A step-by-step guide to Vicarious Liability

Vicarious liability is a form of strict liability whereby the defendant may be liable for the acts of another without fault. There is no question of contributory negligence. The first step in any claim concerns the claimant establishing that the acts complained of took place. Once the acts complained of are established the court will apply a two-stage test for vicarious liability:

Stage 1

Stage 1 is the relationship between the defendant and the wrongdoer one of employment i.e. employer and employee or is the relationship close enough to give rise to vicarious liability i.e.  ‘akin to employment’.

Stage 2

Stage 2 is the connection between the relationship (employment or akin to employment) and the wrongdoing close enough to impose vicarious liability? The ‘close connection’ test.

There are several legal authorities to keep in mid concerning stage 1 of the test.

Cox v Ministry of Justice

The claimant, a catering manager at HMP Swansea, suffered injury when one of the prisoners (who was assigned to kitchen work) dropped a sack of food onto her which he was moving at the time. It was accepted that the accident was caused through the negligence of the prisoner. The issue was whether the defendant was vicariously liable for that negligence.

The prisoner clearly wasn’t an employee although was engaged in a role akin to employment.  By employing the prisoner to carry out the activity, the prison created the risk of the act being committed by the prisoner; and the prisoner was to a greater or lesser degree under the control of the prison.

The work carried out by prisoners in this case relieved the Prison Service from engaging employees at market rates. It was work done for their benefit and on their behalf. Stage 1 of the test was met.

Barclays Bank plc v Various Claimants 

This case concerned sexual assaults by a doctor whilst conducting pre-employment medical examinations on individuals who had been offered employment with Barclays Bank. 

The doctor was not an employee of the bank and thus the court had to consider whether his role was akin to employment.

It was established that the doctor was not exclusively contracted to the bank and conducted medical examinations for other organisations although he did have a longstanding arrangement with Barclays. 

The doctor was in business on his own account as a medical practitioner with a portfolio of patients and clients. In support of this there were various other relevant factors such as the fact he did not work under the bank’s supervision, and he was responsible for his own tax affairs and insurance.

The bank was found not to be vicariously liable for the acts of the doctor, as he was not an employee of the bank nor was the relationship akin to employment.

DJ v Barnsley Metropolitan Borough Council & AG

DJ, aged ten, was abandoned by his parents in 1980 and went to live with his maternal aunt and uncle, Mr and Mrs G. In 2018, DJ alleged that he had been sexually assaulted by Mr G every other week between 1980 and 1986 and sought compensation from the local authority asserting that they were vicariously liable for Mr G’s acts.

The claimant’s home life was unsettled, and Mr and Mrs G expressed an interest in looking after the him. On 4 January 1980 the claimant went to live with them, and financial and material assistance was provided by the local authority. In April 1980, at the local authority’s suggestion, Mr and Mrs G applied to become DJ’s foster carers. A fostering assessment was completed and approved by the local authority. 

The Court of Appeal held that from 1 August 1980, DJ was in the care of the local authority and from that point was under a statutory duty to care for him. They had recruited and selected Mr and Mrs G as foster carers. Therefore, the court held that the relationship between Mr and Mrs G and the local authority was akin to employment.

However, the court was keen to highlight that they were not establishing a blanket rule for vicarious liability involving relatives and this finding was case specific.

Once a claimant establishes stage 1 of the test then the court needs to consider stage 2. There are several key legal authorities concerning “the close connection test” to consider. 

Mohamud v WM Morrisons Supermarkets  

Mr Mohamed, a customer had attended a petrol station kiosk run by the supermarket and had approached one of the staff members “K” with an enquiry. K was employed to serve customers and ensure that both the petrol pumps and kiosk were kept in good running order. He verbally abused the claimant and then ordered him to leave. K then followed the claimant onto the forecourt where he told him to keep away and assaulted the claimant in what was described as a violent and unprovoked assault. The claimant issued proceedings, claiming that Morrisons was vicariously liable for the assault by K.

The court considered two matters (a) what functions had been entrusted by the employer to the employee; and (b) whether there was sufficient connection between the employee's wrongful conduct and the position in which he was employed to find the employer vicariously liable.

It was held that it was K's job to attend to customers and respond to their inquiries. K’s conduct was inexcusable although they were within the field of activities assigned to him. What happened thereafter was an unbroken sequence of events. It was not right to regard K as having metaphorically taken off his uniform when he followed the claimant onto the forecourt. 

Moreover, once on the forecourt, K had repeated his order to leave. That was not something personal between him and the claimant; he was ordering him to keep away from his employer's premises, and this was reinforced by violence. In doing so he was purporting to act in the furtherance of his employer's business. While it was a gross abuse of his position, it was in connection with the business in which he was employed. As the supermarket had entrusted him with the position of serving customers it was just that it should be held responsible for his abuse of that position. 
The defendant was held vicariously liable and the claimant succeeded.

WM Morrisons Supermarkets v Various Claimants 

S had worked for Morrisons as an internal IT auditor and developed a grudge against his employer. He copied the personal data, including payroll data, of a large number of employees onto a USB stick. He took the stick home and uploaded a file containing the data to a publicly accessible file-sharing website. He was convicted of various criminal offences. 

The Supreme Court found that the employer was not vicariously liable for its employee's torts as the employee had not been engaged in furthering his employer's business when he committed the wrongdoing. He had been pursuing a personal vendetta. It was held that S was acting for own mischievous reasons unconnected with business of Morrisons. The claim failed.

The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB
This case concerned a rape committed by an "elder" of the organisation identified as “S” who was a part-time volunteer.

The claimant in this case “B” and her husband became friends with S and his wife when they began attending services of the Jehovah's Witnesses. B became concerned when S's behaviour towards her changed, and he started hugging and kissing her. She spoke to his father (also an elder) who explained that S was suffering from depression and needed emotional support. 

It was accepted at trial that, had it not been for S's status as an elder and the instruction from his father to support him, the friendship would have come to an end. However, B and her husband continued to support S. On the day in question, after they had been out evangelising together, S raped B at his home. He was subsequently convicted, and B brought a claim for damages.

The court held that Stage 1 of the test was satisfied as the elder was performing a role akin to employment. The court, in respect of stage 2 of the test, held that the Jehovah's Witness organisation was not vicariously liable for a rape committed by one of its elders.

The rape had been committed whilst S was in in his home, and whilst B was offering him emotional support, and not whilst the S was carrying out his authorised activities as an elder. There was no sufficiently close connection between the S's position as elder and the rape. The claim failed. 

MXX v A Secondary School

The claimant was a 13-year-old pupil at the defendant’s secondary school. The perpetrator known as PXM, was an 18-year-old former pupil of the school who was attending a college course to train as a PE teacher.

In February 2014, PXM undertook a one-week work experience placement at the school in its PE department. During the week he met the claimant but did not teach any of her classes. He invited the Claimant to attend an afterschool badminton club taking place on the final day of his placement. A week following the placement, he connected with the claimant on Facebook. 

It was unclear what messages were exchanged between them between then and July 2014, as the claimant had deleted the messages on PXM's instigation. Messages were available from July 2014 onwards, which were overtly sexual in nature. In August 2014, PXM sexually abused the claimant. He was subsequently convicted of multiple offences.

In 2020, the claimant issued proceedings against the school alleging that it was vicariously liable for PXM's abuse. The Court of Appeal found for the claimant on stage 1 of the vicarious liability test, finding that PXM's role during his 1-week placement was sufficiently akin to employment to be capable of giving rise to a finding vicarious liability, provided, of course, stage 2 was met. 

However, stage 2 of the test was not satisfied, as the Court of Appeal concluded that PXM's abuse of the claimant was not sufficiently closely connected to the duties delegated to him during the placement. PXM had no caring or pastoral role for the pupils; he did not exercise authority over the pupils; he had limited interactions with the claimant whilst he was at the school; he was on the work placement for just one week; and communication on Facebook did not begin until after the placement concluded. The claim failed.

Conclusions

The two-stage test requires a careful analysis of the facts in any given case as these authorities establish. This remains an area of judicial focus which is often referred to as “on the move.”  As claimants seek to extend the boundaries of vicarious liability, employers should consider what factors could lead to a claim being brought against them.