Vicarious Liability in Tort Law

Vicarious liability is where one person is held liable for the torts of another, even though that person did not commit the act itself. It is therefore a form of strict liability. The most common form of vicarious liability is when employers are held liable for the torts of their employees that are committed during the course of employment.
Many different theories have been advanced to justify the doctrine of vicarious liability
but the most accepted justifications are:
the ‘benefit and burden’ principle. The employer has established a business
and derives the economic benefits of commercial success: the employer ought
therefore to be liable for damage caused by the business
the employer has created a risk and should be answerable if the risk materialises
the employer is in the best position to know, or to find out, the nature and cost of
accidents associated with the business and to take insurance against these risks
the employer has responsibility for ensuring that its employees are effectively
trained to carry out their work safely
the employer is more likely to take staff training and supervision seriously
the principle of vicarious liability means that the employer is more likely to be
careful in selecting employees and to provide incentives to encourage them to
take care
the effect of the employer bearing the cost of insurance liability is to spread the
loss, as the extra cost can be passed on to the public in the form of higher prices
the ‘deep pocket’ argument, which is based on the fact that the employer is better
able to pay compensation and is also more likely to have liability insurance and this stems from the case of JGE v Portsmouth Roman.
Vicarious liability does not mean that the employer is liable instead of the employee.
The employee who committed the wrong remains liable. Vicarious liability is a form of
secondary liability. For reasons of policy, the courts have considered it desirable to give
claimants injured as the result of an employee’s tort an action against the employer as
Well.
To succeed in a claim based on vicarious liability, the claimant has to establish that:
The alleged tortfeasor was an employee.
The employee committed a tort.
The employee committed the tort in the course of employment.
One problem in particular the courts have had is in determining what constitutes the classification of an employee. This is partly due to there being so many different employment relationships. One of the early tests to determine this issue was the Control Test which asked whether the ‘Master’ had the right to control what was done and the way it was done. However, this test was seen to be inappropriate, except perhaps in cases of borrowed workers, as in Merseyside Docks & Harbour Board v Coggins and Griffiths. The courts then recognised that a single test was not enough to determine employment status so the courts developed a multiple test in Ready Mixed Concrete v Minister of Pensions.
McKenna J stated that a “contract of service” existed if the following three conditions were present:
The servant agrees that in consideration for wages or other remuneration, he will provide his own work and skills in the performance of some service for his master.
The servant agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.
The other provisions of the contract are consistent with it being a contract of service.
Furthermore, McKenna J described ‘control’ as including “the power of deciding the thing to be done in the way, the means, the time and the place”.
Pondering upon the issue of independent contractors in Barclays Bank v Various
Claimants [2018], the Court of Appeal doubted the survival of any
‘independent contractor defence’.
In subsequent case law, another test known as the Salmond Test, came to light, however, this restrictive test was largely improved after the decision of the House of Lords in the controversial case of Lister v Hesley Hall, where a warden sexually abused young boys at the home where he was employed to look after them. The House of Lords held in this case that an employer would be vicariously liable for an employee’s tort if there was ‘a close connection with the employment’.
In conclusion, the concept of vicarious liability is a very complex issue, as it is torn between trying to protect the right of the victim to gain sufficient compensation and trying to protect the employer from being overburdened by their employees.
Although it goes against the principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability seems appropriate as it does serve a useful purpose i,e it contributes to the maintenance of safety standards and it enables the victims of negligence by employees to be reasonably certain that someone will be in a position to pay them compensation.