Essay: Vicarious liability

“The doctrine of vicarious liability lies at the heart of all common law systems of tort law.” Giliker (2010). In the case of Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366, Lord Millett said “Vicarious liability is a loss distribution device based on grounds of social and economic policy. Its rationale limits the employer\’s liability to conduct occurring in the course of the employer\’s employment.” As vicarious liability has developed it is has been based on social and economic policy and not on “any very clear, logical or legal principle…”Imperial Chemical Industries Ltd. v Shatwell [1965] AC 656, 686 (Lord Pearce).
In cases of law, employers are not vicariously liable if there is no relationship between them and the employee that they are being held liable for. “In order to establish vicarious liability of an employer, there must be a relationship of employer and employee and the employee must be acting in the course of his employment” Jones, 2015. This is similar in the case of The Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others [2012] UK5C 56. This case involved whether The Institute of Brothers should be held vicariously liable for the teachers from their institute being involved with abusing the children that they were teaching, even though it was not them who had employed the teachers, the employing was done by an outside organisation. This meant that The Institute of Brothers did not have an employer-employee relationship with these teachers. The Supreme Court ruled that The Institute of Brothers should be held liable along with the organisation who employed the teachers. In Cox (Respondent) v Ministry of Justice (Appellant), [2016] UKSC 10, Lord Phillips said “…Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is akin to that between an employer and an employee”. This establishes that even though the Institute and the teachers did not have a direct employer-employee relationship they had a similar relationship that meant the Institute could be held in tort.
However, it could be said that whilst employees are within the responsibility of their employers they are then responsible for their employees actions. This could be linked in to the case stated in of Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942) AC (509). In this case a tanker driver was delivering petrol to a garage and while the storage tank was being filled, lit a cigarette and threw away a lighted match causing an explosion. In this case the employer was held vicariously liable because “the driver was carrying out his job of delivering petrol and emptying his tanker, although he was doing so in a negligent matter” Jones, (2015). However, in Dickson and Dreary 1876-2009, it is said that there was a “well-known decision on on whether an employee was acting in the course of his employment at the time of the accident”. Even though smoking was not part of the employees role, at that time he was still within the responsibility of the company he worked for. The employer should have regulations that ensured such accidents did not happen and as the employee was still doing his job and helping the business then the employer should take the blame as if it was the other way around they would reap the benefits of this employees work. Another case summarised in Jones, (2015) is the case of Kay v ITW Ltd [1968] 1 QB 140. This case involved a worker moving another firms lorry in order to gain access to his employer’s warehouse, but in transit he ran over the claimant. The employer was held vicariously liable for this because the employee was moving the lorry so that he was able to complete his work. “The act of the employee was part of doing something he was authorised to do i.e. the general act of moving vehicles causing an obstruction” Rush and Ottley (2006).
Another discussion is that vicarious liability cannot be held if the employee was not performing an action of their employment. In the case of Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent), [2016] UKSC 11, the company was not held vicariously liable because even though Mr Khan had committed these offences at work, his job only entailed limited customer interaction and therefore it was not a responsibility of the company to ensure that he did not commit an offence out of this role. Lord Toulson ,who spoke as the judge in Mr A M Mohamud vs WM Morrison Supermarkets plc, stated “…although Mr Khan’s job involved some interaction with customers and members of the public who attended the kiosk, it involved nothing more than serving and helping them.” His offence was not related to serving or helping a customer and therefore the employers should not be held vicariously liable as his offence went beyond his role and was not related to what he should have been doing as an employee.
Consequently, there are many reasons why employers should be held vicariously liable for the actions of their employees. There is a binding contract between the company and the employees and so they should be liable if an act is committed that needs to be legally challenged. This could be argued that employees do not have a personal relationship with the figureheads of the company and this was discussed in the case of the Court of Appeal in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust quoted in Tutin, M (2016), which said that “the employer may have as close a connection with his regularly used independent contractor as he has with an employee who is but an anonymous member of his workforce.” This proves that even though the employee works for a business it does not mean they have a personal relationship within the company and so debates whether they company should then be held vicariously liable. If a company is employing someone to perform a role it should be their right to ensure that the person is right for the job and so is unlikely to put them in a position where they could be held for vicarious liability.