When is an employer liable for the torts committed by an employee, and why does the law impose this liability?
Vicarious liability: the requirement of a relationship of employment (or one akin to it) and that the tort was committed in the course of employment (the close connection test), and the policy reasons for the doctrine.
An OCR A-Level Law guide to vicarious liability. Explains the requirement of an employment relationship (or one akin to it), the close connection test for the course of employment, and the policy reasons for the doctrine, with key cases, worked exam answers and the AO2 application the paper rewards.
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What this dot point is asking
OCR Component 2 Section B requires you to know vicarious liability: when one person (usually an employer) is liable for a tort committed by another (usually an employee), even though the employer is not personally at fault. You must know the two-stage test (a relationship of employment or one akin to it, and a tort committed in the course of employment) and the policy reasons. The skill is to apply the test for AO2 and evaluate the doctrine for AO3.
The answer
Stage one: the relationship
Stage two: the course of employment
The tort must be committed in the course of employment, decided by the close connection test:
- The question is whether the wrongful act is so closely connected with the acts the employee was authorised to do that the employer should be liable (Lister v Hesley Hall, abuse by a warden closely connected with his duties).
- The test was applied broadly in Mohamud v WM Morrison Supermarkets (an assault by an employee at a kiosk), but the Supreme Court narrowed it in WM Morrison Supermarkets v Various Claimants (2020), stressing that an employee acting for purely personal reasons (there, an employee on a personal vendetta leaking data) is not acting in the course of employment.
- An employer is not liable where the employee is on a "frolic of their own", acting entirely outside the scope of the work.
Policy reasons
Examples in context
A strong answer applies both stages of the test and reaches a clear conclusion on the employer's liability.
Try this
Q1. Explain the close connection test for deciding whether a tort was committed in the course of employment. [12 marks]
- What the marker wants. Precise AO1: the test asks whether the wrongful conduct was so closely connected with the employee's authorised acts that it is fair and just to impose liability (Lister, Mohamud), with the narrowing in Morrisons (2020) for purely personal acts.
Q2. A nightclub bouncer employed by a security firm injures a customer by using excessive force while ejecting them. Advise on the security firm's vicarious liability. [20 marks]
- Cue. An AO2 application: the bouncer is an employee (stage one); using force to eject customers is part of the job, so excessive force may be closely connected with the authorised act (Lister, Mohamud), making the firm vicariously liable, subject to whether the bouncer was on a frolic.
Exam-style practice questions
Practice questions written in the style of OCR exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
OCR H418/02 2020 (Section B scenario)20 marksA delivery driver employed by a courier company assaults a customer during an argument about a parcel. In a separate incident, a self-employed contractor hired by the company damages a customer's property through carelessness. Advise on the company's vicarious liability. [Section B legal scenario, AO2]Show worked answer →
A scenario testing AO2 application of vicarious liability. Deal with each worker separately.
The driver (employee). First, the relationship: the driver is an employee (control and other tests; Ready Mixed Concrete). Second, was the tort in the course of employment? Apply the close connection test (Lister v Hesley Hall; Mohamud v Morrisons), asking whether the assault was so closely connected with what the driver was employed to do that it is fair to impose liability. An assault arising directly out of dealing with a customer about a parcel may satisfy this (compare Mohamud), so the company may be vicariously liable.
The contractor (independent contractor). Generally there is no vicarious liability for the torts of an independent contractor, so the company is unlikely to be liable for the contractor's carelessness unless the work was non-delegable or the relationship was akin to employment.
A top answer applies the two-stage test to each worker and concludes on each.
OCR H418/02 2022 (Section B essay)20 marksDiscuss the extent to which it is fair to hold an employer vicariously liable for the torts of an employee. [Section B extended-response evaluation, AO3]Show worked answer →
An AO3 evaluation essay marked by levels of response. The top level explains the doctrine, weighs the policy arguments and judges.
The doctrine. An employer is liable for an employee's tort committed in the course of employment, even without fault by the employer, where the close connection test is met (Lister, Mohamud, but note the narrowing in WM Morrisons v Various Claimants 2020).
Arguments for. The employer has deeper pockets and insurance (loss-spreading); the employer profits from the activity and creates the risk; it encourages careful selection and supervision; and it ensures victims are compensated.
Arguments against. It imposes liability without personal fault on the employer; the close connection test is uncertain and has expanded then contracted; and it may be unfair where the employee acts for purely personal reasons.
Judgement. Conclude that the doctrine is broadly justified by loss-spreading and enterprise risk, but the boundaries of the close connection test need to be clear and principled. The top level judges rather than lists.
Related dot points
- Liability in negligence: the duty of care, breach of duty (the objective standard and the risk factors), and damage (factual causation, remoteness and intervening acts).
An OCR A-Level Law guide to liability in negligence. Explains the duty of care, breach of duty and the risk factors, and damage through factual causation and remoteness, with key cases, worked scenario answers and the AO2 application the paper rewards.
- Occupiers' liability: the duty to lawful visitors under the Occupiers' Liability Act 1957 and the duty to trespassers under the Occupiers' Liability Act 1984.
An OCR A-Level Law guide to occupiers' liability. Explains the duty to lawful visitors under the Occupiers' Liability Act 1957 and the duty to trespassers under the Occupiers' Liability Act 1984, with key cases, worked scenario answers and the AO2 application the paper rewards.
- Private nuisance (unreasonable interference with the use or enjoyment of land and the relevant factors) and the rule in Rylands v Fletcher (strict liability for the escape of a dangerous thing brought onto land in a non-natural use).
An OCR A-Level Law guide to private nuisance and the rule in Rylands v Fletcher. Explains unreasonable interference with land and the relevant factors, and the strict liability rule for escapes, with key cases, worked scenario answers and the AO2 application the paper rewards.
- Defences in tort (contributory negligence and consent / volenti non fit injuria) and remedies (compensatory damages, including special and general damages, and injunctions).
An OCR A-Level Law guide to the defences and remedies in tort. Explains contributory negligence and consent (volenti non fit injuria) and the remedies of compensatory damages and injunctions, with key cases, worked exam answers and the AO2 application the paper rewards.
- The extended evaluation essay (AO3): building a balanced critical argument with examples, weighing strengths and weaknesses, and reaching a reasoned and supported judgement that answers the question.
An OCR A-Level Law guide to the extended evaluation essay. Explains how to build a balanced critical argument, weigh strengths and weaknesses with examples, and reach a reasoned judgement, with a worked plan and the AO3 evaluation the paper rewards across all three components.
Sources & how we know this
- OCR A Level Law (H418) specification — OCR (2017)