Introduction of Principles

Introduction

**Vicarious liability** is a legal concept that allows one party — most often an **employer** — to be held responsible for the **tortious acts committed by another party**, such as an employee. It is important to note that vicarious liability is **not a tort in itself** but a form of **secondary liability**, better thought of as a **'liability mechanism'**. This is distinct from **employers' liability**, which is a **primary** liability where employers owe a personal duty of care towards their own employees. It is not necessary for the employer to have committed any wrongdoing in order to be held vicariously liable: liability arises out of the wrongdoing of the employee. This chapter focuses on vicarious liability in the **employer-and-employee** situation.

Assessment focus

For SQE1 FLK1, you must be able to **identify when vicarious liability arises** and **apply** the test to realistic client scenarios. Examiners commonly present a factual problem in which an employee causes harm and ask whether the employer is liable. You must work through the **three conditions**: (1) a **recognised relationship** (employment or one akin to employment); (2) a **tort committed** by the employee; and (3) the tort committed **in the course of** that relationship (the 'close connection' / Lister test). Be ready to handle **'frolic of one's own'** scenarios (geographic divergence and deviation from the assigned task) and **intentional / criminal** wrongdoing applying the 'close connection' test as now authoritatively stated in **WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12**. Questions are **single best answer** — you must apply, not merely recall. This is a **closed-book** assessment.

Study tips

1) Memorise the **three conditions** for vicarious liability: recognised relationship + tort committed + committed in the course of the relationship. 2) Remember vicarious liability is **secondary** and **strict** — the employer need not be personally at fault; do not confuse it with primary **employers' liability**. 3) Vicarious liability can attach to **any tort**, not just negligence (e.g. assault, defamation, fraud). 4) For **intentional / criminal** acts apply the **Lister 'close connection' test**, as framed in **Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11** and now authoritatively restated in **WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12**: (i) what was the employee's field of activities, and (ii) was there a sufficient connection between the position and the wrongful conduct such that the wrongful act may fairly be regarded as done by the employee while acting in the course of employment (and not in a purely personal capacity)? Morrisons [2020] confirmed that the test is one of orthodox common-law reasoning, not merely of timing or causation, and that the employee's motive may be relevant. 5) For **'frolic'** problems weigh **geographic divergence** and **deviation from the assigned task** — the greater the deviation, the more likely the employee is outside the course of employment (Rose v Plenty). 6) Remember the **employer's indemnity** against the employee (Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555; Civil Liability (Contribution) Act 1978).