Recent decisions on vicarious liability

Justin Clayden discusses various recent decisions on vicarious liability.

In the last year there have been a number of reported decisions touching on aspects of vicarious liability that are helpful reminders of the relevant principles of vicarious liability, and the extent to which those principles have been broadened in recent years from the original tortious liability of a master for his servant/employee into more extended fields.

The principle of vicarious liability was originally described by Salmond as a wrongful act by a servant in the course of his employment as “either (a) a wrongful act authorised by the master or (b) a wrongful or unauthorised mode of doing some act authorised by the master, if they are so connected with acts which he has authorised that they might rightly be regarded as modes –although improper modes of doing them”.

The earlier principles of the liability of an employer for the acts of the employee have been developed since then; in Cox-v- Ministry [1]of Justice the Court of Appeal found that the strict master and servant relationship was not required; the relationship had to be akin to employment. In that case the relationship between the Ministry of Justice and a prisoner (that caused the accident to Ms Cox) working in a prison kitchen was found to meet those criteria.

The principle also extended to the situation of unincorporated associations in Various Claimants v Institute of the Brothers of Christian Schools [2] where the defendant was found vicariously liable for the sexual assault of one its headmaster bothers.

The decision in Lister & Others v Hesley Hall Ltd [3] found that the sexual abuse of the housemaster was so closely connected to the activities delegated to him that it established the necessary proximity for a finding of vicarious liability and commented on the foreseeable risk of assaults on the pupils by employing the housemaster.

More recent cases have seen an aggressive overenthusiastic and unlicensed bouncer at a nightclub making his employer responsible for his assaults on members of the public, and also petrol attendants in altercations with members of the public. In David Wilson Mattis v Gerrard Pollock (t/a Flamingo’s Nightclub)[4], the owner of a nightclub was found liable on appeal for the assault by the irate nightclub bouncer who, having lost out in an altercation while at work went home and returned armed with a knife and carried out a further assault.

The principles of vicarious liability have been found to turn around two issues: firstly, the nature of the functions or field of activities entrusted by the employer to the employee, and secondly the extent to which there is sufficient connection between the employee’s position and the wrongful conduct to justify making the employer liable. In short, it is the evaluative analysis of the close connection between the two.

The development of the principle can be seen by the contrasting outcomes of two assaults that were carried out by petrol pump attendants (Warren –v- Henleys[5]  and  Ahmed Mohamud –v- Wm Morrison Supermarkets Plc[6]. In Warren, an assault occurred when the affronted customer returned to the garage with a policeman, but the assault was found to be separate from the employee’s work and the principle did not apply. In Mohamud it was suggested that the attendant in Warren had metaphoricially taken off his work jacket; not so in Mohamud. In the former the later assault by the attendant was found not to have been so closely connected; in Mohamud the assault was so closely undertaken to his work that it was.

The Court of Appeal decision In Clive Bellman LJ  v Northampton Recuitment Ltd[7]specifically questioned whether the time gap between employment work and the incident should be identified as the key factor (and possibly the court had given too much emphasis on this in Warren.

Bellman concerned the late night serious assault by the managing director of the defendant recruitment agency at the end of a Christmas party and further drinking at a hotel after a furious row regarding a work issue. While stressing that the circumstances of the case were exceptional, the Court of Appeal concluded that the assault was found to be sufficiently closely connected to an exercise of authority by the director to allow a finding of vicarious liability.

Anderson v Wm Morrison Supermarkets[8] involved the attempted disclosure by a disgruntled accounts employee of payroll details of Morrison’s employees to national newspapers. Much of the judgment turns on the impact of the offence under the Data Protection Act 1998 (by the employee, rather than Morrisons) and whether the wording of the statute prevented any claim of vicarious liability (it did not).

The employee copied the payroll details during work, but he sent the information to national newspapers outside work hours some months later from home. It was argued that there was a key time gap between his actions at work and the subsequent disclosure. The court however found that there was a “seamless and continuous sequence”. His offence occurred when he copied the details and the tortious acts of the employee were within the field of activities assigned to him by Morrisons.

The decisions do not however all point one way. The background to the decision in Adam Anderson & Others v Sense Network Ltd[9] involved claims by out of pocket investors affected by a Ponzi style scam by Midas, one of Sense’s appointed network of representatives that were supervised for regulatory compliance purposes by a nominated officer. The claimants argued amongst other points that Sense were vicariously liable for the actions of Midas’s team of financial advisers. However, the court held that the financial advisers were not employees of Sense; the failed scheme had been in existence before Midas joined the Sense network and, furthermore, the scheme itself was kept deliberately secret and separate from Sense. There was no sufficiently close connection between the two.

Similarly in November last year the High Court found in Sally Brayshaw v Partners of Aspley Surgery and others [10] that the defendant GP practice was not vicariously liable for the actions of a locum GP who encouraged the claimant to become involved in the GP’s faith, church and Christian practices with adverse health consequences (including, unusually, a phobia of owls). While the claimant and GP may have met through the defendant’s surgery, it could not be said that GP’s activity was part of the surgery’s business, nor that by appointing the GP, the surgery had  created or enhanced the risk of negligence being committed by him.

The original principles of vicarious liability have developed from the strict master servant relationship to include instances where the tortfeasor is not a “pure” employee. Further, the actions of the “employee” are viewed in a broader context so that these are not simply the authorised actions of the servant done badly but rather an evaluative analysis to ascertain whether there was a sufficiently close relationship (both in time and activity) to justify attributing the torts of the employee to the employer.



[1] [2016] UKSC 10

[2] [2012] UKSC 56

[3] [2001] UKHL 22

[4] [2004] 4 All ER 85

[5] [1948] 2 All ER 935

[6] [2014] 2 All ER 990

[7] [2018] EWCA Civ 2214

[8] [2018] EWCA Civ 2339

[9] [2018] EWHC 2834 (Comm)

[10] [2018] EWHC 3286

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