Vicarious liability

Vicarious liability

Employers are vicariously liable for the actions of their employees and therefore any tort committed by their employees if it is committed in the course of that employee’s employment.

So the two essential points for vicarious liability are:

  1. Was the tort committed by the employee? and
  2. Was the employee acting in the course of their employment?

‘In the course of’ may be read ‘within the scope of’. Employers are only liable for the acts of their employees that are ‘authorised acts’ performed in an unauthorised way. They are not liable for acts which are not sufficiently connected with authorised acts.

In Rose v Plenty [1976] 1 All ER 97, the facts of the case were that a milkman was told by his employers not to let children help him while he was doing his rounds. Regardless, he allowed a child to help and the child was hurt while riding on his milk float, due to the negligent driving of the milkman. The Court of Appeal found the employer vicariously liable. The employee was doing his job, but in a way that the employer had told him not to. Still, he was working within the scope of his employment, because the work he was performing was for the benefit of the employer’s business.

In Lister and Others v Hesley Hall Ltd [2001] 2 All ER 769, the case concerned a warden of a school who abused boys that were resident at the school. The House of Lords found the employer vicariously liable for the warden’s actions as an employee. The Lords in this case commented that the Court should not concentrate on the nature of the actual act complained of (i.e the abuse in this case) but on the closeness of the connection between the nature of employment and the tort that has been complained of. In this case, the Lords found that the Defendant, i.e. the employer employed the warden to take care of the Claimants, i.e. the boys and the abuse happened while he was carrying out his duties of employment. The proximity of the tort complained of and the employment duties was very close, hence why the Court found the employer liable.

The same reasoning in Lister was later applied in Mattis v Pollock [2003] EWCA Civ 887 by the Court of Appeal. In this case, the Claimant was stabbed by a doorman that was employed by the Defendant to work in the Defendant’s nightclub. The Defendant did expect the doorman to carry out his duties in an ‘aggressive manner’. Where, like in this case, an employee is expected to use violence as part of carrying out their duties, the chances of a court finding a particular act of violence to be within the scope of employment is much higher.

These decisions may seem rather surprising, since you would imagine that it would never be in the contemplation of an employer that their employee should behave in such a way and indeed, in some cases, the employer has expressly forbid the employee from doing the act in question. The policy reasons for vicarious liability are as follows:

  • Those who are injured should have means of compensation. Employers generally have larger assets, and greater means with which to offset any losses (deep pocket compensation)
  • It is under the instruction of an employer by which a tort is committed; the employer can be seen to gain from the duties of their employees, and thus must bear the consequences of any wrongdoings committed by them.
  • It is a way to reduce the taking of risks by employers, and to ensure adequate precautions are taken in conducting business.

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