Vicarious liability: the requirements that there is a relationship akin to employment and that the tort was committed in the course of employment, including the close connection test and frolics of one's own.

What this dot point is asking

This dot point covers vicarious liability, where one party (usually an employer) is held liable for a tort committed by another (usually an employee) because of the relationship between them. You need to establish two requirements: a relationship of employment (or akin to it), and that the tort was committed in the course of employment, applying the close connection test. WJEC tests both explanation of the doctrine and application to a scenario, advising whether the employer is liable.

The answer

What vicarious liability is

Requirement one: a relationship of employment

To establish the relationship, the court distinguishes an employee (under a contract of service) from an independent contractor (under a contract for services), for whom there is generally no vicarious liability. The tests include:

• Control: how far the employer controls what is done and how.
• Integration: whether the worker is integrated into the business.
• Economic reality (multiple) test: weighing factors such as wages, provision of tools, and who bears financial risk.

Requirement two: in the course of employment

The tort must be committed in the course of employment. A wrongful but authorised act, or an unauthorised way of doing an authorised act, falls within the course of employment, but a "frolic of one's own" does not (Hilton v Thomas Burton, workers who detoured for an unauthorised trip). For deliberate wrongdoing the courts apply the close connection test (Lister v Hesley Hall, a warden's abuse of children was closely connected to his caring role; Mohamud v Morrisons, an assault by a petrol station attendant was connected to his job of serving customers): the employer is liable if the tort is so closely connected with the employment that it is fair, just and reasonable to impose liability.

The doctrine is justified because the employer profits from the employee's work, is usually better able to bear the loss and to insure against it, and has an incentive to supervise and reduce risk.

Examples in context

The close connection test is what makes vicarious liability reach deliberate wrongdoing. In Lister v Hesley Hall a school was held liable for sexual abuse committed by a warden, because the abuse was so closely connected with the very duties of care he was employed to perform that it was fair to hold the employer responsible. Mohamud v Morrisons extended the reasoning to a violent assault: the attendant's job was to serve customers, and his aggression flowed from that interaction, so the connection was close enough. By contrast, the older "frolic" cases such as Storey v Ashton show the limit: an employee who, after finishing work, set off on a personal errand was outside the course of employment, so the employer escaped liability. Applying these cases lets you advise precisely whether a second, solvent defendant is available to the claimant.

Try this

Q1. Name the two requirements for vicarious liability. [2 marks]

• Cue. A relationship of employment (or akin to it) and a tort committed in the course of employment.

Q2. What does the close connection test ask? [2 marks]

• Cue. Whether the tort is so closely connected with the employment that it is fair, just and reasonable to impose liability.

Q3. Advise whether an employer is vicariously liable for an employee's tort. [20 marks]

• What the marker wants. The relationship established (employee or akin, not contractor), the course of employment applied with the close connection test, frolics distinguished, and a conclusion on the employer's liability.