Vicarious Liability – Back to the Future

Since the turn of the century there have been few more contentious issues than vicarious liability for intentional torts. In the last 25 years, there have been 13 occasions on which the House of Lords, the Privy Council or the Supreme Court have considered the issue. Until 2017 the results followed a highly predictable pattern: the injured claimant would almost always succeed. Since then, however, the tide appears to have turned: recent decisions of the Supreme Court have all left defendants victorious.

In Lister v Hesley Hall [2002] 1 AC 215 and Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 the House of Lords confirmed that the test for determining whether an employer should be vicariously liable for the tort of an employee first set out in Salmond, Law of Torts 1st Ed (1907) required revision. The ‘close connection test’ was introduced. This required the court to consider whether the wrongful conduct was so closely connected with acts the employee was authorised to do that the conduct might fairly and properly be regarded as being done in the ordinary course of the employee’s employment.

However, as Lord Nicholls presciently observed in Dubai whilst the close connection test ‘focusses attention in the right direction … It affords no guidance on the type of connection which will normally be regarded as sufficiently close to prompt the legal conclusion … that the risk should fall on the employer rather than the third party’. A test that required a close connection but provided no guidance as to how close was close enough, was always likely to prove problematic.

A number of principles nevertheless emerged. It was stressed that merely providing an employee with the opportunity to commit a tort would not be sufficient to give rise to vicarious liability. Consequently, the fact that a tort occurred at on work premises or during working hours would not by itself to satisfy the test. Some other connecting factor would be required.

The test is often held to be satisfied when the tortfeasor has been attempting to further the interests of defendant, or if the nature of the work involved a predictable degree of violence or friction (which often proved problematic for the employers of bouncers and rugby-players, see Mattis v Pollock [2003] 1 WLR 2158 and Gravil v Redruth Rugby Football Club Ltd [2008] ICR 1222) or if the claimant was in a position of particular vulnerability in relation to the tortfeasor (for example children and teachers as in Lister).

Conversely, cases involving horseplay, private vendettas or random incidents of violence (see Vaickuviene v J Sainsbury PLC [2013] CSIH 67) frequently do not result in findings of vicarious liability, even when the tortfeasor is the line manager of the claimant (Wilson v Exel [2010] CSIH 35) on the grounds that the tortfeasor, to use the oft-repeated phrase, is ‘on a frolic of his own’.

The courts have, however, consistently stressed, that it is no defence to say that a tortfeasor conduct was not merely tortious but criminal, or that he was acting exclusively for his own benefit or that he was acting contrary to express instructions or that his conduct was the very negation of his employers duty (per Lord Millett in Lister at §79).

The period between 2012 and 2018 marked the high-water mark for claimants. In Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25, the Court of Appeal held that an employer was vicariously liable when factory worker punched his boss after he had been given an instruction, on the grounds that the possibility of friction was inherent in a factory where instant instructions and quick reactions were required.

Then in Mohamud v WM Morrison Supermarkets PLC [2016] AC 677 Lord Toulson, citing the reasoning of Sir John Holt CJ (a judge previously best known for his decisions on witchcraft in the seventeenth century), concluded that the Court should be focused not on the ‘acts the tortfeasor was authorised to do’ (as articulated in Dubai), but on the ‘field of activities’ that had been entrusted by the employer to the employee. It was widely assumed at the time that this constituted a significant expansion of the boundaries of vicarious liability.

Mohamud was followed by decisions such as Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214 in which the Court of Appeal held that an assault by a managing director on an employee at a Christmas party was sufficiently connected to his ‘field of activities’ to render the employer company vicariously liable.

More recently, however, the tide has perceptibly turned. In Various Claimants v WM Morrison Supermarkets PLC [2020] UKSC 12 Lord Reed clarified that the test remained as set out in Dubai and that Lord Toulson’s judgment in Mohamud was not intended to effect any change in the law.

This position was re-affirmed by the Supreme Court in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] ICR 888, in which it was held that an elder’s wrongful conduct in raping a member of the congregation was not so closely connected with acts that he had been authorised to do that it could fairly and properly be regarded as having been done by him while acting in the course of his quasi employment.

Similarly, in S v Magiboards Ltd [2025] EWHC 2025 a claim by an employee who was attacked by a fellow worker after failing to turn off his radio also failed.

The sheer number of appellate decisions has undoubtedly left the law in this area somewhat opaque. However, recent authorities do suggest that the Supreme Court is now adopting a narrower approach to the doctrine of vicarious liability than in the years following Lister and Dubai. As Lord Neuberger made clear in Maga v Archbishop of Birmingham [2010] 1 WLR ‘the court should not be too ready to impose vicarious liability on a defendant. It is after all, a type of liability for tort which involves no fault on the part of the defendant, and for that reason alone is application should be reasonably circumscribed’.

Roger Harris practises in the fields of personal injury and clinical negligence. He is regularly instructed in cases involving vicarious liability. He appeared in the Supreme Court in Mohamud, in the Court of Appeal in Mattis v Pollock and was counsel for the defendant in S v Magiboards. He is head of the 2 Temple Gardens Personal Injury Group.