Imagine being held liable for an act that you never committed, an act that you were never even in the vicinity of or never even thought of committing. It would be unjust, unfair and complete against what we believe the law to be. And yet, this is completely possible under the doctrine of vicarious liability.
But it is easy to forget the law is not rigid and unbending, it’s the rules created by humans for humans. Law is fluid but firm.
What is Vicarious Liability?
Vicarious Liability is tricky to define. Simply put, it’s a mechanism through which another person will be held liable for the actions of the tortfeasor, i.e, the person who has committed the act which would result in a claim. The approach of this doctrine has been social convenience and rough justice (Imperial Chemical Industries Ltd V Shatwell  at 685).
For the purposes of this article, I will talk only about vicarious liability in tort law.
Vicarious liability is usually claimed against employers for the actions of their employees. For, example, X is an employee of Y. X, one day, commits a tort against the customer (the claimant) due to their negligence. Now, if we are looking for negligence, the ordinary route would be to claim damages from X, who would become our defendant in the case.
But the claimant may very well choose to use vicarious liability to claim damages. Now, the defendant will the employer, Y.
This may seem unfair. Why should the employer be held responsible for an act that he did not commit? But there have been many justifications for this area of law.
Justifications of Vicarious liability:
Lord Phillips justified the reasons for Vicarious liability in the controversial case of Various Claimants v Catholic Child Welfare Society and others .
1. The employer is likely to be in a position to compensate the claimant.
This will mean that it would be easier to claim damages from the employer because they are likely to have the funds to compensate the claimant. Imagine, you get hurt due to the negligence of a person working in a chain restaurant. Would it seem logical to claim for damages from a mere employee who doesn’t have that kind of money? Instead, we turn to the employer.
2. The action was committed as a result of the activity untaken by the employee on behalf of the employer or as part of the business of the employer.
The person who committed the tort was acting on behalf of the employer in the work setting; not of their own accord. The tortfeasor was committing an act which led to the harm that was meant to be under his employment duties, not because he wished to do that.
3. The employer by employing the employee has taken the risk of harm occurring and so, as they either gain a benefit from that risk or because of their role in creating it, they should bear responsibility should the risk materialize.
The employer is responsible for the employer’s action because they put the employer in that place and at that time. They basically created the setting for a risk; unknowingly or knowingly.
4. The employee will have been under the control of their employers.
Employers will have some ‘control’ over their employees. Of course, some could claim that in an era wherein initiative and independent thinking is not only appreciated but demanded, it would seem somewhat old-fashioned to think so.
But these justifications are just that, a means to justify the somewhat unfair result of this area of law. The biggest reason for claiming vicarious liability will remain that the person who has the funds to pay, should pay.
These justifications may still seem wrong and unreasonable. But perhaps, it would help to think of this law in an analogy. This analogy was provided by Robert Stevens (Torts and Rights (OUP, 2007) pp 257-74); we are to think of vicarious liability in relation to companies. Companies can only be run through humans. So, if there is something done wrong by the company, would we not hold the person in charge responsible? We would attribute that wrongful act to the person responsible, and in a similar way, the employees’ actions are attributed to the employers. This would fit well with the justification presented by Lord Phillips.
The requirements for an actionable claim.
There are two stages for an actionable claim in vicarious liability:
1. There is an employer-employee relationship, or one akin to employment, between the defendant and the tortfeasor.
2. The tortfeasor committed the harmful act while acting in the course of their employment. (Horsey and Rackley, 2019)
It is important that there is a relationship of employer-employee or something akin to it between the defendant and the person who committed the wrongful act. It is vital for the courts to determine the relationship is that of an employer-employer or something akin to it. It is not so easy to establish this as one would think.
Traditionally, control was one of the most significant factors when deciding the relationship status between the parties. But English courts have realized that this is not enough. Now various factors such as the extent of how much the worker is managed by the employer, the integration of their activities in the employment, etc. (Horsey and Rackley, 2019).
In Indian law, the position is similar; courts have realized that it would not be sensible to use control as a sole factor. This was proved as much in the case of Dharangadhara Chemical Works Ltd. v State of Saurashtra, wherein the Supreme Court agreed that the determination of the relationship is a pure question of fact. They referred to the quote from Lord Thwart in the case of Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd and another:
“The proper test is whether or not the hirer had the authority to control the manner of execution of the act in question. The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition.”
It is essential that the tort occurred during the course of employment. If the harmful act occurred outside the employment, then the employer cannot be held liable for the actions of the tortfeasor. This would beg the question of what is ‘course of employment’? In English law, This would be decided by the courts on basis of a ‘close connection’ test, set out in the case of Lister v Hesley Hall Ltd .
In Lister, a warden of a resident facility attached to a school which specialized in teaching children with emotional and behavioural difficulties was found to have been systematically sexually abusing a number of boys over the course of 4 years. The question for the House of Lords had been whether the employers could be vicariously held liable for the actions of the warden? The claimants had declared that the employers had been negligent in their care of selection and control of warden. The House of Lords agreed that the actions of the warden were so ‘closely connected’ with his employment that it would be fair and just to hold the employers responsible.
The case of Mohamud v WM Morrison Supermarkets plc  is a helpful case in determining what exactly the courts would decide should be considered as a ‘close connection’.
In brief, the facts are that a petrol station attendant assaulted a customer on a racially discriminatory basis while at work. It was important to determine how ‘closely connected’ the actions of the tortfeasor had been to his employment duties. Lord Steyn made his reasons clear in the cases in paragraphs 47 and 48 of the judgement put forth by the Supreme Court.
“In the present case, it was Mr Khan’s job to attend to customers and to respond to their inquiries. His conduct in answering the claimant’s request in a foul-mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter was an unbroken sequence of events. It was argued by the respondent and accepted by the judge that there ceased to be any significant connection between Mr Khan’s employment and his behaviour towards the claimant when he came out from behind the counter and followed the claimant onto the forecourt.
I disagree for two reasons. First, I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant. It was a seamless episode. Secondly, when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to the petrol station. This was not something personal between them; it was an order to keep away from his employer’s premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer’s business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.
Mr Khan’s motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer’s business, but that is neither here nor there.”
Some would argue that the ‘close connection’ test is vastly problematic. And after the decision in Mohamud, it seems that the courts are ready to apply the test very liberally and mostly for policy reasons. Most would say that the doctrine in and of itself is flawed.
The problems lie in the fact that if the doctrine is to be decided on policy reasons, then the legal certainty becomes elusive; the following precedence and maintaining the consistency of law becomes harder. The understanding of the doctrine has been rocky at best and with the current expansion, it would not be presumptuous to say that the courts might introduce a “no-fault liability” as said by Claire Mclvor, in her article titled “The use and abuse of the Doctrine of Vicarious Liability” ((2006) 35 CLWR 268). This would be troublesome as the law is meant to delegate justice and holding a person liable for something he has not done is anything but just.