Vicarious Liability and Course of Employment in the UK Supreme Court and High Court of Australia

by Professor Paula Giliker, University of Bristol Law School

This blog will discuss two recent and important 2023 cases: the UK Supreme Court decision in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15 and that of the High Court of Australia in CCIG Investments Pty Ltd v Schokman [2023] HCA 21.  Both discuss vicarious liability and, in particular, the Stage 2 course of employment test. To establish vicarious liability in tort, two stages must be satisfied. Stage 1 is concerned with the relationship between the defendant and the person committing the tort (usually that of employer/employee). Stage 2 is concerned with the link between the commission of the tort and that relationship.

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A 21st Century Approach to Vicarious Liability Across the Common Law World

by Professor Paula Giliker, University of Bristol Law School

The common law doctrine of vicarious liability in tort is both controversial and on the move.  In the last 20 years, this doctrine – which holds one party (usually an employer) strictly liable for the torts of an employee that take place in the course of their employment – has given rise to significant decisions in the apex courts of common law jurisdictions across the world.  There has been an unprecedented level of cross-citation between common law jurisdictions, not only of decisions of the UK Supreme Court and the Supreme Court of Canada (Bazley v Curry [1999]; Lister v Hesley Hall Ltd [2001]; Various Claimants v Catholic Child Welfare Society (CCWS) [2012]) but also of decisions from the Supreme Court of Ireland (Hickey v McGowan [2017]), the Singapore Court of Appeal (Skandinavska Enskilda Banken AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2011]; Ng Huat Seng v Mohammad [2017]), the Court of Final Appeal of Hong Kong (Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd [2002] and the New Zealand Court of Appeal (S v Attorney-General [2003]).  It is an area therefore ripe for research but one in which this newly published book takes a distinct approach, arguing that to understand vicarious liability, we need to understand both the context in which these decisions are delivered and their underlying policy reasoning. (more…)

“Tailoring” the Close Connection Test for Sexual Abuse Victims: Vicarious Liability in the Court of Appeal

by Paula Giliker, Professor of Comparative Law, University of Bristol Law School.

The doctrine of vicarious liability renders a defendant strictly liable for the torts of another (X) where:

  • Stage One: the defendant is in a relationship with X which makes it fair and just for the law to make the defendant pay for the tortious conduct of X; and
  • Stage Two: there is a close connection between this relationship and X’s wrongdoing.

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Vicarious Liability in the Supreme Court: Can we finally say it is no longer on the move?

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)

In Various Claimants v Catholic Child Welfare Society (CCWS) [2012] UKSC 56, Lord Phillips famously stated that “The law of vicarious liability is on the move.”  This leading case also made it clear that two elements have to be shown before one person can be made vicariously liable for the torts committed by another:

  1. a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other; and
  2. a connection between that relationship and the tortfeasor’s wrongdoing.

Later cases such as Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire CC [2017] UKSC 60  have shown that the relationship, while primarily that of employer and employee, can extend to relationships akin to employment, including the relationship between a priest and his bishop[1] and a local authority and the foster parents to whom it entrusts children in care.  The Supreme Court in Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11 also broadened the “connection” test to impose vicarious liability for torts which were connected to the field of activities of the employee, and where there was a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable. (more…)

Understanding Vicarious Liability in Tort – The value of a comparative perspective

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)

In this blog, I will discuss two recent publications which address comparatively the doctrine of vicarious liability in tort and demonstrate the value of a comparative perspective in this field.  Vicarious liability is a rule of responsibility which is found across the common law of tort and typically renders an employer strictly liable for the torts of its employees provided that the tort takes place in the course of employment.  The idea of holding an employer liable to pay compensation to victims of its employees’ torts, regardless of the absence of personal fault, is not, however, unique to the common law.  Ideas of strict liability for the torts of others may also be found in civil law systems, although in some systems it is subject to a rebuttable presumption of fault (see, generally, Giliker, Vicarious Liability in Tort (CUP, 2010) and J Spier (ed), Unification of Tort Law: Liability for Damage Caused by Others (Kluwer Law International, 2003)).  In all systems, it has proven controversial with some commentators arguing that the imposition of no-fault liability on employers conflicts with notions of corrective justice and notably, in a number of systems, it has been questioned to what extent liability can be said to be founded on economic justifications based on enterprise risk and loss distribution via social or private insurance. (more…)

When Christmas drinks go wrong (Round Two) – Vicarious liability in the Court of Appeal … again

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School)

In January 2017, I published a blog on the decision of Judge Cotter QC in December 2016 in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB).  This was a High Court decision determining whether an employer would be vicariously liable when a company’s managing director punched a fellow employee during an informal drinking session after the company’s annual Christmas party.   Tort lawyers will know that vicarious liability is a rule of strict liability, by which a person (usually an employer) is held strictly liable for the torts of his employees provided that they take place “in the course of employment”.  Following the House of Lords’ decision in Lister v Hesley Hall [2001] UKHL 22, a tort is now deemed to be in the course of employment if it is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable.  In Bellman, the court was asked to apply the “close connection” test in the light of the Lord Toulson’s restatement of the test in Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11 in March 2016.  In that case, Lord Toulson had stated that, in applying the test for “close connection”, the court has to consider two matters:

  • What are the functions or “field of activities” entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?
  • Is there a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?

Judge Cotter QC in 2016 ruled that the violent assault had not been closely connected to the managing director’s duties for the company. On 11 October 2018, a unanimous Court of Appeal allowed Bellman’s appeal and ruled in favour of vicarious liability: [2018] EWCA Civ 2214.  This blog will consider the implications of this ruling. (more…)

When Christmas drinks go wrong – Vicarious liability and the ‘course of employment’ test in the High Court

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

The office Christmas party is something many of us will have enjoyed recently.  In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14).  Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.

In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director. (more…)

Supreme Court rulings on vicarious liability: Cox and Mohamud

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

© The Local Data Company
© The Local Data Company

“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”: Lord Dyson (Mohamud)

On 2 March 2016, the Supreme Court delivered two judgments which it described as “complementary to each other” on the controversial topic of vicarious liability in tort.  Vicarious liability imposes strict liability on an employer for the wrongful actions of (usually) its employees which are committed in the course of his or her employment.  Recently, however, as Lord Phillips (former President of the Supreme Court) stated in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (“the Christian Brothers case”), “the law of vicarious liability is on the move.”  Since 2001, it has been an area of law subject to expansion.  The question on appeal to the Supreme Court was essentially how far this expansion would go, examining, in particular:

  • The relationship needed to give rise to vicarious liability. This was examined in Cox v Ministry of Justice [2016] UKSC 10.
  • The manner in which the wrongful acts of the employee have to be related to the relationship giving rise to vicarious liability – in other words, were the employee’s torts so closely connected with his employment that it would be just to hold the employers liable? This was examined in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.

Both judgments are short and unanimous.  Neither claim, however, to provide absolute tests, taking the view that a lack of precision is inevitable, given the infinite range of circumstances where the issues arise. (more…)