizations to be responsible for people’s actions.
While courts do look at policy and fairness, they also focus on principled tests based on facts and established legal principles.
