VICARIOUS LIABILITY
~ Employee vs Self-Employed ~
1. Elements of Liability
Element 1: Employee / Employment-Like Relationship
Tortfeasor must be an employee (contract of service) or in a relationship “akin to employment.” Independent contractors are usually excluded. Factors considered: scope of duty, payment structure, personal obligation to perform work, integration into the employer’s business, control, provision of equipment, and reliance on employer for income.
Doubtful cases → Christian Brothers v Catholic Child Welfare Society [2012] criteria:
Employer can compensate victim.
Act done on employer’s behalf.
Act closely linked to employer’s business.
Employer’s decision to engage tortfeasor created the risk.
Employer exercised some control over tortfeasor.
Examples:
WHPT Housing Association Ltd v Secretary of State for Social Services [1981] – distinguishing employee vs independent contractor.
Stephenson Jordan & Harrison Ltd v MacDonald & Evans [1951] – work integrated into business = employee.
Modern “akin to employment”:
Armes v Nottinghamshire County Council [2017] – local authority liable for abuse by foster parents.
Cox v Ministry of Justice [2016] – prisoner working in prison kitchen.
E v English Province of Our Lady of Charity [2012] – church liable for priest abuse.
Viasystems Ltd v Thermal Transfer Ltd [2006] – dual liability for “borrowed” employee.
Element 2: Connection Between Tort & Employment (Course of Employment / Close Connection)
Salmond Test: tort is either an authorised act OR an unauthorised mode of an authorised act. Poland v John Parr & Sons Ltd [1927] – assault protecting employer’s property, employer liable. Heasmans v Clarity Cleaning Co Ltd [1987] – personal phone calls, employer not liable (“frolic of own”).
Close Connection Test: (introduced in Lister v Hesley Hall Ltd [2002]) – intentional torts closely linked to employee duties can impose liability.
Mohamud v WM Morrison Supermarkets plc [2016] – assault at work sufficiently connected.
Mattis v Pollock [2003] – nightclub bouncer’s assault linked to duties.
2. Defences / Limits
Independent contractor = generally no liability (Barclays Bank plc v Various Claimants [2020]).
Frolic of own = employee acting entirely outside employment (Heasmans v Clarity Cleaning Co Ltd [1987]).
Statutory or contractual limitation may apply (rare, context-specific).
3. Remedies
Damages – compensate victim for tort caused.
Injunctions – restrain ongoing or recurrent torts (less common).
Employers may be insured, but liability is generally strict if elements are met.
