When is an employer liable for a tort committed by an employee?
Vicarious liability: the requirement of a relationship of employment (the tests for employee status), a tort committed by the employee, and that the tort was committed in the course of employment (the close connection test).
An Eduqas A-Level Law guide to vicarious liability. Explains the tests for employee status, the requirement of a tort, and the close connection test for the course of employment, with worked scenario answers and the AO2 application the paper rewards.
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What this dot point is asking
Eduqas tort requires you to know vicarious liability: the requirement of a relationship of employment (the tests for employee status), a tort committed by the employee, and that the tort was committed in the course of employment (the close connection test). The skill is to apply the three requirements to a scenario (AO2) and to evaluate the doctrine (AO3).
The answer
A relationship of employment
A tort committed by the employee
The claimant must show the employee actually committed a tort (most often negligence, but also intentional torts such as battery or trespass to the person). Without an underlying tort there is nothing for which the employer can be vicariously liable.
In the course of employment: the close connection test
Examples in context
A strong answer reasons through all three requirements, with the close connection test as the decisive one.
Try this
Q1. Explain the tests the courts use to decide whether someone is an employee for the purposes of vicarious liability. [10 marks]
- What the marker wants. Precise AO1: the control test, the integration test and the economic reality (multiple) test (Ready Mixed Concrete), plus the extension to relationships akin to employment (Cox v Ministry of Justice).
Q2. A hospital porter, while moving a patient, negligently drops the trolley and injures the patient. Advise the patient on whether the hospital is vicariously liable. [20 marks]
- Cue. An AO2 application: the porter is an employee (control and integration); dropping the trolley is negligence; moving patients is exactly what he was employed to do, so the act is closely connected with his work (Lister), and the hospital is vicariously liable.
Exam-style practice questions
Practice questions written in the style of WJEC Eduqas exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
Eduqas Component 2 2022 (scenario)20 marksA delivery driver employed by a courier company, while making deliveries, loses his temper and assaults a customer who complains about a late parcel. Advise the customer on whether the courier company is vicariously liable. [a scenario in the style of Component 2; the real paper tariff is 25, AO1 and AO2]Show worked answer →
A mainly AO2 scenario on the close connection test.
Employee. The driver is employed by the company (a contract of service), so the first requirement is met; the control, integration and economic-reality tests confirm employment.
A tort. The assault is the tort of battery (and potentially trespass to the person).
Course of employment. The question is whether there is a close connection between the assault and the work (Lister v Hesley Hall). In Mohamud v Morrison the employer was liable when a petrol-station attendant assaulted a customer, because the attack arose from an interaction within the field of activities entrusted to him. Here the driver was dealing with a customer about a delivery, his job, so a court may find a close connection and hold the company liable. Contrast a purely personal quarrel unconnected with the work.
A top answer applies the close connection test (Lister; Mohamud) to the facts and reaches a reasoned conclusion.
Eduqas Component 3 2021 (essay)20 marksAnalyse and evaluate the justifications for vicarious liability. [an essay in the style of Component 3; the real paper tariff is 25, AO1 and AO3]Show worked answer →
A mainly AO3 essay. Explain vicarious liability, then evaluate its fairness and the policy behind it.
The law. An employer is strictly liable for torts committed by an employee in the course of employment, even without personal fault, where the worker is an employee (or in a relationship akin to employment, Cox v Ministry of Justice; Various Claimants v Catholic Child Welfare Society) and there is a close connection between the tort and the work (Lister; Mohamud; but contrast WM Morrison v Various Claimants, where a rogue employee acted on a personal vendetta).
Evaluation. Justifications: the employer has deeper pockets and insurance, can spread the loss, profits from the activity and can control and train staff; it ensures the victim is compensated. Criticisms: it imposes liability without fault on a blameless employer; the close connection test is uncertain and has expanded; and the boundaries of akin to employment are unclear.
A top answer explains the doctrine and weighs the policy justifications against the unfairness to a faultless employer, then concludes.
Related dot points
- Liability in negligence: the duty of care (Donoghue v Stevenson and the Caparo test), breach of duty (the reasonable person and the risk factors), and damage (factual causation by the but for test and remoteness under The Wagon Mound).
An Eduqas A-Level Law guide to liability in negligence. Explains the duty of care, breach and the risk factors, and causation and remoteness of damage, with worked scenario answers and the AO2 application the paper rewards.
- Occupiers liability: the duty owed to lawful visitors under the Occupiers Liability Act 1957 (the common duty of care, children, skilled visitors and independent contractors) and the duty owed to trespassers under the Occupiers Liability Act 1984.
An Eduqas A-Level Law guide to occupiers liability. Explains the common duty of care to lawful visitors under the 1957 Act and the conditional duty to trespassers under the 1984 Act, with worked scenario answers and the AO2 application the paper rewards.
- Nuisance and the rule in Rylands v Fletcher: private nuisance (unlawful interference with the use and enjoyment of land, the factors and defences), public nuisance, and the rule in Rylands v Fletcher (a non-natural use, the escape of a dangerous thing and foreseeable damage).
An Eduqas A-Level Law guide to nuisance and the rule in Rylands v Fletcher. Explains private and public nuisance, the relevant factors and defences, and strict liability for an escape, with worked scenario answers and the AO2 application the paper rewards.
- Defences and remedies in tort: the defences of consent (volenti non fit injuria), contributory negligence and necessity, and the remedies of compensatory damages (special and general) and injunctions.
An Eduqas A-Level Law guide to the defences and remedies in tort. Explains consent, contributory negligence and necessity, and compensatory damages and injunctions, with worked scenario answers and the AO2 application the paper rewards.
- The evaluation essay (AO3): structuring a balanced argument, analysing strengths and weaknesses, using examples, cases and reform proposals, and reaching a reasoned conclusion.
An Eduqas A-Level Law guide to the evaluation essay (AO3). Explains how to structure a balanced argument, analyse strengths and weaknesses, use examples and reform proposals and reach a conclusion, with worked examples and the technique the Component 3 paper rewards.
Sources & how we know this
- Eduqas A Level Law (A150) specification — WJEC Eduqas (2017)