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Vicarious liability
Practical Law UK Legal Update 0-101-5345 (Approx. 2 pages)
Vicarious liability
| Published on 01 Aug 2001 |
The House of Lords has held that the test for deciding employer’s vicarious liability should focus on whether the act of the employee had a sufficiently close connection to the employment.
Summary. The House of Lords has held that the test fordeciding employer's vicarious liability should focus on whetherthe act of the employee had a sufficiently close connection tothe employment.
Background. It is well established that an employer isvicariously liable for the acts and omissions of its employeeswhere these occur "in the course of employment". The "Salmondtest" has been used to focus attention on whether the tortiousact was an unauthorised method of the employee carrying out hisduties of employment, or whether it was a "frolic of his own"(Salmond on Tort). The test states that a wrongful act isdeemed to be done by a servant in the course of his employment if"it is either a wrongful act authorised by the master, or awrongful and unauthorised mode of doing some act which isauthorised by the master". Over the years, this approach has beenwatered down with the result that an employee is liable for theacts for which he is not authorised provided they are associatedwith acts which he has authorised so that they may be regarded asmodes (albeit improper modes) of the performance of those duties(Canadian Pacific Railway Co v Lockhart [1942] AC591).
Facts. The claimants were boys who were resident at aboarding house run by a warden at a school for boys withbehavioural difficulties. The warden's duties were to maintaindiscipline and to supervise the boys when they were not atschool. The warden systematically sexually abused the claimantsat the boarding house. They brought a claim for personal injuryagainst the employers claiming vicarious liability for the actsof the warden.
Decision. The court held that the employers werevicariously liable for the acts of the warden. Lord Steyn lookedat two decisions of the Canadian Supreme Court dealing withvicarious liability on the sexual abuse of children (Bazey vCurry [1999] 174 DLR 45 and Jacoby v Griffiths [1999] 174DLR 71), both of which set out the principle of a "closeconnection" between the tortious act complained of and theemployment. Lord Steyn also rejected the more recent Court ofAppeal decision in Trotman v North Yorkshire CountyCouncil where the court decided that the act of sexual abuseof a young person by a teacher was "far removed from being anunauthorised mode of carrying out duties on behalf of hisemployer" ([1999] LGR 584). Lord Steyn said that thebetter approach was to concentrate on the "relative closenessbetween the nature of the employment and the particular tort".There was sufficient closeness between the warden's duty insupervising and looking after the boys at the boarding house andhis sexual assaults on them.
Lord Clyde agreed and said that, in vicarious liabilitycases:
- When assessing the scope of employment, a broad approachshould be adopted. This involved not dissecting the employee'sjob in its component activities, but looking at the job as awhole.
- Although the time and the place at which the acts oromissions occurred will always be relevant, they are notnecessarily conclusive.
- The fact that the employment enables the employee to bepresent at a particular time and place, thus giving him theopportunity to be present at the relevant premises where hecommits the act in question, it does not necessarily follow thatthe act is within the scope of employment. To establish vicariousliability, there has to be a greater connection between thetortious act of the employee and the circumstances of hisemployment, than the mere opportunity to commit the act at hisplace of work.
Case: Lister & Others v Hesley Hall Ltd [2001] UK HL22.