Vicarious liability is legal responsibility imposed on an employer, who may himself be free from blame, for a tort committed by his employee in the course of his employment. In this sense it is a species of strict liability.
The traditional test for the imposition of vicarious liability was as set out by Salmond in his Law of Torts as early as 1907: “a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.” Whilst this formulation works well as a rule of thumb, the first limb is not really an example of vicarious liability at all (it is primary liability) and the second does not deal conveniently with intentional wrongdoing.
As regards the second limb, the text continues: “but a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them.”
The Salmond test, whilst still a useful starting point, needs now to be considered in the light of the decision of the House of Lords in Lister v Hesley Hall Ltd , which directs us to pay particular attention to the closeness of the connection between the employee’s duties and his wrongdoing.
In Lister the appellants had been pupils at a boarding school, which mainly catered for children with emotional and behavioural difficulties. The school employed a warden who was responsible for the day to day running of the boarding house and for maintaining discipline. He lived there with his wife and on most days he and his wife were the only members of staff on the premises. He supervised the boys when they were not at school and the boarding house was intended to be a home for the boys, rather than simply an extension of the school environment.
Unbeknown to the school, the warden systematically sexually abused the appellants at the boarding house. The sexual abuse was preceded by grooming to establish control over the appellants. It involved unwarranted gifts, undeserved leniency and so forth. What may initially have been regarded as signs of a relaxed approach to discipline gradually developed into blatant sexual abuse.
Neither of the appellants made any complaint at the time. After the appellants and the warden had left the school, the warden was convicted of multiple offences involving sexual abuse. The appellants brought claims for personal injury against the employer, alleging negligence and that the employer was vicariously liable for the torts committed by the warden.
The claim in negligence failed and the trial judge was bound to dismiss the claim based on vicarious liability in accordance with the decision of the Court of Appeal in Trotman v North Yorkshire County Council , wherein Butler-Sloss LJ had said “in the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”
The House of Lords overruled Trotman and held the school liable for the warden’s assaults. It was said not to be necessary to ask the question whether the acts of sexual abuse were modes of doing authorised acts. The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort. It is “no answer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer’s duty” .
The warden’s duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself was not enough to make the school liable. The same would be true of the groundsman or the school porter. Likewise the fact that his employment gave him the opportunity to establish a friendship with the boys would not constitute a sufficient connection .
The important point was that the school was responsible for the care and welfare of the boys and had assumed a relationship to them which imposed specific duties in tort. It entrusted that responsibility and the performance of those duties to the warden. He was employed to discharge the school’s responsibility to the boys. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities. There was, accordingly, a very close connection between the torts of the warden and his employment.
The position was again considered by the House of Lords in Dubai Aluminium Co Ltd v Salaam . The House again stressed the importance of considering the closeness of the connection between an employee’s duties and his wrongdoing. The mere fact that he was acting dishonestly or for his own benefit is seldom likely to be sufficient to show that an employee was not acting in the course of his employment.
Once a sufficient connection is established, it is immaterial whether the wrongdoing in question was unauthorised or expressly forbidden by the employer or civilly or criminally illegal. It was emphasised that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carries on.
Whilst Lister was a case concerning sex abuse and Dubai Aluminium concerned dishonesty, it is probably in the field of claims arising out of unlawful violence that the greatest effect has been felt. In Mattis v Pollock the defendant owned a nightclub and employed Mr Cranston as a doorman. Cranston, who was unlicensed, had a history of behaving aggressively and was employed to act on that basis towards customers. Mr Mattis went to the club one evening with friends. Cranston tried to eject one of the group from the club and a fight ensued, during which Cranston hit at least two of the group with a knuckleduster or similar.
The defendant did nothing to discourage Cranston from acting in this way. The incident provoked a reaction amongst others at the club and a group turned on Cranston who fled the club to his flat. Mr Mattis, who had not been particularly involved in the incidents, was making his way home when Cranston reappeared, armed with a knife. Cranston stabbed Mr Mattis in the back, severing his spinal cord and rendering him paraplegic. Mr Mattis brought proceedings against the defendant on the basis that he was vicariously liable for the injuries inflicted on him by Cranston as well as being in breach of his own duty of care.
The claims failed at first instance. However, despite the lapse in time and the fact that Cranston’s behaviour was essentially an act of personal revenge, the Court of Appeal held that, approaching the matter broadly, the assault was so closely connected with what the defendant authorised or expected of Cranston in the performance of his employment as a doorman, that it would be fair and just to hold the defendant vicariously liable for the injuries.
Cranston’s attack was referable to his earlier humiliation at the club. It was observed that where an employee is expected to use violence while carrying out his duties, the likelihood of establishing that an act of violence fell within the broad scope of his employment is greater than it would be if he were not.
In Bernard v Attorney-General of Jamaica Mr Bernard had queued for some time at the Central Sorting Office in Kingston, Jamaica to make an overseas telephone call. Eventually his turn arrived, but an off duty police constable barged to the front of the queue, announced “police” and demanded the telephone. There was evidence that, in an emergency, it would be normal for a police officer to go to the head of the line and demand to use the telephone.
Mr Bernard did not give up the telephone and was slapped and pushed by the constable. Mr Bernard continued to resist. The constable took two steps back, pulled out his service revolver (which he was allowed to carry when off duty) and shot Mr Bernard in the head. Mr Bernard came to in the hospital to find himself surrounded by police constables, including the one who had shot him, who arrested him for assaulting a police officer and handcuffed him to the bed. The charges against Mr Bernard were later withdrawn.
Before Lister the claim brought by Mr Bernard alleging vicarious liability could only have failed. It could not have been said that the constable’s acts were a mode of carrying out his official duties.
However, applying Lister, vicarious liability was made out as the connection between the tort and the nature of the constable’s employment was sufficiently close. It was of prime importance that the shooting followed upon the constable’s announcement that he was a policeman and Mr Bernard was shot because he did not yield to that authority. Further, Mr Bernard’s subsequent arrest was retrospectant evidence which suggested that the constable had been purporting to act as a policeman.
The Board also attached weight to the risk created by the fact that constables were permitted to carry loaded service revolvers while off duty, although it was stressed that the mere use of a service revolver by a policeman would not, of itself, be sufficient to make the police authority vicariously liable.
A similar situation had arisen in Weir v Chief Constable of Merseyside. An off duty policeman unlawfully borrowed a marked police van to help his girlfriend move house. While the van was being unloaded, the policeman thought that Mr Weir had been going through some of his girlfriend’s belongings. The policeman identified himself as such and took Mr Weir into the van and assaulted him. The Chief Constable was vicariously liable for the assault. The policeman had been acting in his capacity as such at the time of the assault.
In Majrowski v Guy’s and St Thomas’s NHS Trust Mr Majrowski brought a claim against his employer for breach of statutory duty. He claimed that he had been unlawfully harassed by his departmental manager in breach of section 1 of the Protection from Harassment Act 1997 and that his employer was vicariously liable for this tort.
The harassment alleged was that his manager was excessively critical of his work and time-keeping, treated him less favourably than other members of staff, was rude to him, set unrealistic targets for his performance and threatened him with disciplinary action when he failed to achieve them. The judge struck out the claim as disclosing no reasonable cause of action.
The Court of Appeal held that, subject to the terms of the statutory duty in question, an employer can be held vicariously liable for a breach of statutory duty by his employee even when such a duty is not also cast on the employer if the broad test set out in Lister is met. The House of Lords has given the employer permission to appeal and that hearing is awaited.
Accordingly, the courts no longer approach the question of vicarious liability shackled by the traditional Salmond test of “in the course of employment”, but rather now apply a broader test of fairness and justice, turning on the sufficiency of the connection between the breach of duty and employment and/or whether the risk of such breach was one reasonably incidental to it. This shift undoubtedly assists claimants.
Unfortunately, however, the “close connection” test is rather a broad one, the application of which may be difficult to predict with confidence in borderline cases. But as Lord Nicholls observed in the Dubai Aluminium case “imprecision is inevitable given the infinite range of circumstances where the issue arises”.
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