Vicarious liability: recent case law developments
Vicarious liability means, in general terms in the context of employment, that an employer is liable for the torts (civil wrongs) of employees committed against third parties in the course of the employees’ employment. This general principle has given rise to a mass of decided case law, particularly with reference to the meaning of “course of employment”. A wrong falls within the scope of employment, as a general rule, if it is expressly or impliedly authorised by the employer or is an unauthorised way of doing something which is authorised, or is necessarily incidental to something which the employee is authorised to do.
The concept of vicarious liability is part of the general law of employment. It may be of crucial significance in the context of health and safety, where employees suffer injury because of the actions of other employees and seek compensation. The individual employee who caused the injury may not be worth claiming against, whereas an employing company may have greater resources.
Most recently, the Supreme Court has given judgment in a landmark case concerning this issue.
The new case is Catholic Child Welfare Society v Various Claimants and Institute of the Brothers of the Christian Schools [2012] UKSC 56. This was not directly an employment or health and safety case, but the Supreme Court took the opportunity to restate general principles of vicarious liability in relation to the employer/employee relationship.
The facts, in summary, were that the Institute of the Brothers of the Christian Schools ( IBCS) owned and managed schools in which its brothers taught. 170 men brought claims in respect of physical and sexual abuse allegedly suffered by them when they were residential pupils at St William’s between 1958 and 1992. In 1992 the management of St William’s was taken over by the Catholic Child Welfare Society. The main issue in the case was whether the IBCS and/or the managers of St William’s were vicariously liable for the acts of abuse. The Supreme Court, in giving judgment, set out its view of the general principles dealing with vicarious liability.
The decision of the Supreme Court was as follows: 1. The policy objective underlying vicarious liability is to ensure, so far as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability.
2. An employer will be liable when an employee commits a tort in the course of his employment. The policy reasons for this are:
(a) 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.
(b) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
(c) The employer’s activity is likely to be part of the business activity of the employer.
(d) The employer, by employing the employee to carry on the activity, will have created the risk of the tort being committed by the employee.
(e) The employee will, to a greater or lesser degree, have been under the control of the employer. The significance of control is that the employer can direct what the employee does, not how he does it.
3. The brother teachers were placed in the school to care for the educational and religious needs of vulnerable boys. Abusing the boys in their care was diametrically opposed to those objectives but that very fact was one of the factors that provided the necessary close connection between the brothers and IBCS which gave rise to vicarious liability. There was a very close connection between the brother teachers’ employment in the school and the sexual abuse that they committed.
Another recent example with unusual facts is the Scottish case of Vance v Bough (2008). B was employed as a storeman by North Lanarkshire Council. He was responsible for supplying municipal gardeners with weedkiller which contained paraquat. This was stored in a locked metal cabinet in a locked room in a locked building. B was a keyholder. He put some of the weedkiller into mineral water bottles to take home for use in his own garden. On the way home, he stopped in a club. The bag which contained the bottles became mixed up with bags belonging to F, who was also a member of the club. F drank from one of the bottles and died as a result. F’s children claimed compensation from the council on the basis that it was vicariously liable for B’s actions which were so closely connected with his employment that they fell within the scope of his employment.
The claim failed for a number of reasons, including the ruling by the Scottish court that the theft of the weedkiller by B was an act wholly outside the scope of his employment. Vicarious liability did not apply. Also, B’s theft was not something which the authority could have reasonably foreseen or prevented.
This issue was also considered by the Court of Appeal in the case of Gravil v Carroll (2008) where C was a semi-professional rugby player employed by a rugby club. During the course of a match, C punched G, a player on the opposite side, causing serious injury. G claimed compensation from C and from his club. The question for the court was whether the club was vicariously responsible for the consequences of C’s tort in injuring G.
The decision of the Court of Appeal was as followed:
1. An employer is vicariously liable for the torts of his employees committed in the course of their employment.
2. Where the wrongful conduct could fairly and properly be regarded as done while acting in the course of the employment, it would ordinarily be fair and just to hold the employer liable.
3. There was a close connection between the punch and C’s employment. He had been acting in the course of his employment.
4. The club was vicariously liable.