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Searching for Certainty and Precision in Vicarious Liability: The Quest for a Chimaera

An exploration, critical analysis and evaluation of the ‘close connection’ test established in Lister v Hesley Hall Ltd


In light of the recent revelations of historic sexual abuse, claims of vicarious liability have never been more prevalent in society. In 2012 claims of historic sexual abuse began to surface against Jimmy Savile that were described as being on an ‘unprecedented scale’.[1] Sales J sanctioned a compensation scheme for the victims of Savile, which was supported by the BBC and the NHS in an attempt to avoid litigation[2]. With many of the incidents of abuse occurring whilst Savile was employed by the BBC, or visiting an NHS hospital, the chances of both organisations being held vicariously liable for Savile’s actions are high. Slater and Gordon have already begun working with the victims to prepare claims against these two institutions.[3] Clearly it would be a tenuous finding that the act of sexually abusing children could be within the course of Saville’s employment as a television presenter. Consequently it has never been timelier to engage in a detailed study of the element of the ‘course of employment’ for vicarious liability.

This study will critically analyse and evaluate the test used by the courts to determine the connection needed between the tort committed and the tortfeaser’s employment. It will also aim to show that the introduction of the ‘close connection’ test has extended the scope of vicarious liability far beyond its original limitations. In order to show this, the judicial reasoning of the court in Lister v Hesley Hall Ltd[4] and, in particular, the court’s failure to address the underlying theoretical basis of vicarious liability, will be critiqued. This study will then analyse the extent to which the ‘close connection’ test has blurred the line between vicarious liability and primary liability and consider how the lack of any real guidance given to the courts from the ‘close connection’ test has led to inconsistency and uncertainty within the law. Finally, this study will go on to consider how subsequent courts have applied the test.

Vicarious Liability and its Justifications

Vicarious liability can be defined as a ‘legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment’.[5]

The theoretical underpinning of the doctrine of vicarious liability is unclear, as highlighted by Glanville Williams who wrote that ‘[v]icarious liability is the creation of many different judges who have had different ideas of its justification or social policy, or no idea at all’.[6] However, the main justification is generally considered to be allowing the innocent claimant to be duly compensated for their injuries. In Various Claimants v Catholic Child Welfare Society[7] Lord Phillips stated that the policy underlying the doctrine ‘is to ensure, in so far as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim’.[8] The rationale behind this justification is via the principle of loss-distribution, which was generally seen to have been first recognised by Dean Smith.[9] The principle of loss-distribution has been described by Williams as a form of ‘social insurance’[10] and also as the principle ‘that best fits the existing law’.[11] This principle states that the employer will have insurance to cover any liability that they may incur, and that the cost of this insurance will be added to the cost of the goods and services that they supply, which will then in turn be passed on to the consumer, consequently spreading their loss. ‘In this way the cost of tort liabilities is spread very thinly over a substantial part of the public’,[12] meaning that ‘no single individual has to put his hand into his pocket to pay out any large sum at any one moment’.[13]

Furthermore, it is thought that vicarious liability in the employment relationship is justified through the doctrine of ‘enterprise risk’. John Fleming argued that ‘a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise’.[14] Therefore liability is found on the basis that the employer has chosen to employ that specific employee and, as the employer will benefit from the activities of the employee, then they should also be exposed to the risk of liability for those same activities.

In addition to this is the argument that the doctrine acts as a deterrent. It is thought that ‘the threat of paying compensation under a strict liability regime will encourage employers to take steps greater than those demanded’[15] through fault-based liability. Fleming argued that ‘deterrent pressures are most effectively brought to bear on larger units like employers who are in a strategic position to reduce accidents by efficient organisation and supervision of their staff’.[16]
In order for vicarious liability for a tortious act to arise in an employment relationship two elements must be present, namely; a sufficient relationship must exist between the tortfeaser and the individual who is sought to be imposed with vicarious liability, and the employee must have been acting in the course of his employment when committing the tort. This study will examine the law surrounding the latter element and considering the extent to which the current test used by the courts is appropriate.

In the ‘Course of Employment’

The requirement that the tort have been committed in the ‘course of employment’ is a crucial factor in limiting the scope of vicarious liability. However the courts have thus far struggled to create a ‘clear and workable test’[17] which balances the concern for the victims of torts without imposing ‘an unjustifiable burden on innocent defendants’.[18] A restrictive interpretation of this element ‘will reduce the incentives for the employer to undertake preventative measures and diminish the ability of the victim to seek compensation’.[19] In contrast, a wide interpretation may impose an undue burden on an innocent defendant.[20]

The Salmond Test

The original test used by the courts was the test propounded by Professor Salmond:

A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by his master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.[21]

However the Salmond test proved problematic for the courts in finding vicarious liability due to both elements of the test requiring the authorisation of the master. Subsequently this requirement made it impossible, without distortion of the test, to find vicarious liability in the case of intentional torts. In order to find vicarious liability in a case such as this would require a finding of authorisation that clearly ‘no reasonable employer would ever consider authorising’.[22] A case that highlights this ineffectiveness of the Salmond test is Trotman v North Yorkshire County Council.[23] This case concerned a sexual assault of the plaintiff by a deputy headmaster employed by the defendants. The court applied the Salmond test and felt unable to impose vicarious liability on the defendant due to the fact that the sexual assault was clearly not an act authorised by the master. Butler-Sloss LJ stated that the deputy headmaster’s position gave him the opportunity to commit the sexual assault, ‘but availing himself of that opportunity seems to me to be far removed from an unauthorised mode of carrying out a teacher’s duties’.[24] Therefore, if vicarious liability were to extend to cover intentional torts a new test would have to be developed. It was in Lister v Hesley Hall Ltd thatthe House of Lords took the opportunity to develop this new test.

Lister v Hesley Hall Ltd

The issue that confronted the court in Lister was again an intentional tort. The facts of the case involved the defendant employing a warden in a position of care for children residing in a boarding school, but instead the warden proceeded to sexually abuse the children.  The children then brought an action alleging that the defendant was vicariously liable for the acts of the warden. Lord Steyn stated that the Salmond test ‘does not cope ideally’[25] with intentional wrongdoing, and so his Lordship proposed a new formulation. The new test, as interpreted by subsequent case law, for establishing whether an employee has been acting in the course of his employment is to consider ‘whether the (…) torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable’.[26] On the facts in Lister it was held that the warden’s sexual abuse was so closely connected with his duties that the defendant should be vicariously liable.

Although the ‘close connection’ test has allowed for the imposition of vicarious liability in cases of intentional torts, the test ‘affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close’.[27] Consequently the test has proven to be difficult to apply by the courts and labelled as ‘deceptively simple’.[28] The effectiveness of this test will be the focus during the remainder of this study.

Judicial Reasoning in Lister v Hesley Hall Ltd

The guidance provided by the judicial reasoning in Lister is of little assistance to courts in application of the ‘close connection’ test. Their Lordships failed to articulate any clear statement of legal principle to guide future courts and, furthermore, failed to address the underlying theoretical basis of vicarious liability. Lord Steyn made no reference to any theoretical basis, other than a brief mention of the judiciary’s requirement to deliver ‘principled, but practical justice’.[29] In the same vein, Lord Clyde argued that there was no ‘reason of principle or policy which can be of substantial guidance in the resolution of the problem of applying the rule’.[30] The importance of addressing the theoretical basis of liability, which the House of Lords clearly failed to do, is that it would have provided a justification for any subsequent finding of vicarious liability. The controversial nature of vicarious liability, namely that the defendant usually has no fault, means that any ‘defendant is surely deserving of an explanation as to why he or she is liable’.[31]

An additional confusion found in the reasoning of the court in Lister arises from the endorsement of the Canadian authorities of Bazley v Curry[32] and Jacobi v Griffiths[33] by the majority of the House. These judgments were described as ‘luminous and illuminating’,[34] moreover it was advised that where issues of vicarious liability should arise again, then these judgments ‘will be the starting point’.[35] However these two cases were decided on a clear theoretical basis, with particular emphasis on the principle of ‘enterprise risk’. In Bazley v Curry McLachlin J stated that in the absence of any helpful precedent the court should consider the two identified policy rationales, namely; the provision of fair and efficient compensation for the victim, and the deterrence of future harm.[36] Although the court in Lister adopted the ‘close connection’ test established in Bazley v Curry the issue here arises from the court’s express refusal to endorse the rationale provided by McLachlin J. This can be highlighted by the judgment of Lord Hobhouse, where his Lordship states that ‘I do not believe that it is appropriate to follow the lead given by the Supreme Court of Canada in Bazley v Curry’[37] and further states that ‘the exposition of the policy reasons for a rule (…) is not the same as defining the criteria for its application’.[38] Consequently, although the court directed that the decision in Bazley be the starting point for future considerations, the dismissal of the theoretical reasoning that formed the basis of the test has caused Paula Giliker to comment on whether future courts could meaningfully refer to the judgment of McLachlin J at all, given that the judgment could only really be understood in the context of its underlying rationale.[39] However, in contrast, Douglas Brodie argues that ‘when subsequent decisions are taken into account, the position in the UK is reasonably clear’[40] and that ‘[s]ubsequent case law confirms that the rationale of Bazley has been fully taken on board by the courts’.[41] The reasoning in Dubai Aluminium Co Ltd v Salaam[42]provides illustration for this point. Lord Nicholls clearly follows the policy rationale of ‘enterprise risk’ set out in Bazley when his Lordship states that ‘[t]he underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others’[43] and ‘[w]hen those risks ripen into loss, it is just that the business should be responsible for compensating the person’.[44]

The fact that their Lordships in Lister declined to consider the theoretical basis of vicarious liability, as well as rejecting the underlying rationale for the decision in Bazley, adds further difficulties to an already controversial area of law. Had the court set out a theoretical basis to vicarious liability this would have provided a ‘means of justifying the finding of liability’[45] and would have given ‘future defendants an explanation why they should be liable (…) without committing any fault’.[46] It can be argued that the need to justify the finding of liability arises because the doctrine of vicarious liability runs counter to two guiding principles of tort law, namely that a person should only incur liability through his own acts and omissions, and that a person should only be liable where they are at fault.[47] Furthermore, the guidance that would have been afforded to future courts through the articulation of a theoretical basis would have led to more consistent and predictable decisions, consequently bringing clarity to this area of law.

This lack of guidance from the House of Lords, in an area of law previously described by Fleming as ‘an expansive concept which provides ample scope for policy decisions’,[48] has allowed a wide discretion to the judiciary to decide a case in a manner that they see fit. This could be argued to contravene ‘the rule of law’. The second principle of ‘the rule of law’ as stated by Tom Bingham is that ‘[q]uestions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion’.[49] Consequently the inadequate guidance provided in Lister has allowed subsequent courts to find liability in an unrestricted manner, whereas ‘[t]he job of judges is to apply the law, not to indulge their personal preferences’.[50]

Blurring the Line between Vicarious Liability and Primary Liability

The reasoning behind the decision of the court in Lister appears to suggest that liability was founded on the basis that the employer had been entrusted with a duty to look after the boys and had then delegated that duty to the warden, thus it can be argued that the ‘close connection’ test blurs the line between vicarious liability and primary liability. Lord Hobhouse went even further by suggesting that ‘[t]he liability of the employers derives from their voluntary assumption of the relationship towards the plaintiff and the duties that arise from that relationship and their choosing to entrust the performance of the duties to their servant’.[51] Additionally, Lord Clyde made reference to the fact that the care and safekeeping of the boys had been entrusted to the warden through the delegation of the employer.[52] Similarly, Lord Millett also refers to the employer’s entrusted responsibility in the warden to care for the welfare of the boys.[53] Giliker opines that the ‘[r]eference to duties “entrusted” and “delegated” to the employee seem more indicative of primary liability, rendering the term “vicarious” redundant’.[54] Likewise, Claire McIvor argues that the new test appears ‘to be a product of judicial confusion about the nature of the distinction between direct and vicarious liability’.[55]

However, in contrast, Po Jen Yap suggests that the court in Lister was not imposing liability on the basis that the employer ‘owed a duty of care to the victims upon entrusting the boys to the errant employee’.[56] Yap stated that the court’s emphasis on the employer’s responsibility for placing the boys under the employee’s control was simply a factor in finding that there was a close connection between the employment and the tort.[57] Furthermore, Yap argues that their Lordships were merely ‘identifying factors inherent in the nature of the employment that facilitated the assaults on the children, so as to decide whether the tort was committed in the course of employment’.[58] Therefore, although on first inspection it does appear that the court based their decision on the primary duty that the employer had towards the boys that was then delegated to the warden, a closer reading shows that the court merely considered this to be a factor in finding a close connection between the employment and the tort.


The ‘close connection’ test supplies no real guidance to the courts on the requisite connection needed to impose vicarious liability. Lord Phillips stated that ‘[i]t is not easy to deduce from the Lister case the precise criteria that will give rise to vicarious liability’[59] and that the ‘test of “close connection” (…) tells one nothing about the nature of the connection’.[60] Additionally McIvor opines that inclusion of the concepts of justice and fairness found within the ‘close connection’ test are ‘wholly subjective concepts that are only capable of taking on any real meaning when applied against the backdrop of an articulated set of core values’.[61] However, the ‘close connection’ test clearly fails to provide this ‘set of core values’, and therefore the notion of ‘justice’ and ‘fairness’ are rendered irrelevant. Subsequently this lack of guidance has conferred a wide discretion on the courts, which has caused a lack of consistency in the authorities within this area. It is argued that the test, in itself, ‘merely provides the court with a formula to confirm its result, not to reach one’.[62] When faced with the need to apply the ‘close connection’ test the courts will essentially make ‘an evaluative judgment in each case, having regard to all the circumstances and, also (…) to previous court authorities’.[63] This issue can be highlighted by a comparison of two authorities.

The first authority is N v Chief Constable of Merseyside Police.[64] This case concerns a police constable who had offered the claimant a lift to the police station after she was found to be intoxicated. However, instead of taking the claimant to a police station, the constable drove her back to his property and proceeded to rape her. Despite the constable having been dressed in full police uniform with his warrant card on display, and also having asserted that he was a police officer, the court, applying the ‘close connection’ test, held that he was not acting in the course of his employment and as a result there was no vicarious liability.

In contrast, the second authority, is Bernard v Attorney General of Jamaica.[65] In this case the claimant was using a public telephone when the employee, who identified himself as a police officer, demanded that he use the telephone. When the claimant refused the employee’s demands, he pulled out his revolver and fired at the claimant’s head. The Privy Council held that the Attorney-General was vicariously liable in this case, even though the police officer was off-duty and there was no evidence that he needed to use the phone in connection with police business.

The similarities between the actions of the tortfeaser in the two aforementioned cases make them difficult to reconcile with one another. Further to this, it is difficult to reconcile N v Chief Constable of Merseyside Police with the justifications for vicarious liability mentioned above. Undeniably the claimant was deserving of financial compensation for the harrowing physical and psychological injuries she suffered at the hands of the employee of the Chief Constable. Once again highlighting the wide discretion that has been granted to the courts. The emphasis by the courts on the particular circumstances of each case greatly ‘diminishes the precedent value of such authority’.[66] As a consequence, previous case authorities have come to be of little use to the courts, even so most decisions have been decided on the specific facts of the case and are, therefore, distinguishable. Robert Weekes argued that ‘[i]t is unlikely that the initial survey of precedent should ever unambiguously determine whether liability exists’.[67]

It is arguable that this lack of consistency in the application of the ‘close connection’ test is again incompatible with ‘the rule of law’. Bingham suggests that another of the fundamental principles of ‘the rule of law’ is that ‘[t]he law must be accessible and so far as possible intelligible, clear and predictable’.[68] The inconsistencies arising from the ‘close connection’ test, as highlighted above, has led to the law surrounding vicarious liability to be far from predictable or certain.

Clearly if the law is not predictable then one cannot know the obligations that have been placed upon them and the liability that they will incur through not performing those obligations. Thus if the law was clear and predictable then this would provide a much more effective deterrent. Subsequently, this deterrence would compel innovation in employers to actively find ways of preventing their employees from committing the tort, such as enlisting their employees on training programmes, or through engaging in stringent background checks when hiring.  Moreover the fact that vicarious liability is a form of strict liability, meaning that the employer is an innocent party and has no fault, makes it especially important that the employer can know in what situations they will be found liable.

Post-Lister Application of the ‘Close Connection’ Test

The inherent ambiguities associated with the ‘close connection’ test has meant that the courts have failed to reach a universal consensus as to when an employee’s tort will be sufficiently closely connected to his employment.  The lack of guidance in the Lister formulation has led to the courts placing emphasis on a range of different factors in a haphazard manner. Yap has identified three different lines of post-Lister cases that have each been decided on a different basis.[69]

In the first line of cases the courts have reapplied a version of the Salmond test. This can be highlighted by the Attorney General of the British Virgin Islands v Hartwell.[70] In this case a police officer had entered a bar in which his partner worked and, having found her with another man, fired shots at them with his police revolver. The claimant was seriously injured by one of the shots and brought a claim alleging that the Attorney-General was vicariously liable for the actions of the police officer. The court applied the test of whether the tort was ‘so closely connected with acts he was authorised to do’[71] and found that the officers’ activities ‘had nothing whatever to do with any police duties, either actually or ostensibly’,[72] therefore no vicarious liability was found. It appears that by focusing on whether the act was closely connected with what the employee was authorised to do, Lord Nicholls has in fact applied ‘a reformulation of the Salmond [test]’.[73] Yap argued that ‘if the employer had authorised the act (…) the employee would be actually performing his work-related duties when committing the wrong’[74] whereas ‘if the intentional tort arose from the (…) employee’s ostensible performance of his work duties, arguably one then is asking whether this was the result of the employee’s unauthorised mode of performing an authorised act’.[75]

In the second line of cases the courts appear to have imposed vicarious liability on the basis that the employers had assumed a primary responsibility over the victims. Alberto Filipe Cercato-Gouveia v Ermis Kyprianou, The Heybridge Hotel Ltd[76]provides an example of the court’s application the ‘close connection’ test in a manner that appears to focus on the primary liability of the employer. In this case the court found that the employer could be vicariously liable for the assault by a restaurant manager that they employed on another of their employees. However the reasoning given by the court appears to suggest that the liability of the employer was founded on his primary liability to the injured employee. In the judgment of the court Dyson LJ refers to the fact that the employer owed a duty of care to the claimant and that this duty had been entrusted to the restaurant manager.[77] This clearly appears to refer to the application of a test relating to the primary liability of the defendant. A further illustration of this particular application of the ‘close connection’ test arises from Mattis v Pollock (t/a Flamingos Nightclub).[78] This case involved a stabbing by the doorman, who was employed by the defendant’s nightclub, which severed the victim’s spinal column. The court, in finding the defendant employer vicariously liable, appeared to put emphasis on the fact that the doorman was not licensed and should not therefore have even been employed by the defendant,[79] and also the fact that the defendant had actively ‘been encouraging him to perform his duties as he did’.[80] This suggests that the court was finding vicarious liability on the evidence of fault on the part of the defendant. Although the court did mention that they would have found the defendant personally liable,[81] this was not the question put before the court and so the court would have been better advised to have purely considered the imposition of vicarious liability. Clearly the evidence of fault is not a requirement in the finding of no-fault liability.

McIvor suggests that this confusion between primary liability and vicarious liability is rooted in the court’s application of liability through a breach of a non-delegable duty of the employer.[82] A non-delegable duty is a form of primary liability whereby the liability for a breach of the duty cannot be delegated. In vicarious liability cases this non-delegable duty will usually be the employer’s duty for the safety of his employees.  It is argued that fault-based liability is being ‘dressed up in non-delegable duty rhetoric (…), ultimately to produce conclusions that are presented in vicarious liability terms’.[83] In this second line of cases discussed, it is evident that the court’s expansion of vicarious liability to take into account the employer’s primary liability has placed the doctrine in a highly unsatisfactory position.

The third line of cases concern the finding of vicarious liability based on the fact that the tort was an incidental risk in the employment. It is likely that these cases have focused upon the reasoning of Lord Clyde in Lister who advocated this approach by stating that the focus should be upon the context and circumstances in which the employee’s tort occurred and whether they could be viewed as ‘incidental to and within the scope of his employment’.[84] This line of cases begins with the widening of the ‘close connection’ test in Majrowski v Guy’s and St Thomas’s NHS Trust,[85] where it was stated that the test should focus on the ‘sufficiency of the connection between the breach of duty and the employment and/or whether the risk of such breach was one incidental to it’.[86] An illustration of this application arises from Gravil v Carroll[87], where a rugby club was found vicariously liable on the basis that the risk of one of its employees punching another player ‘was a reasonably incidental risk to the type of employment being carried on, namely playing rugby’.[88]

Yap argues that difficulties arise out of this particular application of the ‘close connection’ test through the ambiguity in the term ‘reasonably incidental risk’.[89] This ambiguity arises because of the uncertainty in the ‘type of risks the employer must run [in order to] be held vicariously liable for the torts committed by his [employee]’.[90] Clearly this is detrimental to the justifications of the doctrine as it does not allow the employer to foresee the risks within his enterprise that may cause liability to arise, and therefore cannot take any action to prevent such liability arising. This issue further highlights the lack of deterrent effect that vicarious liability has. Moreover, it is argued by McIvor that the facts of Majrowski show that the risk of harm ‘does not have to be particularly strong’.[91] In Majrowski the court found the NHS Trust vicariously liable as they had created the risk of harassment by simply placing the departmental manager in a position of authority over the victim. Clearly this element of the ‘close connection’ test has drastically widened the boundaries of vicarious liability. It has been suggested that the reasoning in Majrowski allows ‘all employers who operate a hierarchal staffing system to be vulnerable to such a liability’.[92] Similarly, Yap also suggests that the word ‘incidental’ is far too broad in its scope.[93] Therefore it is submitted that the reasoning of Lord Millett in Lister should be adopted, where his Lordship states that the employer ‘is liable only if the risk is one which experience shows is inherent in the nature of the business’.[94] In other words, vicarious liability should only be found where the tort committed by the employee is a ‘consequence of the job nature, rather than an ancillary or incidental risk accompanying the employment’.[95]

These three lines of authorities clearly demonstrate the lack of guidance that has been given to the courts by the ‘close connection’ test. In all three lines, the courts have applied a different reasoning and all have focused upon a different element in order to consider the imposition of vicarious liability. Thus further evidencing the discretion that has been placed on the courts in this area. It is submitted that the approach advocated by Lord Millett that focuses on the inherent risks within the business is the most appropriate application of the ‘close connection’ test and it is this approach that should be adopted by future courts. An approach that focuses upon the risk created by the employment is an approach that stands true to the guidance given in Lister that suggests that courts should concentrate on the ‘closeness of the connection between the nature of the employment and the particular tort’.[96]

Recent Developments in the Law

In 2016 the Supreme Court in Mohamud v WM Morrison Supermarkets plc[97] delivered a judgment on the connection required for vicarious liability to exist that has drastically widened the area of law. The court found the employer vicariously liable where a petrol station attendant had left his kiosk against the orders of his supervisor and engaged in a completely unprovoked assault of a customer.

Although the court refused to modify the ‘close connection’ test from Lister,[98]the guidance provided has fundamentally changed any future court’s approach to vicarious liability. It was stated that two matters should be considered when applying the test. The first matter being that the court should consider what ‘function or “field of activities” have been entrusted by the employer to the employee’.[99] Clearly the ‘field of activities’ of the employee will encompass many different acts. The court confirmed that a broad approach should be taken, and endorsed[100] the judgment in Ilkiw v Samuels[101]where it was stated that the course of employment ‘must be looked at broadly, not dissecting the servant’s tasks into its component activities’.[102] On the facts in Mohamud, the court found that the employee’s ‘job was to attend to customers and to respond to their inquiries’[103] and that the employee’s conduct in assaulting the customer in response to his inquiry was ‘within the “field of activities” assigned to him’.[104] The second matter is to consider whether there was a sufficient connection between the position in which the employee was employed and the tort he committed to make it right that the employer be held liable.[105] The court also stated that in considering this second matter, courts should have regard to the principles of social justice set down by Holt CJ who proposed that ‘whoever employs another is answerable for him, and undertakes for his care to all that make use of him’.[106] This statement appears to advocate a theory of enterprise risk, and thus it is this theory that future courts should consider when approaching the issue of vicarious liability. In Mohamud the court held that it was right that the employer be found liable as they had entrusted the employee with that position and they should be held responsible for the employee’s abuse of it.[107]

The full ramifications of this judgment are unknown, however it appears now that the law of vicarious liability has been stretched far beyond its original limitations. Previously it was thought that ‘the fact that the act in question occurred during the time of the employment and in the place of the employment is not enough by itself’[108] and that there must be ‘something more’. This ‘something more’ could include being in a position of responsibility over vulnerable individuals as in Lister, or a position where confrontation is likely to arise as in Mattis. Thus it appears that it is now only necessary to show that the employee was given the opportunity to commit the tort whilst operating within the broad ‘field of activities’ that the employer has entrusted him with. Consequently, this has widened vicarious liability so that an employer could be found liable for any act of his employee so long as it is within the ‘field of activities’ that he has been entrusted with. Furthermore, it appears that liability may also be found in situations where the employee has gone beyond the ‘field of activities’, so long as what occurred thereafter was an ‘unbroken sequence of events’.[109] Clearly this decision has only added to the uncertainty in the law and it is highly likely that the Supreme Court will have to revisit this area in the near future.


The ‘close connection’ test has expanded the scope of vicarious liability far beyond the previous limitations in the Salmond test. It has been argued that the judgment in Lister ‘produced an inordinately broad ratio that is susceptible to inappropriate manipulation’.[110] This can be illustrated by Mohamud where the court, although not explicitly, appeared to indicate that the requirement for ‘something more’ is no longer required and that all that needs to be shown is that the employee operated within ‘the field of his activities’. Therefore if Savile’s victims were to bring claims against the BBC or NHS, it now appears highly likely that vicarious liability will be found.

However, although the ‘close connection’ test has clearly allowed the finding of vicarious liability in many more cases than the previous Salmond formulation, it is submitted that this is not the most problematic issue. The real issue with the ‘close connection’ test is the lack of guidance given to subsequent courts through the judgments of their Lordships in Lister, along with the lack of guidance given on the requisite connection needed in the ‘close connection’ test itself. This has led to findings of vicarious liability in an inconsistent manner. The contrasting authorities of N v Chief Constable of Merseyside Police[111]and Bernard v Attorney General of Jamaica[112] provide a clear illustration of this issue. The actions of the tortfeaser in each case are remarkably similar yet the cases were decided differently.

Consequently, this inconsistency in the application of the ‘close connection’ test has led to a lack of a certainty within the law and the outcome of which has meant that decisions of the courts have become almost impossible to predict. As previously argued this contravenes fundamental principles of ‘the rule of law’ as set out by Bingham.[113] The difficulty with the law being unpredictable is that an employer cannot ascertain in which situations he may be found liable for the actions of his employee. Clearly this is problematic as, if an employer cannot ascertain when liability will arise, then the employer cannot take action to prevent such liability arising and this effectively ‘relegates the employer to the status of an involuntary insurer’.[114] Evidently this is contrary to the justification of vicarious liability that it may act as a deterrent to employers who take no effort to control their employees. In order for a deterrent to be effective there must be a way of avoiding the penalty imposed. Furthermore, the lack of any clear theoretical underpinning given by their Lordships in Lister has meant that the finding of vicarious liability in some cases has been difficult to justify.

In conclusion, the ‘close connection’ test is clearly broader than the Salmond test and has therefore caused many more claims of vicarious liability to succeed. Although the finding of a solvent defendant to recompense an innocent victim is advantageous, the method by which the courts have allowed this is inappropriate.  The discretion allowed to the courts through such a broad test arguably contravenes ‘the rule of law’ and controls should be put in place to limit their discretion. As Williams wrote ‘[t]here must be some other fact to create liability, and not merely the attribute of solvency’.[115] Moreover, following the recent Supreme Court judgment in Mohamud, it is likely that further discretion has been allowed to the courts and so the search for certainty and precision within vicarious liability remains as prevalent as ever. The ‘quest for a chimaera’[116] continues.


Cases Cited:

Alberto Filipe Cercato-Gouveia v Ermis Kyprianou, The Heybridge Hotel Ltd [2001] EWCA Civ 1887

Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12, [2004] 1 WLR 1273

Bernard v Attorney General of Jamaica [2004] UKPC 47, [2005] IRLR 398

Boson v Sandford (1689) 91 ER 382 (KB)

Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366

Gravil v Carroll [2008] EWCA Civ 689, [2008] ICR 1222

Ilkiw v Samuels [1963] 1 WLR 991 (CA)

Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215

Majrowski v Guy’s and St Thomas’s NHS Trust [2005] EWCA Civ 251, [2005] QB 848

Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ 887, [2003] 1 WLR 2158

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, [2016] 2 WLR 821

N v Chief Constable of Merseyside Police [2006] EWHC 3041, [2006] Po LR 160

Trotman v North Yorkshire County Council [1998] ELR 625 (CA)

Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1

Canadian Jurisdiction:

Bazley v Curry [1999] 2 SCR 534, (1999) 174 DLR (4th) 45

Jacobi v Griffiths [1999] 2 SCR 570, (1999) 174 DLR (4th) 71

Books Cited:

Atiyah PS, Vicarious Liability in the Law of Torts (Butterworths 1967)

Bingham T, The Rule of Law (Penguin Books 2011)

Fleming JG, The Law of Torts (9th edn, LBC Information Services 1998)

Giliker P, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010)

Heuston RFV & Buckley RA, Salmond and Heuston on The Law of Torts (21st edn, Sweet and Maxwell 1996)

Salmond JW, The Law of Torts (1st edn, Steven and Haynes 1907)

Journal Articles Cited:

Brodie D, ‘Enterprise Liability: Justifying Vicarious Liability’ (2007) 27 Oxford J Legal Studies 493

Giliker P, ‘Rough Justice in an Unjust World’ (2002) 65 MLR 269

McIvor C, ‘The Use and Abuse of the Doctrine of Vicarious Liability’ (2006) 35 Common Law World Review 268

Smith YB, ‘Frolic and Detour’ (1923) 23 Colombia Law Rev 444

Weekes R, ‘Vicarious Liability for Violent Employees’ (2004) 63 CLJ 53

Williams G, ‘Vicarious Liability and the Master’s Indemnity’ (1957) 20 MLR 220

Williams G, ‘Vicarious Liability and the Master’s Indemnity’ (1957) 20 MLR 437

Yap PJ, ‘Enlisting Close Connections: A Matter of Course for Vicarious Liability’ (2008) 28 Legal Studies 197

Websites Cited:

‘Savile Abuse Claims: Met Police Launch Criminal Inquiry’ (BBC 19 October 2012)
<>   accessed 9 January 2016

‘Judge Approves Savile Compensation Scheme’ (Keith Perry 26 February 2014)
<>  accessed 9 January 2016

‘Jimmy Savile Investigation Update’ (Slater and Gordon LLP)
<>  accessed 9 January 2016

[1] ‘Savile Abuse Claims: Met Police Launch Criminal Inquiry’ (BBC 19 October 2012)
<> accessed 9 January 2016

[2] ‘Judge Approves Savile Compensation Scheme’ (Keith Perry 26 February 2014)
<> accessed 9 January 2016

[3] ‘Jimmy Savile Investigation Update’ (Slater and Gordon LLP)
<> accessed 9 January 2016

[4] [2001] UKHL 22, [2002] 1 AC 215

[5] ibid[14] (Lord Steyn)

[6] Glanville Williams, ‘Vicarious Liability and the Master’s Indemnity’ (1957) 20 MLR 220, 231

[7] [2012] UKSC 56, [2013] 2 AC 1

[8] ibid [34]

[9] Young B Smith, ‘Frolic and Detour’ (1923) 23 Colombia Law Rev 444, 457

[10] Glanville Williams, ‘Vicarious Liability and the Master’s Indemnity’ (1957) 20 MLR 437, 443

[11] ibid

[12] PS Atiyah, Vicarious Liability in the Law of Torts (Butterworths 1967) 23

[13] ibid

[14] John G Fleming, The Law of Torts (9th edn, LBC Information Services 1998) 410

[15] Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) 241

[16] Fleming (n 14) 410

[17] Giliker, Vicarious Liability in Tort (n 15) 146

[18] ibid

[19] Giliker, Vicarious Liability in Tort (n 15) 150

[20] ibid

[21] JW Salmond, The Law of Torts, (1st edn, Steven and Haynes 1907) 83, Salmond & Heuston on The Law of Torts, (21st edn, Sweet and Maxwell 1996) 443

[22] Giliker, Vicarious Liability in Tort (n 15) 160

[23] [1998] ELR 625 (CA)

[24] ibid 632

[25] Lister (n 4) [20]

[26] ibid [28] (Lord Steyn)

[27] Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 AC 366 [25] (Lord Nicholls)

[28] Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ 887, [2003] 1 WLR 2158 [19] (Judge LJ)

[29] Lister (n 4) [16]

[30] ibid [35]

[31] Paula Giliker, ‘Rough Justice in an Unjust World’ (2002) 65(2) Modern Law Review 269, 273

[32] [1999] 2 SCR 534

[33] [1999] 2 SCR 570

[34] Lister (n 4) [27] (Lord Steyn)

[35] ibid

[36] Bazley (n 32) 556

[37] Lister (n 4) [60]

[38] ibid

[39] Giliker, ‘Rough Justice’ (n 31) 274

[40] Douglas Brodie, ‘Enterprise Liability: Justifying Vicarious Liability’ (2007) 27(3) Oxford J Legal Studies 493, 496

[41] ibid 497

[42] Dubai Aluminium (n 27)

[43] ibid [21]

[44] ibid

[45] Giliker, ‘Rough Justice’ (n 31) 276

[46] ibid

[47] Atiyah (n 12) 12

[48] Fleming (n 14) 421

[49] Tom Bingham, The Rule of Law (Penguin Books 2011) 48

[50] ibid 51

[51] Lister (n 4) [55]

[52] ibid [50]

[53] ibid [82]

[54] Giliker, ‘Rough Justice’ (n 31) 275

[55] C McIvor, ‘The Use and Abuse of the Doctrine of Vicarious Liability’ (2006) 35 Common Law World Review 268, 269

[56] Po Jen Yap, ‘Enlisting Close Connections: A Matter of Course for Vicarious Liability’ (2008) 28(2) Legal Studies 197, 200

[57] ibid 201

[58] ibid

[59] Catholic Welfare Society (n 7) [74]

[60] ibid

[61] McIvor (n 55) 279

[62] Po Jen Yap (n 56) 200

[63] Dubai Aluminium (n 27) [26] (Lord Nicholls)

[64] [2006] EWHC 3041 (QB), [2006] Po LR 160

[65] [2004] UKPC 47, [2005] IRLR 398

[66] Giliker, Vicarious Liability in Tort (n 15) 153

[67] R Weekes, ‘Vicarious Liability for Violent Employees’ (2004) 63(1) CLJ 53, 60

[68] Bingham (n 49) 37

[69] Po Jen Yap (n 56) 203

[70] [2004] UKPC 12, [2004] 1 WLR 1273

[71] ibid [16] (Lord Nicholls) (emphasis added)

[72] ibid [17] (Lord Nicholls)

[73] Po Jen Yap (n 56) 205

[74] ibid

[75] ibid

[76] [2001] EWCA Civ 1887

[77] ibid [19]

[78] Mattis (n 28)

[79] ibid [30]

[80] ibid (Judge LJ)

[81] ibid [34] (Judge LJ)

[82] McIvor (n 55) 269

[83] ibid 295

[84] Lister (n 4) [43]

[85] [2005] EWCA Civ 251, [2005] QB 848

[86] ibid [38] (Auld LJ) (emphasis added)

[87] [2008] EWCA Civ 689, [2008] ICR 1222

[88] ibid [29] (Sir Anthony Clarke MR)

[89] Po Jen Yap (n 56) 206

[90] ibid

[91] McIvor (n 55) 283

[92] ibid

[93] Po Jen Yap (n 56) 206

[94] Lister (n 4) [65] (emphasis added)

[95] Po Jen Yap (n 56) 207

[96] Lister (n 4) [24] (Lord Steyn)

[97] [2016] UKSC 11, [2016] 2 WLR 821

[98] ibid [46]

[99] ibid [44] (Lord Toulson)

[100] ibid [44]

[101] [1963] 1 WLR 991 (CA)

[102] ibid 1004 (Diplock LJ)

[103] Mohamud (n 97) [47] (Lord Toulson)

[104] ibid

[105] ibid [45]

[106] Boson v Sandford (1689) 91 ER 382 (KB), 382

[107] Mohamud (n 97) [47]

[108] Lister (n 4) [44] (Lord Clyde)

[109] Mohamud (n 97) [47] (Lord Toulson)

[110] McIvor (n 55) 277

[111] N v Chief Constable (n 64)

[112] Bernard (n 65)

[113] Bingham (n 49)

[114] Bazley (n 32) 556 (McLachlin J)

[115] Williams (n 6) 232

[116] Mohamud (n 97) [54] (Lord Dyson)

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