Vicarious Liability and Non-Delegable Duty

The general rule is that a party is liable to another only when they have acted, or omitted to act, in a way which is in breach of his duty of care. However, vicarious liability and non-delegable duties are exceptions to this rule so that a party may be liable for the breach of duty by another. This essay critically evaluates the doctrine of vicarious liability and non-delegable duty in light of the recent developments, especially in the case law of the Supreme Court. The courts have developed the law of vicarious liability and non-delegable duty to make the employer liable for the breach of his obligation irrespective of who has actually acted to breach duty.

Vicarious liability has been used to impute liability to the employer for the acts of the employee under certain circumstances. The justification for vicarious liability was noted in Majrowski v Guy’s and St Thomas’ NHS Trust on the basis of the control that is exercised by the employer over the employee’s actions, the fact that the employee’s wrongdoing is attributed to the fact that they were carrying out the employer’s activities, and the position of the employer to absorb the financial loss of a civil claim as compared to the employees’ ability to do the same.

In 2012, Lord Phillips had observed in a case that ‘the law of vicarious liability is on the move,’ thereby implying that the principles of the law are by no means settled and there is scope for further changes in the law of vicarious liability. One of the principal developments in the area of employer’s vicarious liability is with respect to the expansion of the scope of liability to include situations where the employee commits a breach of duty doing an action that is closely connected with their duties, then the employer can be found vicariously liable. The ‘close connection’ test was developed by the courts to make the employer vicariously liable for the torts of the employees where a close connection between the functions of the employee and the tort can be established. Historically the rule has been that the employer was not liable for the intentional wrongdoings as these were not in the course of ordinary employment. Thus, there is an expansion of the scope of vicarious liability. The expansion is also relevant to how courts have expanded the scope of employment relationship for the application of vicarious liability; for instance, it is considered to be important to establish a relationship of employment, but the Supreme Court has held that employers can be held to be vicariously liable even where there is an ‘employment like’ relationship without a contract of employment. It can be said that this expands the close connection test to include relationships that are like employment but are not employment as per contract.

The employer is liable for the breach of duty of its employer under certain circumstances. In that sense, the principle of vicarious liability can be used to make the employer liable for the tort of the employee. In Catholic Child Welfare Society v Various Claimants and Institute of the Brothers of the Christian Schools, the Supreme Court held that there is a need to identify fair, just and reasonable policy reasons to impose vicarious liability; in this case, the court ruled that the employer is expected to be insured against liability and that it is more likely than the employer would have the means to compensate the victim rather than the employee. The court also emphasised on the concept of "enterprise risk".

In Mohamud v WM Morrison Supermarkets plc, the Supreme Court observed that the question of employer’s vicariously liability involves the consideration of two matters, which are related to the functions entrusted by the employer to the employee and the sufficient connection between the employee’s position and his wrongful conduct, which justifies the employer to be made vicariously liable for the tort of the employee. In WM Morrison Supermarkets plc (Appellant) v Various Claimants, the Supreme Court once again reiterated the principles of employer’s vicarious liability for the breach of duty by the employee in a situation involving the senior auditor employed by Morrisons who downloaded the personnel files of 126,000 employees and uploaded it to an internet file sharing site. This led to the claims vicarious liability of Morrisons for the breach of statutory duty under s4(4) of the Data Protection Act 1988, misuse of private information, and breach of confidence by the auditor employed by Morrisons. The court of first instance and the Court of Appeal held Morrisons to be vicariously liable; in the Supreme Court judgment written by Lord Reed, his Lordship held that reasoning of Lord Toulson in Mohamud was misunderstood by the Court of Appeal. Instead, Lord Reed cited the judgment of Lord Nicholls in Dubai Aluminium Co Ltd v Salaam with approval, reiterating the close connection test. With regard to the need to decide the employer liability “fairly and properly”, Lord Reed held that judges should identify the factors or principles which point towards or away from vicarious liability and which explain why it should or should not be imposed. In this case, the Supreme Court held that as the employee was not engaged in furthering his employer's business when he committed the wrongdoing in question, his wrongful conduct was not so closely connected with acts which he was authorised to do and so Morrison’s liability does not arise.

Morrison can be contrasted with the judgment in Lister v Hesley Hall Ltd, in which the warden of a boarding house sexually abused boarding house pupils, and the House of Lords held that it was fair and just to hold the employer vicariously liable because his actions were closely connected with his employment. Similarly, in Maga, the Church was held vicariously liable for the actions of its priest in sexually abusing a boy. In Mattis v Pollock, the nightclub employer was held vicariously liable for the doorman’s actions in injuring a guest due to a close connection between the functions of the doorman (keeping a check on the guests) and the violent actions. In Dubai Aluminium case, the co-partners in the firm were held vicariously liable for the fraudulent behaviour of one partner. In some of these cases, particularly Lister and Maga, an approach is taken to hold the employer liable for the actions of the agent even when the agent was not furthering the business of the employer.

The issue of non-delegable duty arises in cases of independent contractors being employed for the commission of certain acts on the behalf of the employer; generally, the principal is not liable if the delegation of the duty is proper. However, in certain cases, delegation will not prevent the employer from being liable. For example, with regard to duty of care to the employees, these are non-delegable duties, and the employer will be liable for the breach of such duty. It then becomes irrelevant whether the duty is performed by the employer personally or through someone else for the employer to be held liable for the same. Woodland v Swimming Teachers’ Association is significant judgment of the court in which the court explained the scope of non-delegable duty. The judgment of Lord Sumption clarifies that although there is no single theory to explain when or why non-delegable duties exist, there are two broad categories under which these duties can fall: engagement of a contractor to perform an “inherently hazardous” or “extra-hazardous” activity or operation. For the application of the latter type (extra hazardous activity), there should be an antecedent relationship between the defendant and the claimant and a personal duty on the part of the defendant. Thus, there is a principle of law that if the extent duty or obligation is identified then the person accused of a breach cannot escape liability because he has employed another person, and it is in this principle that is applicable in the case of non delegable duty.

To conclude this essay, although the general principle is that one is liable for one’s breach of duty of care, the employer’s liability will extend to the breach of duty of care by the employee in case of vicarious liability. Furthermore, the employer cannot escape liability where the extent of the obligation is known. In such cases, the employer cannot escape liability by delegated his duties. In some cases, duties are non-delegable and the employer will not be able to escape liability in such cases.

Books

Howarth D et al, Hepple and Matthews' Tort Law: Cases and Materials (Bloomsbury Publishing, 2016).

Lunney M and K Oliphant, Tort Law: Text and Materials (Oxford: Oxford University Press 2013).

Journals

Weitzman A, ‘No Fault liability and private health providers’ (2019) 2 J.P.I. Law 91.

Neild D, ‘Vicarious Liability And The Employment Rationale’ (2013) 44 VUWLR 713.

Continue your journey with our comprehensive guide to Understanding the Common Law System and Tort of Negligence in England and Wales.