Commercial Disputes
By Conal McGarrity
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Vicarious Liability- Providing a Deeper Understanding of the Employment Relationship

What is Vicarious Liability?

Vicarious liability is a civil tort and arises mostly in the relationship between an employer and employee. It occurs when an employee commits a tort, known as a negligent act or civil wrong, against another third party during the course of his employment or carrying out his working duties. When this happens, the employer is often held to be vicariously liable to the third party instead of the employee. The claim is then between the third party who was injured and the employer.

The act committed by the employee against the third party is usually authorised by the employer, which is why the employer is usually fully liable. An employer is the individual or organisation who the employee works for. The employer provides and controls the work provided to the employee, and usually pays them a wage for the work that is performed.

What are the Elements of Vicarious Liability?

There are three main elements which must be met in order to establish and satisfy vicarious liability.

  1. A relationship of employment between the tortfeasor and defendant

  2. Commission of a tort- usually negligence or battery

  3. Which occurs in the course of employment or part of a business activity.

Employee vs Independent Contractor

The employer is only responsible for the tortious acts of his employee, and not an independent contractor. Therefore, it is essential to distinguish between the two.


An employee is an individual who contracts to perform work or duties for another individual or organisation. An identifiable characteristic of the employer is that they have an element of control over the work that is done and how it should be performed rather than telling the employee simply the task that is to be performed. The method is chosen, and so the employer stipulates an element of control.

An employee integrates into the business with the possibility of profit sharing and is paid a regular wage. They are usually supplied with tools, unform, or vehicle. They also have to show up at a regular time and place.

Independent Contractor

An independent contractor usually has no interest in the employer’s business and is paid by the job done. He usually supplies his own tools, uniform, or vehicle, and determines is own hours and methods.

When is an Employer Not Vicariously Liable?

Sometimes vicariously liability will not arise when the employee was carless or if he had a motive. An employee can be held to be outside the scope of his employment if he was acting deliberately or in a way that was prohibited by his employer. Here it can be useful to ask ‘what was the worker employed to do,’ versus what was done.

Diversions and detours known as ‘frolics’ are outside the course of employment, and the employer will not be held responsible if the employee is on a frolic of his own. This can possibly include travelling to and from work.

In the case of N v Chief Constable of Merseyside Police, the Court held the Constable was not vicariously liable for an assault carried out by their employee, a policeman. The policeman simply used his position to conduct an assault, known as a ‘frolic’ in this situation. It was held the actions of the policeman were not closely related to his employment, and vicarious liability could therefore not be imposed on his employer. Although this is an example of a case involving vicarious liability and the police, the general vicariously liability principles are relevant for all employer and employee relationships.


When an employer has paid damages to the third party, he can seek reimbursement from the employee he was acting outside the scope of his employment or showcasing misconduct. This was the case in Lister v Romford Ice, where the employer was held to be entitled to reimbursement from his negligent employee for damages he paid to the injured third party. The indemnity will be an option and pursued only in exceptional cases of purposeful misconduct or collusion.

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