Vicarious Liability

October 11, 2016

by Christian Taylor

Deriving from the Latin vicarius, meaning substituted, the doctrine of vicarious liability “has not grown from any very clear, logical or legal principle but from social convenience and rough justice”. [1] Shortly put it is the principle whereby an employer is in certain circumstances liable for the tortious actions of his employees, particularly where it cannot be proven that the system of work itself is unsafe.

Difficult questions arise in circumstances where a defendant is sued by an injured Claimant in respect of torts committed by someone who is not an employee of that defendant. As a general rule an employer is not liable for the negligence of an independent contractor. However there are various authorities providing exceptions to this general rule with one particular category of exceptions relating to construction work, where labourers operating under the direct control of a principal contractor, not their employer, committed torts which emanated from the instructions of that principal contractor. The key test in these cases is the nature and degree of the control exercised by the principal contractor as compared with the employer. Another line of exceptions involved cases of historic child abuse, notably the Christian Brothers case [2]. In that case the Supreme Court found that the relationship between the teaching brothers and the Institute was sufficiently akin to that of employer and employees to satisfy the question of whether the relationship between defendant and tortfeasor was capable of giving rise to vicarious liability. Lord Phillips judgment in that case was intended to bring greater clarity about the general approach to be adopted in deciding whether a relationship other than one of employment can give rise to vicarious liability.

Lord Phillips emphasised five key criteria that made imposition of liability on the employer fair, just and reasonable:

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:

ii. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer:

iii. The employee’s 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 degree, have been under the control of the employer.

He concluded that even where there was no contract of employment between defendant and tortfeasor but their relationship “has the same incidents, that relationship can properly give rise to vicariously liability on the ground that it is ‘akin to that between an employer and an employee’.”

The Supreme Court was required to consider this judgment in the recent case of Cox v Ministry v Justice. [3] The Claimant, Mrs Cox, was a catering manager at a prison. Prisons were required by statute to ensure that prisoners did useful work. On 10th September 2007 Mrs Cox was working in the kitchen when some kitchen supplies were delivered to the ground floor of the prison and four prisoners were instructed to take them upstairs to the kitchen stores. During the course of this transfer a sack of rice was dropped onto the back of Mrs Cox, who was bent over at the time, causing her injury. The question was whether in the absence of a contract of employment between the prison and the prisoner, the relationship was of that type to enable Mrs Cox to recover damages against the prison on account of a prisoner’s negligence.

In dismissing the Ministry of Justice’s appeal the Supreme Court held that the prison was vicariously liable for the negligence of the prisoner. In arriving at that decision Lord Reed (with whose judgment all other members of the Court agreed) emphasised the importance of factors (ii), (iii) and (iv) above [4] as well as identifying that Lord Phillips analysis had developed a “modern theory of vicarious liability” [5] which was not restricted to a specific category of case, but was that was intended to “provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment”. [6]

In committing a tort as part of a course of conduct that was designed to further the interests of the defendant (and note that these interests did not need to take the form of a profit), the tortfeasor must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. Hence the defendant must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort.

The Supreme Court appears to have had an eye on many of the modern workplace arrangements in which various employers have an eye on avoiding liability by ensuring that people who work under their control are not in fact employed by them. However it was made clear that “defendants cannot avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort” [7].

This application and clarification by the Supreme Court of Lord Phillips “doctrine” in the Christian Brothers case will be of great assistance to Claimants in circumventing the form of their employment status (including the lack of any such status), in order to sue on the basis of the substance of the employment relationship. The burden of the tortfeasor’s labour ultimately falling upon the shoulders of those who derive the benefit of that labour. A refreshingly just conclusion in the present climate.

[1] Lord Pearce in ICI v Shatwell [1965] AC 656 at 685

[2] [2012] UKSC 56

[3] [2016] UKSC 10

[4] [paras 20-23]

[5] [para 24]

[6] [Para 29]

[7] [Para 31]