Vicarious Liability

Tort Law > Vicarious Liability

You are assessing whether an employer is liable for an employee's wrongful act and must work through two critical questions: is the tortfeasor an employee (or someone akin to employment), and was there a close connection between the employment relationship and the tort. Modern case law, particularly Lister and Mohamud, has expanded vicarious liability in ways that frequently trap exam candidates.

What Is Vicarious Liability?

Candidates often lose marks on SQE1 by assuming vicarious liability applies to independent contractors — it only applies to employees, and the distinction between the two is tested repeatedly. Vicarious liability is a form of strict, secondary liability where one party (typically an employer) is held liable for the tortious acts of another (typically an employee), even though the employer is not personally at fault. It exists for policy reasons - the employer benefits from the employee's work, can spread the cost through insurance, and is better placed to prevent harm.

Vicarious liability requires: (1) a relationship capable of giving rise to vicarious liability (usually employment); and (2) a sufficient connection between that relationship and the tort. Understanding negligence duty breach causation and remoteness provides the foundation, and knowing employers' liability will help you distinguish this from the employer's own breach.

Key Principles for SQE1

• Employee vs independent contractor: Vicarious liability traditionally applies only to employees, not independent contractors. The distinction is determined by the 'multiple test' - considering factors such as control, integration into the business, provision of own equipment, financial risk, and mutuality of obligation (Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968]).

• Expansion to 'akin to employment': The Supreme Court extended vicarious liability to relationships 'akin to employment' in certain circumstances (Various Claimants v Catholic Child Welfare Society [2012] - the Christian Brothers case; Barclays Bank plc v Various Claimants [2020] refined this, holding that the traditional employee/independent contractor distinction remains the default).

• Course of employment - the close connection test: The employer is vicariously liable if the tort was so closely connected with the employment that it would be fair and just to hold the employer liable (Lister v Hesley Hall Ltd [2002]; Mohamud v WM Morrison Supermarkets plc [2016]).

• Authorised acts done in an unauthorised manner: The employer is liable where the employee does an authorised act in an unauthorised way (Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942]).

• Frolic of his own: The employer is not liable if the employee is on a 'frolic of his own' - a complete departure from the scope of employment (Storey v Ashton [1869]).

• Intentional torts: Vicarious liability can extend to intentional wrongdoing (including assault and abuse) if the close connection test is satisfied (Lister v Hesley Hall [2002]; Mohamud v WM Morrison [2016]).

Exam tip

Always work through two questions: (1) Is the tortfeasor an employee (or someone akin to employed)? and (2) Is there a close connection between the employment and the tort? Don't assume vicarious liability never applies to intentional torts—Mohamud shows the close connection test can cover assault and deliberate wrongdoing. Watch for 'frolic of his own' scenarios—a significant deviation from employment duties breaks the connection. Remember: vicarious liability (employer liable for employee's tort) is different from employers' liability (employer's own breach).

How This Appears in SQE1 Questions

SQE1 questions test both stages - the relationship and the connection to the tort. A common trap is applying vicarious liability to an independent contractor. Another is stating that an employer is never liable for intentional torts - after Lister and Mohamud, the close connection test can cover deliberate wrongdoing. Watch for scenarios where the employee deviates significantly from their duties (frolic of his own) - this defeats vicarious liability. This is a classic SQE1 trap.

Quick Example Scenario: A delivery driver employed by a supermarket chain assaults a customer during a dispute at a fuel station on the supermarket's premises. The customer sues the supermarket under vicarious liability.

This mirrors the facts of Mohamud v WM Morrison. The question is whether the assault was sufficiently closely connected to the employment. The driver was employed to interact with customers; the assault arose from that interaction and took place at the employer's premises during working hours. Applying the close connection test, the supermarket is likely vicariously liable despite the assault being an intentional tort.

Common Mistakes Students Make

• Applying vicarious liability to independent contractors - the default rule still requires an employment (or akin to employment) relationship.
• Stating that vicarious liability never covers intentional torts - after Lister and Mohamud, it can if the close connection test is satisfied.
• Confusing vicarious liability (employer liable for employee's tort) with employers' liability (employer's own breach of duty).
• Forgetting the 'frolic of his own' principle - a complete departure from employment duties breaks the connection.

Quick Summary

• Vicarious liability makes an employer liable for torts committed by employees in the course of employment
• The tortfeasor must be an employee, not an independent contractor
• The close connection test (Lister v Hesley Hall) determines if the tort was in the course of employment
• Employers can be vicariously liable even for intentional torts if closely connected
• A frolic of his own takes the employee outside the course of employment

Want to test this now? Try a few SQE1-style questions below before moving on.

Test Yourself

Related Topics

• SQE1 Tort Law: Complete Guide
• Negligence: Duty, Breach, Causation and Remoteness
• Economic Loss and Negligent Misstatement
• Employers' Liability

Practise Vicarious Liability Questions for SQE1

Want to solidify your knowledge? ActusPrep provides realistic SQE1 questions tailored to this topic.

👉 Try our free demo: https://actusprep.com/demo 👉 View plans and pricing: https://actusprep.com/pricing