Employers' and Vicarious Liability — SQE1 FLK1 Tort Law

Your client works a production line. The factory floor is loud enough to damage hearing permanently, and her employer knows it. Ear defenders sit in a store cupboard, handed out to anyone who asks. Nobody said a word about them at her induction. Nobody told her the noise was harmful. Six months later, the damage is permanent. Is her employer liable? Yes.

Now notice who she is not blaming. No colleague dropped anything on her. No driver hit her. The employer itself failed her, and that is one of two completely separate routes to an employer's door. The other is liability for what a worker does to somebody else. Same door, different doctrines, different tests. Confuse them and you lose the question. Keep the factory in mind.

Here is the route. Primary liability first: the employer's own duty, and the three things it must provide. Then compulsory insurance. Then vicarious liability and its two stages, is this person an employee, and was the tort in the course of employment. Then non-delegable duties, the route that survives when vicarious liability fails. Then the defences, and one statute that hands the claimant a shortcut.

Start with the divide, because this is where the examiner starts too. Primary liability is about what the employer failed to do. Vicarious liability is about what an employee did wrong. They are not the same thing and they do not share a test. So the first question in any fact pattern is simple. Who did the wrong thing?

Primary liability first. An employer owes each employee a direct, personal duty of care. Breach it, injure them, and the employer is liable in negligence in its own right. The leading authority is Wilsons and Clyde Coal Co, from 1938, where the House of Lords set out three duties every employer owes. Think of it as the employer's safety checklist.

One: competent staff, properly qualified, trained and supervised for the job they are doing. Two: adequate materials and equipment. Tools, machinery and protective kit must be safe and fit for purpose. Three: a safe system of work. How the work is organised, including training, procedures and supervision, must be reasonably safe. Staff, equipment, system.

Now the standard, and this is where candidates overreach. The duty is reasonable care, not strict liability. An employer is not an insurer of its workforce. It must do what a reasonable employer would do, weighing the likelihood and seriousness of harm, the cost of precautions, and common industry practice. Do everything reasonable and an accident still happens? Not liable.

But reasonable is a moving target. The employer is judged as a reasonable and prudent employer, which means keeping reasonably abreast of developing knowledge about risks, and acting on it. Not liable for a risk nobody knew about. Liable once the risk becomes known and it does nothing.

Back to the production line. Which of the three duties failed? The equipment existed, in the cupboard. The failure was the system: no warning at induction, no defenders issued, nothing said about why the noise mattered. Keeping kit available for whoever thinks to ask is not providing it.

Which brings in insurance. Most employers must hold employers' liability insurance under the Employers' Liability (Compulsory Insurance) Act 1969. Minimum cover of £5 million for any one claim. The certificate must be displayed at the workplace or made available to employees electronically. The exceptions are narrow, such as employers whose employees are all close family members, and certain public bodies. Failure to insure is a criminal offence.

And here is the point candidates get backwards. That Act protects employees, not employers. An uninsured employer is still fully liable in tort. The insurance requirement just makes sure there is money to pay. No cover does not mean no claim. It means a criminal offence on top of the claim.

Change one fact at the factory. A colleague on a forklift, trained and authorised, takes a short cut across a walkway his employer has forbidden and strikes a visitor. The employer did nothing wrong. The employee did. That is vicarious liability: the employer answers for torts its employees commit in the course of employment, even though it was not at fault itself.

Why should it pay for someone else's wrong? Four reasons worth having. The employer controls the work and can prevent harm. It profits from the activity. It is better placed to absorb the cost and insure against it. And the exposure makes it select, train and supervise carefully.

Two questions, and both must be answered yes. Stage one: was the person who committed the tort an employee, or in a relationship akin to employment? Stage two: was the tort committed in the course of employment? The Supreme Court reviewed and confirmed that structure in 2023. Two stages, taken separately. Passing the first tells you nothing about the second.

Stage one, and the first fork is employee or independent contractor. Get it wrong and the claim goes against an individual who may have nothing. The classic test comes from Ready Mixed Concrete v Minister of Pensions, from 1968. Multiple factors, but the question at the centre is control: does the employer direct not just what the worker does, but how they do it?

Run the other factors alongside it. Must the worker turn up personally, or can they send a substitute? Is there an ongoing obligation to provide work? Who supplies the equipment? Is the worker integrated into the organisation, or in business on their own account, carrying their own tax and their own profit and loss? That last one does a lot of work.

Limb one is the ordinary employee under a contract. Limb two is wider: a relationship akin to employment, with no contract of service at all. Five incidents mark it out. The defendant is likely to be insured and able to pay. The tort came out of activity done on the defendant's behalf. That activity is part of the defendant's business. The defendant created the risk by engaging the person. And the person is, to some degree, under the defendant's control.

A prisoner working in a prison kitchen fits. No contract, nominal wages, but the work was integral to running the prison and done under its direction, so the prison service answered for his negligence. Now the limit. In Barclays Bank v Various Claimants, from 2020, a doctor carried out pre-employment medicals for the bank. Own practice, own patients, own insurance, a fee for each examination. Genuine independent contractor. Not akin to employment.

Stage two, course of employment, and this is usually the harder half. The traditional Salmond test says an employee is in the course of employment when doing what they were employed to do, or doing an authorised act in an unauthorised way. Back to that forklift on the forbidden walkway. Inside the course of employment, or outside it? Inside.

He was moving his employer's stock, on his employer's forklift, throughout. He just took a route he had been told not to take. A prohibition that regulates how the job is done limits the manner, not the scope. Breaking a rule about method does not put you outside the job.

The modern test is wider still. In Lister v Hesley Hall, from 2002, the House of Lords set the close connection test. Is the connection between the employee's position and the wrongful conduct close enough to make it fair and just to hold the employer liable? A warden at a boarding school abused pupils in his care. The abuse was inextricably interwoven with the very duties he was employed to perform. Liable.

Hold the difference. Salmond asks: was this authorised? Close connection asks: is this sufficiently related to the job? The second is broader, and it catches acts nobody would ever authorise. Use it unless the facts clearly point to a frolic.

Rose v Plenty, from 1976, is the story to remember. A milkman was expressly forbidden from taking children on his float. He let a 13-year-old boy help with the round and gave him a ride. The float overturned and the boy was hurt. Still in the course of employment. He was delivering milk, which is what he was employed to do, and the boy was helping him do it.

Now the other side. A disgruntled employee with a grudge against his employer leaked the payroll data of thousands of colleagues online. His job had given him access to that data. Not vicariously liable. He was pursuing a personal vendetta rather than his employer's business, and the leak was not within the field of activities entrusted to him.

And in 2023 the Supreme Court took the same line about an elder of a religious congregation who raped a member. Stage one was satisfied. His role was akin to employment. Stage two was not: the rape was not closely connected with anything he was authorised to do. Write this one down. Opportunity created by the role is not the same as connection with it.

Which brings us to the frolic. An employee pursuing purely personal purposes, with no connection to the work, takes themselves outside the course of employment. That is the key defence. But it is a question of degree. A sales representative who stops for a quarter of an hour to buy a present, part way along a fifty-mile journey made for her employer, is on a detour. A wholly new and independent journey for her own purposes is a frolic.

Non-delegable duties next, and this is the route that survives when vicarious liability fails. A non-delegable duty is one the defendant cannot shed by handing the work to somebody else. It does not depend on the relationship with the wrongdoer at all. It depends on the nature of the duty. So an independent contractor causes the harm, and the defendant is still liable.

In Woodland v Essex County Council, from 2013, a school arranged swimming lessons at a public pool run by a private company. A pupil was seriously injured by the instructor's negligence. The Supreme Court held the local authority owed a non-delegable duty for the pupil's safety during school-arranged activities, and it could not be delegated. Choosing a contractor carefully is a lesser duty. It does not discharge this one.

But the duty has an edge to it. It reaches only the function the school assumed and then delegated. It does not reach a contractor's collateral negligence, such as careless building or maintenance work on the premises. A contractor who services the boilers badly is a different problem. The school's position there turns on occupiers' liability instead, or on whether it chose a competent contractor.

Where else do these duties arise? Hospitals, for patients accepted for treatment. Employers using contractors for dangerous work. And premises where vulnerable people are in the defendant's care, where the duty grows out of the relationship of dependence.

Defences. Vicarious liability puts the employer in the employee's shoes, so any defence the employee has, the employer has too. Beyond that, three. Frolic of their own, complete, because the liability never arises at all. Novus actus interveniens, a new intervening act that breaks the chain of causation, also complete. And contributory negligence, which is partial.

The threshold for breaking the chain is high. Negligent medical treatment of an injury the defendant caused will not usually break it. The need for treatment, and the risk that it is given carelessly, are foreseeable consequences of the injury. The original wrongdoer answers for the extra harm too.

Contributory negligence runs under the Law Reform (Contributory Negligence) Act 1945. The claimant failed to take reasonable care for their own safety, and damages fall by the proportion the court thinks just and equitable. No fixed percentage. And here is the trap. The employer's own breach does not prevent it: a worker who kept using a machine he knew was dangerous had his damages reduced anyway.

One statute left, and it hands the claimant a shortcut. Take the Employers' Liability (Defective Equipment) Act 1969. An employee is injured by defective equipment the employer provided. The defect is attributable wholly or partly to the fault of a third party, such as the manufacturer. The injury is then deemed to be the employer's own negligence.

Read what that does. The employer is liable even though it took reasonable care and could not possibly have found the defect. It cannot escape by proving it was not at fault, and its remedy is to claim a contribution from the manufacturer. Equipment is read widely, too. In one case a ship counted as equipment.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. Learn the rules and the reasons. The names in this episode are memory pegs, nothing more.

If you keep only three. Wilsons and Clyde Coal Co, for the three duties that make up the employer's own liability. Lister v Hesley Hall, for the close connection test that decides stage two. And Woodland v Essex County Council, for the duty that survives when the wrongdoer is a contractor.

Traps the examiners set. One: running primary and vicarious liability together as though they were one doctrine. They are not. Primary liability is the employer's own breach. Vicarious liability is answering for someone else's tort. Identify the route before you reach for a test.

Two: the contractor. If the facts show someone running their own business with real autonomy, they are almost certainly an independent contractor, and stage one fails before you get anywhere near close connection. Three: do not confuse a non-delegable duty with vicarious liability. One turns on the duty, the other on the relationship.

Four: an uninsured employer is still fully liable. The missing insurance is a criminal offence on top of the claim, not an answer to it.

Five: the employer's own breach does not stop a finding of contributory negligence against the employee. And one more. Opportunity is not connection. If the only link between the job and the wrong is that the job put them in the room, stage two fails.

Quick check. A hospital employs a porter to move patients and equipment between wards. Mid-shift, in a corridor, he recognises a visitor as a man he has a long-running private quarrel with over a family matter. He puts down his trolley, walks over and punches him, fracturing his cheekbone. He has never had any duty to deal with visitors. The hospital accepts he is its employee. Which requirement does the claim fail?

Three candidate answers. One: the relationship requirement, because assaulting a visitor formed no part of the work he was given. Two: the course of employment requirement, because the assault sprang from a private quarrel, not from his duties. Three: neither, because he was on duty, on the premises, when he struck the visitor. Pause here if you want a moment.

The answer is two. The relationship stage is conceded: he is an employee. The assault grew out of a private quarrel that had nothing to do with his duties. It fell outside the field of activities entrusted to him, so the close connection is missing.

Why the others fail. One puts a sound point at the wrong stage. That assaulting a visitor was no part of his work goes to the course of employment, not to the relationship. Three treats being on duty as enough. It is not. A wrong committed at the employee's own post can still fall outside the course of employment.

Five things to take away, and the factory still answers most of them. One: primary liability is the employer's own breach of its own duty, and Wilsons and Clyde Coal Co gives you the three heads. Competent staff, adequate equipment, safe system.

Two: the standard is reasonable care, not strict liability, and it moves as knowledge moves. Three: vicarious liability has two stages and you take them separately. Employee or akin to employment, then course of employment. Passing the first proves nothing about the second.

Four: a prohibition about method does not take an employee outside the job, but a personal vendetta does, because opportunity is not connection. Five: where the wrongdoer is an independent contractor, ask whether the defendant owed a non-delegable duty, because that one cannot be handed over. Next time, Defences.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.