Vicarious liability: the requirement of a relationship of employment or one akin to it, the requirement that the tort be committed in the course of employment, and the justifications for the doctrine.

What this dot point is asking

AQA wants you to explain vicarious liability as a form of strict liability, identify when there is a relationship of employment (or one akin to it), apply the "course of employment" and close connection tests, and explain why the doctrine exists.

The relationship

The first question is whether the wrongdoer is an employee rather than an independent contractor. Courts apply tests of control, integration (whether the person is part of the organisation) and the multiple economic reality test (Ready Mixed Concrete v Minister of Pensions). The relationship need not be a formal employment contract: in Various Claimants v Catholic Child Welfare Society and Cox v Ministry of Justice, the doctrine was extended to relationships akin to employment.

Course of employment

An employer can be liable even for a prohibited act if it is still connected to the job (Rose v Plenty, the milkman who let a child help with deliveries despite a ban), but not where the act is wholly for the employee's own purposes. The same applies to negligent acts (Century Insurance, a tanker driver who lit a cigarette while delivering petrol) and even some criminal acts (Lister v Hesley Hall), provided the close connection is present. The courts have, however, recently signalled a limit: in WM Morrison v Various Claimants the Supreme Court stressed that an employee pursuing a purely personal agenda, even using workplace access, is on a frolic and outside the course of employment.

It is worth understanding the two-stage structure the courts now use. Stage one asks whether the relationship is one of employment or "akin to employment", a question reframed in Various Claimants v Catholic Child Welfare Society and Cox v Ministry of Justice (a prisoner doing kitchen work) to focus on whether the tortfeasor was integrated into the defendant's organisation and acting on its behalf, rather than on a formal contract. Stage two asks whether the tort was committed in the course of that relationship, using the close-connection test from Lister as restated in Mohamud and tightened in Morrison. Genuine independent contractors remain outside the doctrine, tested through control and the economic-reality factors in Ready Mixed Concrete. Evaluation questions ask whether the expansion of the doctrine, especially the "akin to employment" stage, has gone too far and exposed organisations to liability for wrongs they could not realistically prevent, or whether it correctly places the loss on the party best able to bear and insure against it.

Justifications

The doctrine is justified by policy: the employer creates the risk by carrying on the enterprise, is usually better able to bear the loss and carry insurance (the deep pocket), profits from the employee's work, and is encouraged to maintain good standards and supervision. These were summarised as the reasons making it "fair, just and reasonable" in Catholic Child Welfare Society.

How vicarious liability is examined

Vicarious liability is examined through problem questions, where you apply the two limbs to the employer and employee, and evaluation of whether the doctrine has expanded too far. Examiners reward establishing the underlying tort, testing the relationship and the close connection on the facts, and a conclusion supported by the policy justifications.