Vicarious liability: a year in review
Jessica Smith looks at the future of vicarious liability in tort law
2022 established some consistency in the previously turbulent area of vicarious liability. The doctrine of vicarious liability had expanded greatly to cover not only employee relationships but also misconduct, and that expansion led to confusion. Prior to 2020, vicarious liability was on an unknown trajectory, causing concerns about risk assessing and civil claims among employers and their insurers and leading to practitioners unable to predict prospects of success at trial. Fast forward to 2022, and we are now seeing the limits the courts are placing on the remit of when vicarious liability will be established. The catalyst for this was arguably the case of Chell v Tarmac Cement and Lime Limited  EWCA Civ 7, heard in January of last year.
Vicarious liability and horseplay
In Chell v Tarmac Cement and Lime Limited  EWCA Civ 7, the Court of Appeal had an opportunity to set clear boundaries in determining how far vicarious liability should extend. A practical joke at work gone wrong led to a contractor from Roltech Engineering (the claimant Mr Chell) being left with noise-induced hearing loss and tinnitus. The defendant’s employee (H) had used a hammer to strike a pellet gun target near to the claimant’s ear. At the time the practical joke took place, tensions were rising between the defendant’s company employees and Roltech Engineering Limited (the claimant’s employer). Concerns were raised that Roltech employees would take over the work from the defendant’s staff already employed. This led to rivalries between the two groups of employees and an employee of the defendant’s decided to play a joke on the claimant. The pellet gun target had been brought in off-site and was used in conjunction with a hammer provided for work close to the claimant’s ear which caused a loud sound to erupt, perforating the claimant’s eardrum.
- The claimant alleged the defendant, as the employer, was vicariously liable for the actions of their employee, H, that caused his injury. His claim was dismissed at first instance, due to the actions of H not being reasonably foreseeable by the defendant. The claimant then turned to the Court of Appeal.
- In order for liability to be found, it had to be shown there was a close relationship between the employee H and the defendant and a sufficient connection between that relationship and the act which caused the injury. The first requirement was simple – and was not controversial; the dispute arose in this case regarding the connection between H’s practical joke and the relationship with the defendant.
- It was held by the Court of Appeal that, as the act was a practical joke, there could not be a sufficient connection between the actions of the employee and the potential risks that could be found in the workplace. The Court of Appeal held that among other things, it was not part of the employee’s role to use the pellet gun and the risk created was not attributable to the business. The Appeal was subsequently dismissed.
Although a unique set of circumstances, this case limited the scope for vicarious liability and distinguished the actions that should be reasonably foreseen by employers, with those that are just horseplay. It reenforces the crux of vicarious liability boils down to two questions. Was there a close relationship between the wrongdoer and the defendant, and was the wrongdoer acting in the course of their employment, or were they acting on their own merit?
Vicarious liability and 'a frolic of their own'
Another case further demonstrating the progression this year was Isma Ali v Luton Borough Council  EWCH 132 (QB) which again focused on the second limb of the vicarious liability test of a sufficiently close connection and whether the defendant was vicariously liable for the claimant’s wrongful, and criminal, acts.
- The employee – RB, as part of her role, had access to social services records held on the defendant’s computer system in order to supervise and assess contact for children under their care. Upon the dissolution of her marriage, the claimant alleged her husband had engaged in domestic abuse, a complaint which was referred by the police to the council due to safeguarding concerns. At the time, RB was not working on any files relating to the claimant or her children, but while at work, accessed a number of records relating to the claimant’s police complaint about her now ex-husband. It transpired RB was in a relationship with the claimant’s ex-husband who had requested she accessed the records. RB took photos of the records, disclosing them to the ex-husband and when the claimant learned of this, she became distressed and concerned for her safety.
- Following investigations, the council dismissed RB and she was charged with the offence of unauthorised access to computer material, contrary to section 1 of the Computer Misuse Act 1990, pleaded guilty and was sentenced to three months’ imprisonment, suspended for 12 months.
- The question then arose whether the council were vicariously liable for her actions. The council denied this allegation, arguing that accessing the claimant’s file was contrary to its professional code of conduct and the process of doing so exceeded the limits of RB’s role.
- At the Court of Appeal, the issues fell in applying the earlier law of Various Claimants v WM Morrison Supermarkets plc  AC 989, and particularly the Lord Reed test of “whether the wrongful conduct was so closely connected with acts the employee was authorised to do that, for the purposed of liability of his employer, it may… be regarded as done by the employee while acting in the ordinary course of his employment”.
- The court held that the claim based on vicarious liability was not made out, as the wrongful act was not closely connected with the act the employee was authorised to do by the defendant. If RB had disclosed her relationship with the claimant’s husband, her access to these records would have been restricted. In doing what she did, RB was acting on a “frolic of her own”.
This case shines light on the fact vicarious liability must be decided from guidance of previously decided cases which gives consistent and well principled results. It further provides comfort to employers that they will not be responsible for the criminal wrongdoings of a frolicking employee. After a period of instability, this is welcomed as we move into the New Year.
Vicarious liability and non-delegable duty
A further case with differing facts but still of importance is Hughes v Rattan  EWCA CIV 107.The Court of Appeal dismissed the defendant’s appeal on non-delegable duty but upheld it on vicarious liability.
- The defendant, Dr Rattan, was the owner of the dental practice the claimant attended for treatment. The claimant alleged that between 2009 and 2015, she received negligent dental treatment from three dentists, none of whom were the defendant, but he was vicariously liable for each as they were his associates.
- On appeal, the facts were mostly accepted, in that NHS dental care was provided at the defendant’s practice pursuant to a contract between the PCT and the defendant. The contract permitted the defendant to sub-contract his obligations and it was agreed that the three dentists who provided the alleged negligent treatment were engaged by the defendant.
- The Court of Appeal agreed that the claimant was a patient of the practice, and she was in the defendant’s actual care as owner of the practice and so the appeal for non-delegable duty was dismissed.
- The dispute on vicarious liability lied, in that the defendant averred too much weight was being placed on factors suggesting his relationship with the associates was akin to employment. It was argued that the judge had failed to account for the fact the associates were independent contractors. In applying the decision in Barclays Bank  UKSC 13, it was asked whether the relationship between the defendant and associates was “sufficiently akin to employment”. It was determined it was not, based particularly on the fact that each associate personally held professional indemnity cover for negligence claims, were responsible for the standard of their own work, were responsible for their own tax and national insurance contributions, did not receive sick pay or a pension from the defendant and were free to work at the practice for as long as they wished and the defendant had no control over clinical decisions on treatment. On this basis the appeal was granted.
Although there were some factors that went against the defendant in this case, they did not outweigh or overshadow the finding on the issue of vicarious liability. The judgment adopted again an approach from previously decided law in finding an independent contractor is just that, an independent contractor.
It seems 2022 has placed vicarious liability on a consistent footing, something which practitioners in the area will no doubt welcome as providing long sought clarity. These recent decisions will also be welcomed by employers as it puts an end to arduous burdens that may have been inferred while the law was in a state of flux. These decisions have provided some stability and employers can now build in these findings to workplace policies and risk assessments. We can now be confident a finding of vicarious liability will only be made where the action(s) at the centre of the case were carried out as part of an employee’s contracted role which benefitted the employer, and employees should, in some way, bear the burden of their own extreme actions. It remains the case that human behaviour can be unpredictable – and ultimately, employers cannot predict each and every behaviour their employees may exhibit, they can only risk assess what is reasonably foreseeable in their respective roles. It remains to be seen if we will see further development in this area in 2023, given the workplace is a forever evolving place post-covid 19 with new challenges and risks – but, for now, practitioners in this area can rely on these decisions for some long-awaited clarification.
Jessica Smith is a solicitor apprentice with the public sector team at Plexus Law: plexuslaw.co.uk