What is vicarious liability?

Vicarious liability is a concept used by the civil courts to allocate legal responsibility to a person (A) for a wrong committed against another person, when A is not personally at fault. Employers may be found vicariously liable if their employee has committed the tort of negligence against a third party during the course of their employment. This means that the third party can bring a claim against the employer rather than the employee. 

The concept of vicarious liability has been shaped through case law. Traditionally, a court’s starting point for considering vicarious liability was the application of the Salmond test. Salmond formulated that an employer would be liable for the wrongful actions of his employee if the employer had either authorised the wrongful act, or the employee undertook a wrongful and unauthorised mode of doing some act authorised by the employer. However, in Lister v Hesley Hall Ltd [2002], the House of Lords found the Salmond test to be an inadequate way of determining whether an employee’s actions were within the scope of their employment. Instead the House of Lords thought it was more appropriate to question whether there was a sufficiently close connection with the employee’s employment that meant it was fair and just to hold the employer vicariously liable. This broader approach has been adopted in subsequent cases.