Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conducting their duties. This liability has expanded in recent years following the decision in Lister v Hesley Hall Ltd to better cover intentional torts, such assexual assault and deceit. Historically, it was held that most intentional wrongdoings were not in the course of ordinary employment, but recent case law suggests that where an action is closely connected with an employee’s duties, an employer can be found vicariously liable.The leading case is now the Supreme Court decision in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools, which emphasised the concept of “enterprise risk”.
Justification for such wide recovery has been made in several areas. The first is that, as is common in tort law, policy reasons should allow those injured to have means of compensation. Employers generally have larger assets, and greater means with which to offset any losses (deep pocket compensation) Secondly, it is under the instruction of an employer by which a tort is committed; the employer can be seen to gain from the duties of their employees, and thus must bear the consequences of any wrongdoings committed by them. Lastly, it has been justified as a way to reduce the taking of risks by employers, and to ensure adequate precautions are taken in conducting business.
Developments in establishing liability
An employer is strictly liable for torts committed by those under his command, when they are found to be his employees. To this end, the courts must find a sufficient relationship to this effect, where issues of vicarious liability are raised. It has been stated judicially that no one test can adequately cover all types and instances of employment; thus, generally, the tests used and ultimate determination rest upon the individual aspects of each case, looking at all the factors as a whole.For example, it need not matter that an employer classifies a relationship as one of independent contractor, if all the other factors represent a relationship of employee.
Historical tests centered around finding control between a supposed employer and an employee, in a form of master and servant relationship. The roots for such a test can be found in Yewens v Noakes,where Bramwell LJ stated that:
“…a servant is a person who is subject to the command of his master as to the manner in which he shall do his work.”
The control test effectively imposed liability where an employer dictated both what work was to be done, and how it was to be done. This is aptly suited for situations where precise instructions are given by an employer; it can clearly be seen that the employer is the causal link for any harm which follows.If on the other hand an employer does not determine how an act should be carried out, then the relationship would instead be one of employer and independent contractor. This distinction was explained by Slesser LJ:
“ It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the contract. The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor.
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In recent years, as the duties of employees have grown ever more specialised and far reaching, the control test has seen less primary use in establishing liability.It is difficult to state for example that a hospital administrator controls the method and actions of a professional doctor, despite liability having been clearly established in such cases.Different formulations of the test have been proposed, in an attempt to rectify these problems. One such formulation focuses on the ability of an employer to specify where and when tasks be carried out, and with whose tools and materials.
Other tests of employment have focused on different contractual and external factors. Lord Denning proposed a test based on the integration of an individual to a business or organisation.Tests based on the economic relationship between an employer and employee have found favour in subsequent cases, notably Market Investigations Ltd v Minister of Social Security,in the decision of Lord Cooke. Here, it was argued that where a person was in business on their own account (and at their own risk), they would be under a contract for services, whilst otherwise they would be under a contract of service. This idea have been cited with approval by the Privy Council, with several relevant factors being considered, such as risk of loss, and chance of profit.
As can be noted, liability is generally not extended to the acts of independent contractors.Though such a distinction has been criticised, there are several circumstances in which an employer may be liable for the acts of contractors. If an employer commissions a tort, this will render the employer a joint tortfeasor. Additionally, where an employer is negligent in selecting a competent third party contractor, liability may be imposed. The broadest exception however is where a non-delegable duty is imposed upon an employer, either by statute or through common law, to prevent the harm of others.Where a duty is imposed by statute, either to carry out work in a certain way, or to take due care in carrying out work, then this is non-delegable.Common law duties may arise in several exceptional circumstances. One such is where an activity is being undertaken which is especially hazardous, and involves obvious risks of damage. This duty was recognised in Honeywill and Stein Ltd v Larkin Brothers Ltd, where photographers who negligently photographed the interior of a theatre set alight to the building. Their employers were found vicariously liable, as the dangerous methods of photography created a fire hazard. Additionally, where work is being undertaken on a highway, a non-delegable duty is created not to endanger any road users.Lastly, occupiers are liable in full where an independent contractor, through negligence, allows fire to spread to neighbouring land.
Author- Ashish Kaushik
Class- BBA LL.B 5.1
College- Geeta institute of law, paipat
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