The issue when and how someone (usually an employer) is vicariously liable for acts of others has been considered in three recent cases. Three recent cases give different results.
VICARIOUS LIABILITY FOR A PRISONER WORKING IN PRISON
Cox –v- Ministry of Justice  EWCA Civ 132.
THE FACTS IN COX
The claimant provided catering services to HM Prison Swansea. Whilst working at the prison she was injured by the negligence of a prisoner carrying out paid work under her supervision. The key issue was whether the prison service were liable for the acts of the prisoner even though there was no typical employment relationship.
THE TEST FOR VICARIOUS LIABILITY
The Court of Appeal confirmed that the law of vicarious liability has moved beyond the confines of a contract of service and that “the test of vicarious liability involved a synthesis of two stages”.
(1) The first stage is to consider the relationship between the wrongdoer and the person or company alleged to be liable.
(2) The Second state is to consider the connection that links that relationship and the act or omission of the wrongdoer.
THE ESSENTIAL ELEMENTS OF THE RELATIONSHIP
McCombe LJ cited the essential elements of a relationship which usually makes it just, fair and reasonable to impose vicarious liability on an employer, as outlined in Various Claimants v Catholic Child Welfare Society and Ors  2 AC 1.
“(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) the employee’s activity is likely to be part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
(v) the employee will, to a greater or lesser degree, have been under the control of the employer”
The Court of Appeal concluded that the prison service was vicariously liable for the actions of the prisoner, even though they had a duty to provide him with work and it was not a typical employment relationship
“45. The work carried out by the prisoners in the present case relieved the Respondent from engaging employees at market rates of pay and with all the concomitants of an employment relationship. The work was clearly done on the Respondent’s behalf and for its benefit or as the judge put it to “defray…the expense to the state caused by prisons”. Departing from the judge, however, I think that the feeding of the prisoners and the procurement of supplies for that purpose was clearly part of the venture, enterprise or “business” (if you will) of the Respondent in running the prison.”
MOHAMUD AND ASSAULTING A CUSTOMER
The second recent case of Mohamud v WM Morrison Supermarkets PLC  EWCA Civ 116 considered the issue of whether employers will be held vicariously liable for the violent acts of their employees during work time.
This case arose out of an incident at the Defendant’s petrol station kiosk. On the day of the incident a sales assistant began assaulting and abusing a customer for no reason.
THE CORRECT TEST
They confirmed that the test which should be applied when considering whether an employees behaviour falls within the scope of vicarious liability is the test set out in Lister v Hesley Hall Ltd  UKHL 22 and what has to be asked is whether the wrongdoer’s actions were so closely connected with his employment that it would be fair and just to hold his employers liable.
THE COURT’S CONCLUSION
The Court of Appeal found that the fact that a sales assistant was required to interact with customers in the course of his employment was not, of itself, sufficient to make his employer vicariously liable for any assault he might inflict on a customer.
“46. The authorities from Lister onwards make clear that very careful attention must be given to the closeness of the connection between the tort of the employee and the duties he is employed to perform viewed in the round. In my judgment, the cases cited earlier in this judgment show that the mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient. They demonstrate that some factor or feature going beyond interaction between the employee and the victim is required. The decided cases have examined the question of close connection by reference to factors such as the granting of authority, the furtherance of an employer’s aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring.
47. These different approaches represent different ways of asking and answering the key question as to the closeness of connection. I would not regard them as exhaustive, but as illustrative of the focus which needs to be brought.”
WHEN AN EMPLOYEE IS NOT AT WORK: WEDDELL
This issue was considered in the third case of Weddall v Barchester Healthcare Ltd  EWCA Civ 25. The claimant brought a claim against his employees after he had been attacked by another employee, who was not at work at the time. The assailant had cycled into work following a request that he work an additional night shift.
The Court found that
“The violence was the employee’s response to a routine and proper request that he volunteer for a night shift. When he received the request, Marsh was at home. He got on his bicycle, in a drunken state, and rode to the workplace with the purpose of inflicting serious violence on Weddall. He attacked Weddall twenty minutes after receiving the request.
45. That was an independent venture of Marsh’s own, separate and distinct from Marsh’s employment as a Senior Health Assistant at a care home. As the judge put it, Marsh was “acting personally for his own reasons”. The instruction, or request as in fact it was, was no more than a pretext for an act of violence unconnected with work as a health assistant. It is of no relevance to what actually happened that Marsh did from time to time have to exert moderate force upon residents at the home, or that he had been trained how to do so. The context is different, as are the facts, from those in Mattis
46. This case is far from the use of modest force by way of spontaneous reaction to an instruction at the workplace, which I have found a much more difficult issue. It is of course an irony that it is the outrageousness of Marsh’s conduct that deprives Weddall of a remedy against his employer but the doctrine of vicarious liability, which is policy based, must be kept within limits.”
Therefore the Defendant was not held be vicariously liable.
SUMMARY AND PRACTICAL IMPLICATIONS
- The law on vicarious liability is far from straightforward; its scope has expanded past traditional employment relationships.
- It is important for litigators to be aware of the principles underpinning vicarious liability and the tests that will be applied by the courts.
- When considering a case of vicarious liability and before issuing proceedings it is important to ask the following questions :
(1) Is the relationship between the wrongdoer and the defendant akin to an employment relationship? (Consider the business activity of the defendant, the tasks undertaken by the wrongdoer and the elements of control in the relationship)
(2) Is a court likely to find that the Defendant is vicariously liable for the specific behaviour or action of the wrongdoer? Although this is often dependent on the specific facts of the case there are a number of examples in the case law; parallels can often be drawn.
(3) Remember employers will not be vicariously liable for all the acts of their employees. The action and the duties of the employee must be closely connected.
REMEMBER YOU CAN ALWAYS SUE THE PERSON DIRECTLY RESPONSIBLE
In many cases it is not practical to pursue the negligent person directly as they have no money or assets. However have a careful look at the blogpost on suing a man of straw. A careful solicitor would advise their clients to check their own home insurance. Surprisingly many people have insurance which covers them against unsatisfied judgments in personal injury cases.