RECENT ESSAY QUESTIONS ON VICARIOUS LIABILTY:

1- ‘In recent years, the Supreme Court has provided clear guidance to the courts below
on the application of the tests for vicarious liability.’ Discuss.

2- Explain the conditions necessary for vicarious liability and discuss why recent
Supreme Court decisions may have created uncertainty in the application of the
“course of employment” test.

3- Outline the conditions necessary for vicarious liability to be imposed and review
recent decisions in which the ‘course of employment’ test was considered by the
Supreme Court.(EXAM REPORT)

4- Outline the policy justifications for vicarious liability and review recent decisions in
which the Supreme Court aimed to clarify the approach to the ‘employment
relationship’.(EXAM REPORT)

5- According to Giliker (2021) the expansion of the doctrine of vicarious liability: “has,
perhaps unsurprisingly, brought uncertainty, as litigants test its boundaries”
Explain the recent cases in which the Supreme Court has expanded the doctrine of
vicarious liability and illustrate its attempts to address this uncertainty.

6- Describe the expansion of the doctrine of vicarious liability in recent years, analysing
the policy behind the expansion and the Supreme Court’s attempts to constrain this
expansion.

7- ‘In the last twenty years, vicarious liability in tort has undergone a transformation.’
(Giliker, P. (2021)) Review the recent Supreme Court decisions which have led to the
expansion of vicarious liability and explain its attempts to stem the flow of cases.
(EXAM REPORT)

8- ‘The Supreme Court has described vicarious liability as a doctrine “on the move”
which has “not yet come to a stop”.’ Explain this statement and illustrate with case
law how the Supreme Court has responded to criticisms that the doctrine was being
applied too generously. (EXAM REPORT).

1. ‘In recent years, the Supreme Court has provided

clear guidance to the courts below on the application of
the tests for vicarious liability.’ Discuss.
Introduction

 Define vicarious liability and its significance in tort law.

 Outline the two-stage test:
o Employment relationship
o Course of employment
 Introduce the idea that the Supreme Court has clarified these tests in recent rulings.
Main Body

1. Clarification of the Employment Relationship Test

o Barclays Bank v Various Claimants (2020) – distinction between employees
and independent contractors.
o Cox v Ministry of Justice (2016) – expanding vicarious liability beyond strict
employment.

2. Clarification of the Course of Employment Test

o Mohamud v W Morrison Supermarkets (2016) – close connection test
refined.
o W Morrison Supermarkets v Various Claimants (2020) – limiting
expansion of employer liability.

3. Policy Justifications Behind These Decisions

o Balancing fairness to victims and business interests.
o Preventing indiscriminate expansion of employer liability.

Conclusion

 The Supreme Court has refined the two-stage test, reducing uncertainty.
 The doctrine remains dynamic, and future cases may further clarify the tests.

2. Explain the conditions necessary for vicarious liability

and discuss why recent Supreme Court decisions may
have created uncertainty in the application of the
“course of employment” test.
Introduction

 Define vicarious liability and explain its two-stage test.

 Introduce the issue of uncertainty in the "course of employment" test.

Main Body

1. Conditions for Vicarious Liability

o Employment relationship (Cox v Ministry of Justice (2016), Barclays Bank
(2020)).
o Course of employment (Lister v Hesley Hall (2001)).

2. Recent Decisions Creating Uncertainty

o Mohamud v W Morrison (2016) – expanded scope, making it easier to hold
employers liable.
o W Morrison Supermarkets (2020) – restricted liability, causing
inconsistency in approach.
 3. Impact of Uncertainty
o Employers struggle to predict liability.
o Courts have conflicting precedents on how to apply the test.

Conclusion

 Supreme Court rulings clarify but also complicate the test.

 Further judicial guidance is needed for greater consistency.

3. Outline the conditions necessary for vicarious liability

to be imposed and review recent decisions in which the
‘course of employment’ test was considered by the
Supreme Court.
Introduction

 Define vicarious liability and introduce the course of employment test.

 Emphasize recent Supreme Court decisions on this issue.

Main Body

1. Conditions for Vicarious Liability

o Employment relationship (Barclays Bank (2020)).
o Tort committed in the course of employment (Lister v Hesley Hall (2001)).

2. Recent Supreme Court Decisions on Course of Employment

o Mohamud v W Morrison (2016) – extended employer liability.
o W Morrison Supermarkets (2020) – narrowed liability in data breach cases.

3. Policy Implications
o Courts aim to balance victim compensation and employer fairness.
o Debate over how broadly the test should be applied.

Conclusion

 Supreme Court decisions reshape vicarious liability but create challenges.

 Future cases may refine the test further.
4. Outline the policy justifications for vicarious liability
and review recent decisions in which the Supreme
Court aimed to clarify the approach to the ‘employment
relationship’.
Introduction

 Define vicarious liability and its rationale in tort law.

 Introduce the policy reasons behind its application.

Main Body

1. Policy Justifications
o Compensation for victims.
o Risk allocation – employers benefit, so they should bear risks.
o Encouraging responsible business practices.

2. Recent Decisions Clarifying the Employment Relationship

o Cox v Ministry of Justice (2016) – liability beyond traditional employment.
o Barclays Bank (2020) – clarified independent contractors are not employees.

3. Implications of These Decisions

o Expanding vs. restricting liability – when should liability apply?
o Courts attempt to strike a balance.

Conclusion

 Supreme Court refined but did not settle the employment relationship test.
 The doctrine continues to evolve.

5. Explain the recent cases in which the Supreme Court

has expanded the doctrine of vicarious liability and
illustrate its attempts to address this uncertainty.
Introduction

 Define vicarious liability and mention its expansion in recent years.

 Introduce the uncertainty in its application.

Main Body

1. Expansion of Vicarious Liability

o Catholic Child Welfare Society (2012) – liability beyond employers.
o Mohamud v Morrison (2016) – broadened the course of employment test.

2. Attempts to Address Uncertainty

 o W Morrison Supermarkets (2020) – restricted expansion.
o Barclays Bank (2020) – narrowed employer liability.

3. Policy Considerations
o Need to balance justice for victims vs. fairness to businesses.

Conclusion

 The Supreme Court has expanded and later restricted vicarious liability.
 Future cases will determine how much further it can go.

6. Describe the expansion of the doctrine of vicarious

liability in recent years, analysing the policy behind the
expansion and the Supreme Court’s attempts to
constrain this expansion.
Introduction

 Define vicarious liability and its modern expansion.

Main Body

1. Expansion of Vicarious Liability

o Catholic Child Welfare Society (2012).
o Cox v Ministry of Justice (2016).

2. Policy Justifications for Expansion

o Fairness to victims.
o Employers' ability to absorb risk.

3. Attempts to Constrain Expansion

o Barclays Bank (2020) – independent contractors are not employees.
o W Morrison (2020) – limiting course of employment test.

Conclusion

 The doctrine remains unsettled, balancing fairness and business interests.

7. Review the recent Supreme Court decisions which
have led to the expansion of vicarious liability and
explain its attempts to stem the flow of cases.
Introduction

 Define vicarious liability and how it has expanded over 20 years.

Main Body

1. Key Supreme Court Cases Expanding Liability

o Catholic Child Welfare Society (2012).
o Mohamud v Morrison (2016).

2. Judicial Attempts to Limit the Expansion

o Barclays Bank (2020).
o W Morrison (2020).

3. Policy Concerns
o Courts struggle to find a consistent balance.

Conclusion

 The expansion may continue, but courts are now limiting its scope.

8. Explain the Supreme Court’s view that vicarious

liability is a ‘doctrine on the move’ and illustrate with
case law how it has responded to criticisms of being
applied too generously.
Introduction

 Define vicarious liability as a constantly evolving doctrine.

Main Body

1. Supreme Court’s Expansion of Vicarious Liability

o Mohamud v Morrison (2016).

2. Supreme Court’s Restriction of Overexpansion

o W Morrison (2020).

3. Academic and Policy Concerns

o Giliker (2021) – balance between expansion and restriction.
Conclusion

 The doctrine remains in flux, and future rulings will shape its scope.

ESSAY 3:
Outline the conditions necessary for vicarious liability to be imposed and review recent
decisions in which the ‘course of employment’ test was considered by the Supreme
Court.(EXAM REPORT).

Vicarious Liability and the Course of Employment: Evolving Judicial

Approaches and Recent Supreme Court Decisions

Vicarious liability is a key doctrine in tort law, imposing liability on an employer for
wrongful acts committed by an employee in the course of their employment. The principle is
based on the idea that employers should bear the risks associated with the activities of their
employees, as they are in a position to exercise control over them and benefit from their
work. However, determining whether an employee’s wrongful act occurred within the
“course of employment” has proven to be a complex and evolving issue. This essay outlines
the conditions necessary for vicarious liability to be imposed and reviews key Supreme Court
decisions that have shaped the modern application of the “course of employment” test.

Conditions Necessary for Vicarious Liability

For vicarious liability to arise, two fundamental conditions must be satisfied. First, there must
be a legally recognized relationship between the wrongdoer and the defendant, typically that
of employer and employee. Second, the wrongful act must have been committed within the
scope of employment. The courts have developed various tests to assess these conditions,
with the focus shifting significantly in recent years, particularly regarding the second
condition.

The first condition—establishing an employment relationship—has seen significant

developments, especially in cases involving atypical working relationships. The courts have
moved beyond traditional contractual definitions and adopted a more functional approach.
In Various Claimants v Catholic Child Welfare Society (2012), the Supreme Court ruled that
the relationship between the Institute of the Brothers of Christian Schools and its members,
who committed acts of abuse, was “akin to employment,” even though there was no formal
contract. This decision demonstrated the court’s willingness to impose liability where the
nature and control of the relationship resembled that of an employer and employee.

The second condition—whether the wrongful act occurred in the course of employment—has
been subject to significant judicial scrutiny. Traditionally, the courts applied the Salmond
test, which distinguished between wrongful acts that were authorized by the employer and
unauthorized acts that were sufficiently connected to authorized duties. However, this
approach has been refined in recent years, particularly through Supreme Court decisions that
have sought to clarify or, in some cases, expand the scope of liability.
The Course of Employment Test: Judicial Developments and Supreme Court
Decisions

The scope of vicarious liability has been significantly redefined in modern case law,
especially regarding the course of employment. Several landmark cases illustrate the
evolving judicial approach to determining when an employee’s wrongful act can be attributed
to their employer.

One of the most influential cases is Lister v Hesley Hall Ltd (2001), which marked a shift
from the strict Salmond test to a more contextual and policy-driven approach. The case
involved a warden who sexually abused children at a school boarding house. The House of
Lords found that the wrongful acts were so closely connected to the employment that it was
fair and just to impose liability. This decision set a precedent for considering closeness of
connection rather than just whether the act was explicitly authorized.

This principle was further developed in Mohamud v W Morrison Supermarkets (2016), where
the Supreme Court extended the “close connection” test. In this case, an employee at a petrol
station physically attacked a customer. The court held that Morrison Supermarkets was
vicariously liable because the attack occurred within the framework of the employee’s duties,
even though it was an independent and violent act. The ruling emphasized that the employer
had placed the employee in a position of authority over customers, which created a sufficient
connection between his duties and the wrongful act.

However, subsequent cases have highlighted the difficulties in applying this broad
interpretation. In W Morrison Supermarkets v Various Claimants (2020), the Supreme
Court refined the approach by ruling that the employer was notliable for a data breach
caused by a disgruntled employee who deliberately leaked payroll information. The court
held that the employee’s wrongful act was not sufficiently connected to his employment
duties, as he was acting out of personal vendetta rather than furthering the employer’s
business. This decision suggested a shift toward restricting vicarious liability where an
employee’s actions are purely personal and beyond the scope of their work obligations.

A further example of the courts reconsidering the boundaries of vicarious liability is Barry
Congregation of Jehovah’s Witnesses v BXB (2023). In this case, the Supreme Court had to
determine whether a religious organization could be vicariously liable for sexual abuse
committed by one of its elders. The court found that the relationship between the wrongdoer
and the organization was not akin to employment and that the abuse did not occur in the
course of employment. This decision reinforces a growing judicial caution against
overextending vicarious liability, particularly in cases involving voluntary or religious
organizations.

Policy Considerations and Academic Perspectives

The expansion of vicarious liability in recent years has been heavily influenced by policy
considerations, particularly the need to ensure justice for victims while maintaining fairness
for employers. The courts have recognized that imposing liability on employers serves
a compensatory function for victims who might otherwise be unable to claim damages from
individual wrongdoers. However, there has also been concern that an overly broad
application of the doctrine might create unfair burdens on employers, especially where
wrongdoing occurs beyond their reasonable control.
Academic commentators such as Paula Giliker have analyzed these trends, noting that while
the Supreme Court has expanded vicarious liability in cases such as Mohamud, it has also
sought to impose necessary limits in cases like W Morrison Supermarkets v Various
Claimants. Giliker argues that the courts must strike a delicate balance between protecting
victims and preventing the excessive extension of employer liability.

The emphasis on risk allocation has also played a crucial role in shaping recent decisions.
Courts have increasingly focused on whether the employer created the conditions that
enabled the wrongdoing. In cases like Mohamud, the employer’s placement of the employee
in a position of authority over customers was a decisive factor. Conversely, in W Morrison
Supermarkets v Various Claimants, the court ruled that the employer could not be liable for
an act of personal revenge that was entirely outside its business interests.

Conclusion

The doctrine of vicarious liability, particularly the course of employment test, has
undergone significant refinement in recent years. While the courts initially adopted a
broad "close connection" approach in cases like Lister and Mohamud, more recent decisions
such as W Morrison Supermarkets v Various Claimants and Barry Congregation v
BXB suggest a move towards restraining the expansion of liability. These cases highlight the
judiciary’s attempt to maintain fairness and clarity in defining the scope of an employer’s
responsibility for wrongful acts committed by employees.

The tension between expanding liability to ensure justice for victims and limiting liability
to protect employers from unfair burdens remains a key issue in judicial decision-making.
As the courts continue to refine the doctrine, future cases will likely further clarify the
boundaries of the course of employment test, ensuring that liability is imposed only where it
is fair, just, and reasonable.

ESSAY NO 4:
Outline the policy justifications for vicarious liability and review recent decisions in
which the Supreme Court aimed to clarify the approach to the ‘employment
relationship’.(EXAM REPORT)

Vicarious liability is a doctrine that holds employers liable for the wrongful acts of their
employees committed in the course of employment. It serves various policy justifications,
primarily grounded in the principles of justice, deterrence, compensation, and the allocation
of risk to those who are in the best position to bear it. The fundamental rationale behind
vicarious liability is that employers benefit from the work of their employees and should
therefore bear responsibility for harms caused in the course of their duties. This doctrine
ensures that victims of wrongful acts have access to a solvent defendant who can provide
compensation, rather than being left without redress due to the financial incapacity of
individual wrongdoers. It also incentivizes employers to maintain high standards of
supervision, training, and workplace safety to minimize the risk of harm. However, the scope
of vicarious liability has evolved significantly, particularly in recent Supreme Court decisions
that have clarified the concept of an "employment relationship" in light of modern working
arrangements.
One of the major developments in this area concerns the question of who qualifies as an
employee for the purposes of vicarious liability. Traditional employment relationships,
characterized by clear hierarchical control, have been increasingly replaced by more flexible
working arrangements, necessitating judicial adaptation. The courts have developed a set of
tests to determine employment status, most notably in Market Investigations v Minister of
Social Security, where the control test was supplemented by a broader examination of
economic reality, considering whether the worker was integrated into the employer's
business. Similarly, in Mersey Docks and Harbour Board v Coggins and Griffiths, the court
emphasized that control remains a significant factor, but it is not the sole determinant. The
shift towards a more holistic approach was further reinforced in Viatytems v Thermal
Transfer, where the courts acknowledged the complexities of modern labor relationships by
recognizing that a worker could, in some circumstances, have multiple employers
simultaneously.

The Supreme Court has played a key role in refining the approach to employment
relationships within vicarious liability. A significant case in this regard is Various Claimants
v Catholic Child Welfare Society, where the Court extended vicarious liability beyond
conventional employer-employee relationships to include situations where the wrongdoer
was in a relationship akin to employment. This expansion was justified on policy grounds,
particularly the need to protect vulnerable individuals and ensure that organizations
benefiting from workers' activities bear responsibility for their misconduct. The case set out
key factors in determining whether a relationship is sufficiently close to employment,
including the extent of control exercised by the organization and the degree to which the
worker was integrated into its structure.

The reasoning in Catholic Child Welfare Society was subsequently applied and refined in
cases such as Cox v Ministry of Justice. Here, the Supreme Court held that prisoners working
in a prison kitchen could be considered akin to employees for the purposes of vicarious
liability, despite the absence of a formal contract of employment. The decision underscored
the idea that vicarious liability should not be rigidly confined to traditional employment
relationships but should instead focus on whether the employer had placed the worker in a
position where their actions could cause harm to others. This policy-driven approach was
further reinforced in Armes v Nottinghamshire CC, where the Court held that local
authorities could be vicariously liable for abuse committed by foster carers, despite the carers'
technically independent status. The ruling emphasized the practical reality that the local
authority exercised significant control over foster placements and derived benefit from their
work, justifying the imposition of liability.

However, the Supreme Court has also recognized the need to set limits on the expansion of
vicarious liability. In Barclays Bank v Various Claimants, the Court ruled that Barclays was
not vicariously liable for the wrongful acts of an independent medical examiner who had
been engaged as a contractor to conduct medical assessments. The decision marked a shift
away from the expansive approach seen in earlier cases, reinforcing the principle that true
independent contractors should not fall within the scope of vicarious liability. The judgment
emphasized that control and integration remain crucial factors, but the existence of a
genuinely independent business structure could preclude the imposition of liability. This
decision reflects an attempt to balance the need for victim compensation with the recognition
that businesses should not be indefinitely liable for the actions of independent third parties.
A similar restrictive approach was evident in Trustees of Barry Congregation v BXB, where
the Supreme Court clarified the boundaries of the "employment relationship" test in religious
organizations. The case involved allegations of abuse committed by a church elder, with the
claimant arguing that the church should be vicariously liable for his actions. The Court
ultimately ruled that the church did not exert sufficient control over the elder’s activities to
establish a relationship akin to employment. The decision demonstrates a growing judicial
reluctance to extend vicarious liability beyond situations where there is clear evidence of
organizational control and benefit derived from the worker’s role.

These recent Supreme Court decisions highlight an ongoing tension between the policy
justifications for vicarious liability and the need to establish clear limits to its application.
While the expansion of the doctrine in cases such as Catholic Child Welfare Society and Cox
reflects a strong commitment to ensuring victim compensation and risk allocation, cases like
Barclays Bank and Barry Congregation indicate a desire to prevent an overly broad
interpretation that could impose undue burdens on organizations. This balancing act is central
to the development of vicarious liability, as courts navigate the evolving nature of
employment relationships while striving to uphold principles of justice and accountability.

Academic commentary, particularly from scholars such as Paula Giliker, has critically
examined the direction of vicarious liability in recent years. Giliker has argued that the
expansion of the doctrine, while driven by laudable policy goals, risks creating uncertainty
for businesses and organizations seeking to determine their legal obligations. She suggests
that a clearer statutory framework may be necessary to provide greater predictability in the
application of vicarious liability, rather than relying solely on judicial discretion. This
perspective underscores the broader debate about whether vicarious liability should continue
to develop through case law or whether legislative intervention is required to provide greater
clarity.

Overall, the Supreme Court's recent decisions have significantly influenced the approach to
vicarious liability, particularly in clarifying the nature of the employment relationship. While
policy justifications such as victim compensation, deterrence, and risk allocation continue to
underpin the doctrine, the courts have demonstrated a willingness to impose limits on its
expansion. The shift from an increasingly broad application to a more nuanced and balanced
approach reflects an effort to ensure that vicarious liability remains fair and workable within
the evolving landscape of employment law. As new challenges emerge, particularly with the
rise of gig economy workers and other non-traditional labor arrangements, the courts will
likely continue to refine their approach, balancing the competing interests of victims,
employers, and broader policy considerations.

ESSAY NO 7:
‘In the last twenty years, vicarious liability in tort has undergone a transformation.’
(Giliker, P. (2021)) Review the recent Supreme Court decisions which have led to the
expansion of vicarious liability and explain its attempts to stem the flow of cases.
(EXAM REPORT).

Vicarious liability has undergone a remarkable transformation in the last two decades,
expanding beyond its traditional boundaries and shaping the way tort law imposes
responsibility on employers and organizations. The evolution of this doctrine has been
significantly influenced by policy considerations, particularly the need for victim
compensation, risk allocation, and deterrence. However, as vicarious liability has grown,
concerns have emerged regarding its potential overreach. Recent Supreme Court decisions
reflect an attempt to both broaden the doctrine where necessary and establish limits to prevent
excessive liability. The trajectory of vicarious liability is best understood through the analysis
of key cases, which illustrate its expansion and the judiciary’s subsequent efforts to refine
and constrain its scope.

The expansion of vicarious liability has been largely driven by the courts’ recognition that
traditional employer-employee relationships do not always reflect modern working
arrangements. The landmark decision in Various Claimants v Catholic Child Welfare Society
was a turning point in this regard. The Supreme Court extended vicarious liability to a
relationship akin to employment, holding that the Institute of the Brothers of the Christian
Schools could be liable for the abuse committed by its members. This decision was grounded
in policy considerations, emphasizing the Institute’s control over its members and the fact
that their roles placed them in a position of authority over the victims. The case demonstrated
the courts’ willingness to move beyond rigid classifications of employment and focus instead
on whether the relationship functioned in a way that justified imposing liability.

Following this, Mohamud v W Morrison Supermarkets further broadened the doctrine by

refining the test for the "course of employment." In this case, the Supreme Court held that a
supermarket could be vicariously liable for an unprovoked assault committed by one of its
employees on a customer. The ruling emphasized that the nature of the employee’s job
involved interacting with customers, making the wrongful act sufficiently connected to his
employment. This decision reinforced the principle that vicarious liability is not confined to
acts that strictly further an employer’s business but can also apply where an employee’s
actions, even if abusive, are linked to their role within the organization.

Another significant step in the expansion of vicarious liability was Cox v Ministry of Justice,
where the Supreme Court held that a prison service could be vicariously liable for the
negligence of a prisoner working in the prison kitchen. This case built upon the reasoning in
Catholic Child Welfare Society, confirming that liability could arise even in the absence of a
formal employment contract. The ruling clarified that the key question is whether the
relationship is one in which the employer significantly benefits from the work and exercises a
degree of control over the worker’s activities. This decision was particularly important in
broadening the reach of vicarious liability beyond conventional employment relationships,
further reinforcing the emphasis on policy considerations rather than strict contractual
definitions.

A further example of the expansion of vicarious liability can be seen in Armes v

Nottinghamshire CC, where the Supreme Court held that a local authority could be
vicariously liable for the abuse committed by foster carers. Although foster carers were not
employees of the local authority, the court determined that the nature of the relationship
justified liability. The decision was underpinned by policy considerations, particularly the
need to ensure victim compensation and the recognition that the local authority had placed
the foster carers in their roles. This case marked another significant shift in the scope of
vicarious liability, demonstrating the courts’ willingness to prioritize victim protection and
risk allocation over formal employment distinctions.
However, as the doctrine expanded, concerns arose about its potentially limitless application.
The courts began to recognize the need to impose constraints to prevent excessive liability. In
Barclays Bank v Various Claimants, the Supreme Court took a more restrictive approach,
ruling that the bank was not vicariously liable for the actions of an independent contractor.
The case involved claims of sexual abuse by a doctor hired by Barclays Bank to conduct
medical examinations. The Supreme Court rejected the argument that the bank should be
liable, emphasizing that the doctor was a true independent contractor and not in a relationship
akin to employment. This decision signaled a shift in judicial reasoning, establishing clear
boundaries on the scope of vicarious liability and preventing an indiscriminate extension of
liability to independent contractors.

A similar limiting approach was evident in W Morrison Supermarkets v Various Claimants.

Here, the Supreme Court ruled that Morrison’s was not vicariously liable for the actions of an
employee who had deliberately leaked confidential payroll data in an act of personal revenge
against the company. The court found that the employee’s actions were not closely connected
to his employment and were instead motivated by personal animosity. This decision
reaffirmed that vicarious liability should not be imposed where an employee’s wrongful act is
entirely independent of their job role. The ruling provided much-needed clarification on the
limits of the doctrine, preventing an overly broad interpretation that could impose liability on
employers for acts clearly beyond their scope of control.

These cases illustrate the dual trajectory of vicarious liability in the last twenty years. On one
hand, the courts have expanded the doctrine to address modern working arrangements and
ensure that victims receive compensation. On the other hand, they have recognized the need
to limit liability where it would be unjust or impractical to impose responsibility on an
organization. This balancing act reflects an awareness of the competing policy considerations
at play. While victim compensation and risk allocation remain primary justifications for
vicarious liability, the courts have also sought to prevent an unchecked expansion that could
lead to uncertainty and excessive burdens on employers.

Academic commentary, particularly from Paula Giliker, has analyzed this evolution in depth.
Giliker has argued that the broadening of vicarious liability, while justified in many respects,
has led to uncertainty in legal outcomes. She has suggested that a more structured approach,
possibly through statutory intervention, may be necessary to provide greater predictability.
The tension between expansion and limitation continues to shape judicial decisions, as courts
strive to balance the interests of victims with the need to impose fair and reasonable liability
on employers.

The transformation of vicarious liability over the last twenty years demonstrates a dynamic
interplay between policy, legal principles, and evolving societal expectations. The Supreme
Court has played a crucial role in shaping this doctrine, expanding it where necessary to
ensure justice while also setting limits to prevent overreach. Cases such as Catholic Child
Welfare Society, Mohamud, and Cox highlight the growing recognition that vicarious
liability should extend beyond traditional employment relationships. At the same time,
decisions such as Barclays Bank and Morrison Supermarkets illustrate the judiciary’s efforts
to refine the doctrine and prevent its unrestrained application. This ongoing evolution
underscores the significance of vicarious liability in modern tort law, reflecting both the
necessity of employer accountability and the importance of maintaining legal certainty.
ESSAY NO 8:

‘The Supreme Court has described vicarious liability as a doctrine “on the move” which
has “not yet come to a stop”.’ Explain this statement and illustrate with case law how
the Supreme Court has responded to criticisms that the doctrine was being applied too
generously. (EXAM REPORT).

Vicarious liability has been described by the Supreme Court as a doctrine “on the move” that
has “not yet come to a stop,” reflecting its dynamic and evolving nature. Over the past two
decades, the courts have expanded the doctrine beyond its traditional confines, recognizing
the need to adapt legal principles to modern employment structures and policy
considerations. However, this expansion has not been without criticism. Concerns have
emerged that vicarious liability was being applied too generously, creating an unfair burden
on employers and organizations. In response, the Supreme Court has taken steps to clarify the
limits of vicarious liability, ensuring that it does not become an open-ended mechanism for
imposing liability in every instance of wrongdoing. The judicial approach to vicarious
liability demonstrates an ongoing tension between victim compensation and the need to
maintain clear and fair boundaries on when an employer should be held responsible for the
actions of another.

One of the key drivers of the expansion of vicarious liability has been the recognition that
strict employer-employee relationships no longer adequately capture the reality of workplace
structures. The landmark case of Various Claimants v Catholic Child Welfare Society was a
pivotal moment in this evolution. The Supreme Court extended vicarious liability to a
relationship akin to employment, holding that an unincorporated religious institute could be
liable for abuse committed by its members. The decision was grounded in policy
considerations, particularly the level of control the institute exercised over its members and
the extent to which their roles placed them in a position of trust and authority. This marked a
significant shift in the law, demonstrating the courts’ willingness to impose liability in cases
where the traditional employer-employee model did not apply but where justice and risk
allocation justified it.

Following this, the case of Mohamud v W Morrison Supermarkets further broadened the
scope of vicarious liability by refining the "course of employment" test. In this case, a
supermarket was found vicariously liable for an employee’s violent assault on a customer.
The Supreme Court ruled that the assault was sufficiently connected to the employee’s role in
serving customers, despite being a personal act of aggression. This decision reinforced the
principle that liability could arise even where an employee’s wrongful conduct was abusive
or criminal, so long as there was a sufficiently close connection to their job. The case
attracted criticism for its seemingly broad application of vicarious liability, raising concerns
about whether employers could be held responsible for virtually any misconduct by their
staff.

The extension of vicarious liability continued in Cox v Ministry of Justice, where the
Supreme Court imposed liability on the prison service for the negligence of a prisoner
working in a prison kitchen. The court held that even though the prisoner was not a formal
employee, the relationship was sufficiently akin to employment to justify liability. This
decision reinforced the principle that liability could extend beyond traditional employment
relationships where an individual was integrated into an organization and performed work
that was essential to its functions. Similarly, in Armes v Nottinghamshire CC, the Supreme
Court ruled that a local authority could be vicariously liable for the abuse committed by
foster carers. The court emphasized that the local authority had placed the foster carers in
their roles and had created the risk of harm to the children in their care. These cases
highlighted the judiciary’s willingness to prioritize victim compensation and risk allocation
over strict contractual definitions, signaling a broad interpretation of vicarious liability.

However, as the doctrine expanded, concerns grew that it was being applied too generously.
Critics argued that the courts were imposing liability too readily, creating uncertainty for
employers and stretching the doctrine beyond its intended purpose. In response, the Supreme
Court took steps to limit the scope of vicarious liability in certain cases. Barclays Bank v
Various Claimants marked a significant shift in this direction. The Supreme Court ruled that
Barclays Bank was not vicariously liable for the actions of an independent doctor who
conducted medical examinations on its behalf. The court emphasized that the doctor was a
true independent contractor, rather than someone in a relationship akin to employment. This
decision reaffirmed that vicarious liability should not be imposed indiscriminately and helped
re-establish the principle that independent contractors generally fall outside its scope.

A similar limiting approach was taken in W Morrison Supermarkets v Various Claimants,

where the Supreme Court clarified the boundaries of the "close connection" test. The case
involved an employee who had deliberately leaked payroll data in an act of personal revenge
against the company. The court ruled that Morrison’s was not vicariously liable, as the
employee’s actions were not sufficiently connected to his role within the company. This
decision was significant in preventing an overly expansive interpretation of vicarious liability
that could hold employers responsible for acts entirely motivated by personal grievances
rather than furthering their employment duties. The ruling signaled the court’s intent to refine
the doctrine and avoid placing an excessive burden on employers for acts that fall outside the
legitimate scope of employment.

These recent decisions illustrate the Supreme Court’s attempt to strike a balance between the
expansion and limitation of vicarious liability. While the doctrine has evolved to reflect
modern working relationships and policy considerations, the courts have also recognized the
dangers of an unchecked extension of liability. The shift towards a more constrained
approach in cases such as Barclays Bank and Morrison Supermarkets suggests an effort to
clarify the legal principles governing vicarious liability, ensuring that it remains fair,
predictable, and justifiable.

Academic commentary, particularly from Paula Giliker, has explored this evolution in detail.
Giliker has argued that while the expansion of vicarious liability has been driven by
legitimate policy concerns, it has also created legal uncertainty. She has suggested that
greater doctrinal consistency and judicial restraint may be necessary to prevent vicarious
liability from becoming an overly flexible and unpredictable concept. The tension between
fairness to employers and protection of victims continues to shape the judicial approach to
vicarious liability, demonstrating its status as a doctrine "on the move."

The Supreme Court’s evolving approach to vicarious liability reflects the need to adapt legal
principles to contemporary realities while maintaining clear limits on employer
responsibility. Cases such as Catholic Child Welfare Society, Mohamud, and Cox illustrate
the expansion of the doctrine to address new challenges in workplace liability. However,
decisions like Barclays Bank and Morrison Supermarkets highlight the court’s response to
criticisms that vicarious liability was being applied too generously. This ongoing
development underscores the importance of balancing policy considerations with legal
certainty, ensuring that vicarious liability continues to serve its purpose without
overextending its reach. The doctrine’s future remains open-ended, but recent judicial
decisions indicate a more cautious and structured approach to its application.