Scope and impact of vicarious liability
Produced in partnership with Andrew Wilson

The following PI & Clinical Negligence practice note produced in partnership with Andrew Wilson provides comprehensive and up to date legal information covering:

  • Scope and impact of vicarious liability
  • Employees, workers, contractors and others
  • Liability for independent contractors
  • Borrowed employees
  • Incidents outside work hours
  • Deviation from normal tasks
  • Exclusion of liability
  • Indemnity from the negligent employee

Scope and impact of vicarious liability

Employees, workers, contractors and others

In Various Claimants v Catholic Child Welfare Society, Lord Phillips famously stated at para [19]:

‘The law of vicarious liability is on the move.’

The relationship that will most often give rise to vicarious liability is that of employer and employee under a contract of employment. It appears that such a relationship will be assumed to be sufficient to satisfy the first stage of the following two-stage test:

  1. stage 1—the relationship between the individual tortfeasor and the defendant is one that is capable of giving rise to vicarious liability

  2. stage 2—there was a sufficient connection between the act or omissions of the tortfeasor and the relationship (ie between the tortfeasor and the defendant) to justify a finding of vicarious liability

With regard to the first stage of the test, vicarious liability is not confined to employment or business relationships or to where a contract of employment exists. It can arise where the relationship is ‘sufficiently akin’ to that of employment.

Vicarious liability can therefore apply where the relationship has certain characteristics similar to those found in employment.

Further, the defendant need not be carrying on activities of a commercial nature.

Vicarious liability has arisen in the following scenarios:

  1. a bishop was liable for the abuse committed by a priest—it was not an employment or a contractual relationship but it was sufficiently

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