Vicarious liability – what is it and can I claim?

Simply put, vicarious liability is the liability of a party for the acts and/or omissions of another party. The most common claims under vicarious liability are against employers where their employee has been negligent, and as a result, someone has sustained injury.

However, in modern times, the working relationship is not always as simple as employer/employee as many people tend to be self-employed, independent contractors or consultants.

The two pillars in determining whether vicarious liability arises concern the nature of the relationship between parties and the behaviour of carrying out work. That is to say, is it fair, just and reasonable to impose vicarious liability and was the negligent act so closely connected with the work assigned to the wrongdoer.

Nature of the Relationship

In recent years there have been a number of high profile cases before the courts relating to historic sexual abuse against members of religious orders and teachers of boarding schools e.g. AB v The English Province of the Congregation of Christian Brothers [2022] SC EDIN 7 and JXJ v The Province of Great Britain of the Institute of the Christian Schools [2020] EWHC 1914 (QB).

Standard tests for ‘employment’ in its simplest form against members of religious orders would tend to find that the individual who has caused injury due to negligence was not an employee as such. The ‘akin to employment’ test sought to remedy this issue, bringing about the inclusion of relationships comparable to that of employment.

The law has developed and moved beyond the narrow scope of a ‘contract of employment’ and now there can be arguments for vicarious liability to arise in relation to negligence by an individual who would be regarded as self-employed or an independent contractor, e.g. Grubb v Shannon [2018] SC GLA 13. however, remains somewhat limited in its scope.

Behaviour Involved

The question under this pillar is whether the behaviour of an employee is closely connected to what they were employed to do. Where there is an adequate link between the position in which an individual is employed and the negligent behaviour, this should be sufficient for the courts to find that vicarious liability arises.

However, cases involving intentional negligent behaviour can be challenging with the argument being that negligent or wrongful conduct is not closely connected with the acts that an individual was authorised to do, and so cannot be deemed to have been carried out in the course of their employment. Nevertheless, even where an employee does not act within the scope of his employment, the courts have found vicarious liability to arise e.g. Mohamud v WM Morrison Supermarkets [2016] AC 667. This case involved an unprovoked racist assault on a motorist by the attendant of a petrol station.

Conclusion

There are myriad possibilities where vicarious liability can arise, albeit some harder to prove than others based on the facts of each individual case.

If you have been involved in an accident due to the negligence of a colleague or tradesman, contact Harper Macleod as soon as possible and our personal injury team will investigate and provide you with specialist advice in making a claim.