Vicarious Liability – When does it arise?

Two recent decisions of the UK Supreme Court have considered the doctrine of vicarious liability and effectively extended it to a wider range of circumstances.

In the UK an employer can be held liable for the tortious acts committed by an employee in the course of their employment.   Courts will consider whether there is a relationship between the wrongdoer and the defendant which is capable of giving rise to vicarious liability and whether the employment is sufficiently connected with the wrongful act or omission.

In the first case the Supreme Court considered what sort of relationship must exist. The question arose as to whether the Ministry of Justice was vicariously liable for the negligence of a prisoner who, while working in prison kitchens, dropped a sack of rice, causing injury to an employee of the prison. The court held that vicarious liability can be extended beyond the traditional employment relationship to an individual who was not an “employee”. It noted that an earlier decision had given rise to a “modern theory of vicarious liability”, in which a relationship other than employment is in principle capable of giving rise to vicarious liability. Vicarious liability can therefore exist where harm is wrongfully done by an individual who carries on activities for the defendant’s benefit as an integral part of its business, and where the defendant, in assigning those activities to the individual, has created a risk of the wrongful act being committed. This therefore extends vicarious liability to many situations in modern workplaces where workers may in reality be part of the workforce of an organisation without having a contract of employment with it.

The second case considered whether an employer could be legally liable for a wrongdoers actions which appear unconnected to the employment duties. This case concerned a supermarket employee’s unprovoked violent assault on a customer. In the Court of Appeal, the court had held that the mere fact of contact between a sales assistant and a customer which is plainly authorised by the employer was not sufficient to fix the employer with vicarious liability. Overturning the decision, the Supreme Court found that there was a sufficiently close connection between the assault and the employee’s job of attending to customers, such that the employer should be held vicariously liable. It held that the actions of the employee were within the ‘field of activities’ assigned to him. The employer had tried to argue that once the employee had come out from behind the counter he had metaphorically ‘taken off his uniform’ and so his relationship with the customer had changed. However, the court viewed this as an unbroken sequence of events and held that although his actions were inexcusable they were in connection with the business in which he was employed to serve customers. In addition, when the employee had told the claimant never to return to the petrol station again, he was effectively ordering the claimant to stay away from his employer’s premises and was purporting to act about his employer’s business. As such there was a close enough connection for the employer to be vicariously liable. The employee’s motive was irrelevant. The Court’s approach has been to consider what was just in the circumstances, and each case will have to rest on its facts. However, from an employer’s perspective any link to an employee carrying out his “field of activities” would appear to be sufficient to establish that the employer should be held liable for the employee’s actions.