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.
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.
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.
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.ukTags:
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