Last reviewed 18 April 2018
The concept of vicarious liability is important in health and safety because it enables workers who have been injured by the actions of colleagues to recover compensation from employers rather than from the individuals, who may not be worth suing. Barrister Robert Spicer summarises the most significant recent decisions.
The most recent landmark decisions on vicarious liability are as follows.
Armes v Nottinghamshire County Council (2017)
A was taken into care by NCC in 1985 when she was aged seven. She was abused by successive foster parents with whom she was placed. NCC had not been negligent in the selection or supervision of the foster parents. The issue was whether NCC was vicariously liable to A. The decision of the Supreme Court was as follows.
NCC was liable.
The doctrine of vicarious liability applied where the relationship between the defendant and the tortfeasor had particular characteristics justifying the imposition of such liability.
A classic example of such a relationship was that between employer and employee. The doctrine could also apply where the relationship had certain characteristics similar to those found in employment.
There were five incidents of the relationship between employer and employee which made it fair, just and reasonable to impose vicarious liability and which could properly give rise to vicarious liability.
The employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against that liability.
The tort would have been committed as a result of activity being taken by the employee on behalf of the employer.
The employee’s activity was likely to be part of the business activity of the employer.
The employer, by employing the employee to carry out the activity, would have created the risk of the tort committed by the employee.
The employee would have, to a greater or lesser degree, have been under the control of the employer.
NCC had a statutory duty to care for children who had been committed to its care.
NCC paid allowances to foster parents, provided them with equipment and provided training.
It was impossible to draw a sharp line between the activity of NCC and the foster parents.
NCC exercised powers of approval, inspection, supervision and removal. It exercised a significant degree of control over what the foster parents did and how they did it.
Vicarious liability was only of practical relevance where the principal tortfeasor could not be found or was not worth suing.
These conditions were satisfied in the present context. Most foster parents had insufficient means to meet a substantial award of damages and were unlikely to have relevant insurance. NCC could more easily compensate the victims of injuries.
Cox v Ministry of Justice (2016)
Ms C was employed by the MOJ as the catering manager at a prison. She was responsible for the operation of the prison kitchen. She supervised prisoners who worked in the kitchen. She told some prisoners to take supplies to the kitchen stores. One prisoner accidentally dropped a sack of rice onto her back, injuring her. She brought a claim against the MOJ. At first instance, the claim was dismissed on the basis that the relationship between the prison service and the prisoner was not that of employer and employee. On appeal, the Court of Appeal reversed that decision. The MOJ appealed to the Supreme Court.
That court dismissed the appeal and made the following points.
The five factors (listed in the case above) made it fair, just and reasonable to impose vicarious liability on a defendant where there was not an employment relationship.
The fifth factor, that the tortfeasor will have been under the control of the defendant, no longer has the significance it was sometime considered to have.
A relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendant’s business and for its benefit and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual.
Activities assigned to prisoners who work in kitchens form an integral part of the activities of the prison. The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts.
C was injured as a result of I’s negligence in carrying on activities assigned to him and the prison service was therefore vicariously liable.
Mohamud v Morrison Supermarkets plc (2016)
In this case, the Supreme Court gave another landmark judgment in this area of law.
On 15 March 2008, M entered MS plc’s premises which include a petrol station and a kiosk. Having parked his car, he entered the kiosk to ask whether he could print some documents from a USB stick. K was behind the kiosk desk. He refused M’s request in a rude manner, at which M protested. K responded in foul, racist and threatening language and ordered M to leave. M returned to his car followed by K.
Before M could drive off, K told M in threatening words never to return and punched him. He then subjected M to a serious attack.
M brought proceedings against MS plc on the basis that it was vicariously liable for the actions of its employee K. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what K was employed to do and his tortious conduct in attacking M. The Court of Appeal upheld the judge’s decision.
M appealed to the Supreme Court, challenging whether the “close connection” test was the appropriate standard to apply and also arguing that his claim should have succeeded in any event.
The Supreme Court unanimously allowed the claimant’s appeal. It made the following points.
The court has to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (ie what was the nature of his job).
Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable. Applying that test here, it was K’s job to attend to customers and respond to their inquiries. His conduct in responding to M’s request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events.
The connection between the field of activities assigned to K and his employment did not cease at the moment when he came out from behind the counter and followed M onto the forecourt.