UNIVERSITY OF LUSAKA

Unit 14 – Vicarious Liability

 Introduction to Vicarious Liability
• Vicarious liability is where one party is held liable for the
torts of another. It arises because of a specific relationship
between the parties. ‘Vicarious’ means ‘on behalf of
another’.
• Vicarious liability can arise in other situations than
employer/employee relationships, e.g. principal/agent,
parent/child, liability of a firm for the torts of partners.
• It is most commonly based upon the employment
relationship making the employer liable for the acts of the
employee.
• Vicarious liability is not a tort itself—but a determination of
who is potentially liable—it’s a way of suing someone else
other than the tortfeasor
 Cont’d
• Vicarious liability is strict liability; there is no need to show
fault on part of defendant (employer) - employer will be
strictly liable, even in absence of fault.
• vicarious liability is a form of secondary liability;
o Primary liability: When D is held liable for his own wrong-
doing. For example, the employer themselves is at fault –
direct liability = employers’ liability.
o Secondary liability = vicarious liability, when suing
someone else other than the tortfeasor.
 Cont’d
• An employer can be sued both directly and vicariously for the
same event.
• Where vicarious liability applies, the Defendant and the
Tortfeasor are treated as joint tortfeasors, which means that
the claimant can choose to sue both or either of them; the
employer is treated as if they have committed the tort.
• In reality, the party sued is often the one in the best position
financially to meet any judgement.
 Background and Justification
• Vicarious liability is not a tort in it’s own right but a rule of
responsibility which renders the defendant liable for the torts
committed by another; it is essentially a rule of convenience.
• It does not mean that the tortfeasor is not personally liable
for his negligence, but that the claimant has a choice to sue
be the tortfeasor or his employer.
• why should the employer be sued instead of the employee?
1) ‘Deep pockets’ argument: Employer in better financial
position to pay compensation-- has deep pockets (will
most likely be insured, thus he will be able to pay).
2) Employer exercises both control and supervision over its
employees.
 Cont’d
3) An employer may be careless in selecting negligent employees
and should suffer the consequences thereof;
4) Benefit/burden theory: Benefits and burdens of employees.
Employer should have the burden if they have the benefit. The
employer gets benefit from employee’s actions, so should bear
burden if goes wrong.
5) High standards—employers will make efforts to see that
employees don’t commit torts, will encourage high standard of
care.
6) Vicarious liability encourages better training, supervision and
control of employees.
7) Loss distribution – the loss is borne by a large section as opposed
to just the tortfeasor i.e. the employer, insurance company, clients
of the insurance company who pay premiums.
Structure for a vicarious liability claim

• To establish vicarious liability against an employer, the

claimant must show all the following:
1) A tort has been committed by another (X)?
2) X is an employee of the Defendant (D) being sued.
3) The tort was committed in the course of employment
 A tort has to be committed
1. A Tort has to be committed by another (X)
• If there is no tort committed, then no vicarious liability.
• In a vast majority of cases, the tort committed is negligence.
• Torts (on syllabus) that can be committed vicariously:
o Trespass torts, Battery, Assault, False imprisonment,
Negligence, Defamation, Libel, slander.
• The claimant must therefore prove that the employee’s
conduct satisfies all the elements of the tort in question .
A tort has to be committed Cont’d
• If the employee enjoys immunity from lawsuits by merit of
their personal status, their employer will not receive the same
protection.
• This principle is best understood by reference to the case of
Broom v Morgan [1953] 1 QB 597.: The claimant was
employed alongside her husband to run a pub.
o She was injured in an act of negligence by her husband.
o At the time, husbands and wives could not sue each other in
tort and so the defendant denied vicarious liability (since the
husband could not be sued by his wife, primary liability did not
exist, and so the employer argued secondary liability could not
exist.)
o The courts rejected this argument, holding that the spousal
immunity was from being sued, rather than being held
responsible for a tort. Since the husband was not the one being
sued, the immunity did not apply.
 The employer/employee relationship
must exist
2. X is an employee of the defendant—the employment
relationship
o The courts draw a distinction between employment (contract of service)
and an independent contractor (contract for services).
o Vicarious liability will not generally arise in a contract for services (not
responsible for actions of independent contractors).
o For example, the driver you hire is your servant. You can give me advice as
to how to drive the car and give him directions. While the taxi driver in this
scenario will be the independent contractor. Thus, you can only tell the
direction to the taxi driver but you cannot order him. One will therefore
not be liable for the torts of the independent contractor (Taxi driver).
• A number of factors can be identified as important to the courts
in distinguishing between contracts of employment and contracts
for services.
• It is fair to state that each case is decided on a fact by fact basis
 Who is an employee?
Three main tests are used to answer the question:
1. control test;
2. integration test;
3. economic reality/multiple factors test.
1) Control test - In the past, the control test was the primary
indicator used by the courts (original test).
o The Control Test asks who, exactly, is in control of the individual’s
work – who dictates who;
o Employees tend to have the nature of their task dictated specifically by
their employer (independent contractors tend to have more personal
control).
o The source of the control test can be found in Yewen v Noakes [1880]
6 QBD 530 - The courts held that the occupier was not an employee,
since he was not ‘a person who is subject to the command of his
master as to the manner in which he shall do his work.”
 Who is an employee Cont’d?
• CAUTION: Today, there are many employment situations
which don’t come under the Yewen definition, particularly
where the employee is acting with a high level of skill.
• A hospital trust will employ many surgeons and doctors, but is
hardly well placed to tell someone how to carry out brain
surgery or deliver a baby.
• in modern case law this test lost favour as the sole
determinant of an employer/employee relationship -
Market Investigations v Minister of Social Security [1969] 2
QB 173 -
– Cook J : ‘…control will no doubt always be considered although
it can no longer be regarded as the sole determining factor.’
The reason for that is because the courts were recognising a
lot of situations where the employer doesn’t control the
employees work, some employees are specialist in their fields,
and employers don’t tell them how to do their job.
• Read - Cassidy v Ministry of Health (1951) 2 K.B 343, CA
 Who is an employee Cont’d?
2. Integration/Organisation Test
o Distinguishes between people who sign contracts of
service and those who contract to provide services.
o Employees tend to do work which is integral to the
business’s operations, whilst independent contractors tend
to do work which is ancillary to the main functions of the
business.
o See: Stevenson, Jordan & Harrison Ltd v MacDonald &
Evans [1952] 1 TLR 101: 16.
o “One feature which seems to run through the instances is
that, under a contract of service, a man is employed as
part of the business; whereas under a contract for
services, his work, although done for the business, is not
integrated into it, but is only accessory to it.” - Lord
Denning, at 111. Stevenson, Jordan & Harrison Ltd v
MacDonald & Evans
 Who is an employee Cont’d?
3. ’Economic reality’ test (more modern, practical approach)
• Sometimes referred to as the ‘multiple test’ or the ‘pragmatic
test’.
• It involves examining the characteristics of the subject’s work
arrangements against a checklist of signs of conventional
employment.
• The test appears in Ready Mixed Concrete Ltd v Minister of
Pensions. [1968] 2 QB 497 – in casu, the claimant hired a
number of drivers to deliver concrete, paying the drivers a
fixed rate per mile. These drivers were named in their
contracts as independent contractors.
o The drivers used vehicles which they had purchased from the claimant
in order to do this. The vehicles had to be painted in the claimant’s
company colours, had to bear the company’s logo, and was obliged to
present their accounts in a special manner dictated by the claimant.
o The drivers also had to wear the company’s uniform. The drivers were
responsible for maintaining the vehicles and had flexible working
arrangements – they could even, if they so wished, employ a
competent driver themselves to carry out the work on their behalf.
o The question arose as to whether the drivers were employees of the
claimant or not. The court ruled that the drivers were not employees.
 Who is an employee Cont’d?
• In Ready Mixed Concrete Ltd v Minister Of Pensions, the
Court identified three criteria which had to be met before
employee status was granted:
1. the individual must provide work or skill for the employer
in return for payment or other remuneration.
[Link] individual must have agreed (either expressly or
impliedly) that they will work under the control of the
employer.
[Link] other circumstances of the individual’s working
arrangements must be consistent with those of an
employee - Look at working hours, tax, payment,
equipment, independence)
 Who is an employee Cont’d?
• The court also mentioned risk as a method of determining
employment status.
• “He who owns the assets and bears the risk is unlikely to be
acting as an agent or a servant. If the man performing the
service must provide the means of performance at his own
expense and accept payment by results, he will own the
assets, bear the risk, and be to that extent unlike a servant.”
(Read ‘servant’ as ‘employee’.) -MacKenna J at 521.
• Also read Market Investigations Ltd v Minister of Social
Security [1969] 2 QB 173
 Who is an employee Cont’d?
Other Considerations include the following:
• Mutuality of Obligations - On the requirement of mutuality,
see: O’Kelly v Trusthouse Forte [1984] 1 QB 90 -
o usually in an employment relationship, the worker had to be offered
work and have an obligation to accept it. There must be an obligation
to provide work and an obligation to accept it.
• Labelling (how parties describe their relationship) - Ferguson v
John Dawson(1976) WLR 1213 - HELD: you can’t just look at the
labelling, labelling is not conclusive, just a factor.
o It might be in interests of employer to make it look like you are self-
employed. Court said we’ll look at the label, but if that’s inconsistent
with the other factors, we’ll ignore it.
o The court was basically saying that it will not be governed by the
wording of the contract, but will examine the substance of the
contract to determine if one is an employee or not.
o See also, Massey v Crown Life (1978) 1 WLR 676 CA
 Who is an employee Cont’d?
• One particular problem which arises is the status of
employees who are hired out to work for a different company.
• Do such employees remain the employees of their general
employer or do they become the employees of the hiring
company?
• This will determine who is liable for the employee’s torts
• See – Mersey Docks and Harbour Board v Coggins and
Griffith (Liverpool) Ltd (1947) A.C 1 – Lord Porter indicated
that the courts should consider a number of factors including:
o who pays the employee’s wages, who has the power of dismissal,
how long the alternative work lasts and the complexity of the
machinery used.
o The more complex the machinery, the more unlikely that the
employee will be deemed to work for the company hiring his or her
services.
 The Tort was committed in the Course of
Employment
[Link] acts must be in the course of employment - An
employer is not responsible for all of the acts one of their
employees carries out. It would be absurd if an employer was
held liable for a car crash one of their employees caused on their
day off.
o The tortious act must occur in the course of employment; an
employee is acting in the course of employment if his
conduct is authorised by the employer, or it is considered to
be an unauthorised means of performing the job for which he
is employed (acts closely connected to the job for which he is
employed) – Lister v Hesley Hall Ltd (2002) 1 AC 215
o An authorised act could for instance be in a case where a
waste disposal company which orders an employee to dump
toxic waste in a public waterway will have committed a tort.
 The Tort was committed in the Course of
Employment Cont’d
• Express authorisation is not an ever-present feature of
many employment situations -the key thing to ascertain
is then whether an employee has been given implied
authority to act due to the scope of their employment.
• Implied authority can be seen in Poland v Parr & Sons
[1927] 1 KB 236.
o The defendant’s employee believed that some children were
stealing the defendant company’s property. He struck one of the
children, seriously injuring him. It was held that although this
was an unreasonable act, it was still done under his employer’s
implied authority. The court noted that in general employees
have an implied authority, in an emergency, to protect their
employer’s property (although the bench also noted that there
was a limit if, for example, the employee had shot at the boy,
this would be beyond implied authority.) The claim, therefore,
succeeded.
 Cont’d
• Further Reading:
a) Industrial Gases Limited V Waraf Transport Limited And
Mussah Mogeehaid (1997) S.J. 6 (S.C.)
b) Giogio Fraschini And Motor Parts Industries (Copperbelt)
v Attorney-general (1984) Z.R. 29 (S.C.)
c) Acropolis Bakery Ltd v ZCCM Ltd (S.C.Z. Judgment No. 30
of 1985) [1985] ZMSC 23 (9 December 1985);
d) GDC Hauliers (Z) Limited v Trans-Carriers Limited (SCZ
Judgment No. 7 of 2001) [2001] ZMSC 17
• The Course of employment will depend on the facts of each
particular case. The cases below are an illustration of the
approach adopted by the courts.
 The Tort was committed in the Course of
Employment Cont’d
• Authorised acts in an unauthorised manner - here, an
employee is undertaking an authorised act, but does so
in an unauthorised manner.
• See - Century Insurance v NI Road Transport Board
[1942] AC 509:
o A driver was employed by the defendant company to
deliver petrol. Part of this task involved transferring the
petrol from his lorry to a storage tank at the destination.
Whilst doing this, the employee lit a cigarette, threw the
match to the ground, and caused an explosion.
o The defendant was held vicariously liable for this
conduct. Although the employee’s conduct was clearly
careless, he was nonetheless in the process of carrying
out an authorised act – delivering petrol.
 The Tort was committed in the Course of
Employment Cont’d
• A distinction can be made between situations in which an
employee acts within their employment responsibilities (as in
Century Insurance), and when they act outside of them (albeit
with the intention of aiding their employer.)
• The above distinction can be found in Beard v London
Omnibus Co [1900] 2 QB 530:
o A bus conductor (i.e. not a driver) was at the bus depot, and
realised that a bus was urgently needed for its next journey. He
could not find the driver, and so decided to drive the bus around
to the front of the depot, so that it was ready to go. In doing so,
he injured a mechanic working in the depot. A claim was made
against the employer bus company. The courts rejected
vicarious liability – the conductor was acting outside of the
course of his employment.
o Distinguish the above case Limpus v London General Omnibus
Co (1862) 158 ER 993
 The Tort was committed in the Course of
Employment Cont’d
• Smith v Stages (1989) AC 928 – generally employees driving
to and from work are not acting within the course of
employment unless special circumstances exist, i.e. the
employee is required under the employment contract to use
the employer’s transport to work or if the employees work
requires travel – a sales rep.
• But, a deviation from a journey taken in the course of
employment will, unless incidental, take the employee out
of the course of employment for the time being - Storey v
Ashton (1869) L.R 4 QB 476
• Frolic of your own
 The Tort was committed in the Course of
Employment Cont’d
• Explicitly Prohibited Acts -Courts will usually deny vicarious
liability when an employer has expressly prohibited an
employee from taking a particular action.
• However, it is important to note that whilst a prohibition
against taking a particular action will be sufficient to break
the link between the employee’s conduct and the
employer, the same cannot be said when an employer has
merely prohibited an employee from taking an authorised
action in an unauthorised way – See Manfred Kabanda
And Kajeema Construction V Joseph Kasanga (1990 -
1992) Z.R. 145 (S.C.)
• If the prohibited conduct benefits the employer in some
way the courts are willing to find the employer
vicariously liable – Limpus case
 The Tort was committed in the Course of
Employment Cont’d
• Difficult cases are where the driver of a company vehicle
gives a lift to an unauthorised passenger, is the employer
vicariously liable?
• In Twine v Bean’s Express (1946) 62 TLR 458 -
o Held: as regards the injuries to the passenger, the
negligence was outside the course of employment. Van
driver was told not to take passengers, he took a hitch
hiker, when driving negligently, he injured the hitch hiker.
o There is no vicarious liability here because the driver was
doing something he was told not to, he took himself
outside the course of employment.
 The Tort was committed in the Course of
Employment Cont’d
• In Rose v Plenty [1976] 1 WLR 141 –
o Driver of a milk cart whose employer told him not to take
passengers, but he allows a young boy to come along with
him on the milk rounds. the boy is injured because of the
drivers negligence.
o Despite this prohibition, this was within the course of
employment, it didn’t prevent vicarious liability.
o The employee’s negligence was within the course
of employment. See particularly Lord Denning’s
explanation of how this case is to be distinguished from
other similar cases such as Twine – In rose v plenty, the
child was providing benefit to the employers business so
doesn’t take him outside the employment course.
 The Tort was committed in the Course of
Employment Cont’d
• Intentional Torts - For intentional torts, the general rule
was traditionally understood as being that intentional
wrongs or criminal acts usually take the employee outside the
course of his employment.
• The current test for whether an intentional tort falls within the
course of employment comes from Lister v Hesley Hall which
asks whether there is a ‘sufficient connection’ between the
employment and the tort that it would be ‘just, fair and
reasonable’ to hold the employers vicariously liable.
o The Lister test has changed the scope of vicarious liability here so that
this intentional tort is more likely to be ‘within the course of
employment’.
o See the reasoning of the court in :Heasmans v Clarity Cleaning [1987]
ICR 949- decided before Lister.
 The Tort was committed in the Course of
Employment Cont’d
• Can acts of assault/battery by an employee fall within the
course of employment?
• For the old position see: Poland v Parr & Sons [1927] 1
KB 236- an act of violence, though excessive, in the course of
protecting the employer’s interests did not take the worker
outside the course of employment.
• if it was protecting the employer’s reputation or
property then they are still within the course of
employment
• Warren v Henleys [1948] 2 All ER 935 - acts of personal
vengeance fell outside the course of employment and did not
attract vicarious liability. There was no vicarious liability in
this case.
 The Tort was committed in the Course of Employment
Cont’d
• But compare the approach in Warren v Henleys with the
modern cases of - Mattis v Pollock [2003] 1 WLR 2158 - The
courts still said that employer was viciously liable,
because he was protecting the employer by keeping the
man outside the club.
o ‘An independent act of self-indulgence or self-gratification’
could be within the course of employment(therefore an assault
arising out of resentment or spite did not necessarily fall outside
the course of employment).
o Does sexual assault fall within the course of employment? - ST
v North Yorkshire County Council [1999] IRLR 98 - applying
Poland v Parr the answer was ‘no.’ - When a teacher abused
a pupil during a school trip to Spain, CA said the
employer could not be vicariously liable, this was in no way
an authorised mode of an authorised act.
o Lister v Hesley - overturned the ST case, it illustrates vicarious
liability for intentional wrongdoing.