Other Areas of Vicarious Liability | AQA A-Level Law
For Specification 7162
AQA A-Level Law | Free Revision Notes
Estimated study time: 50 minutes
Vicarious liability can make an employer liable for a tort committed by an employee even though the employer did not personally commit the wrongdoing. These Other areas of vicarious liability A-Level Law revision notes focus on the remaining rules after employment status has been considered, particularly whether the tort was committed in the course of employment. You will examine authorised acts, unauthorised methods, prohibited conduct, a worker's own "frolic" and the modern close connection approach. The lesson develops employment status [Lesson 109. Employment status] and applies the principles introduced in the nature and purpose of vicarious liability [Lesson 94. The nature and purpose of vicarious liability]. AQA specifically requires the nature and purpose, employment status and other areas of vicarious liability.
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain the stages required before an employer can be vicariously liable.
Explain what it means for a tort to be committed in the course of employment.
Distinguish an authorised act from an authorised act carried out in an unauthorised way.
Explain when an employee may be on a frolic of their own.
Apply the close connection approach to intentional and other unauthorised conduct.
Analyse how the rules reflect the strict liability nature and purpose of vicarious liability.
Revision Notes 📚
What is vicarious liability?
Vicarious liability allows an employer to be held liable for a tort committed by an employee in the course of employment.
The employer does not need personally to have committed the tort.
This makes vicarious liability different from ordinary negligence against the employer. The claimant is not necessarily alleging that the employer personally:
behaved carelessly
breached a duty of care
caused the accident through their own acts.
Instead, liability is imposed because of the relationship between the employer and the person who committed the tort, together with the connection between that tort and the employment.
AQA describes the nature and purpose of vicarious liability as required theory content and separately requires students to understand employment status and the other areas of vicarious liability.
The three-stage structure
AQA's 2024 examiner report gives a particularly useful three-stage framework:
The worker must have committed a tort.
The required relationship between the worker and employer must exist.
The tort must have been committed in the course of employment.
This lesson focuses mainly on the third stage.
The employment relationship is covered in detail in employment status [Lesson 109. Employment status].
Stage 1: the employee must commit a tort
There can be no vicarious liability unless the worker has first committed a tort.
This sounds obvious, but AQA examiner reports have identified students who begin by discussing the employer before establishing liability against the employee.
For example, if an employee negligently injures somebody while driving for work, first establish the employee's negligence.
If an employee gives careless professional advice causing pure economic loss, first establish the worker's liability under negligent misstatements [Lesson 102. Negligent misstatements].
Only after identifying the underlying tort should you ask whether the employer is vicariously liable.
AQA's 2022 report expressly recommended this logical order.
Stage 2: the required employment relationship
Ordinarily, the tortfeasor must be an employee rather than an independent contractor.
AQA directly tested this distinction in 2025, confirming that employers may be vicariously liable for employees rather than independent contractors.
Apply:
the control test
the integration test
the multiple or economic reality test
as explained in employment status [Lesson 109. Employment status].
AQA materials also recognise circumstances involving a relationship akin to employment, but the fundamental task remains to establish a sufficiently employment-like relationship before moving on to the course-of-employment issue.
Stage 3: the course of employment
Even where the tortfeasor is an employee, the employer is not automatically liable for everything that person does.
The tort must have been committed in the course of employment.
The key issue is the relationship between:
the job the employee was engaged to perform
the conduct which caused the claimant's loss.
AQA mark schemes repeatedly identify this as the central issue after employment status has been established.
The basic possibilities
The employee's conduct may fall into several broad categories:
Employee's conduct | Likely significance |
Authorised act carried out properly | Clearly within employment |
Authorised act carried out negligently or in an unauthorised manner | Employer may still be liable |
Conduct contrary to an employer's instruction | May still fall within employment |
Conduct sufficiently closely connected with the employee's role | Employer may be liable |
Entirely personal activity or frolic of their own | Employer is less likely to be liable |
The task is not simply to ask whether the employer approved what happened.
If that were the test, employers could avoid vicarious liability whenever an employee acted carelessly, because negligence itself is normally something the employer would not authorise.
Authorised acts
What is an authorised act?
An authorised act is conduct the employee is employed or permitted to carry out as part of their work.
If an employee commits a tort while carrying out an authorised task in the ordinary way, the connection with employment will usually be straightforward.
Example
A delivery driver is employed to drive a company vehicle and make deliveries.
While driving between customers, the employee negligently fails to pay attention and causes a collision.
Driving to make deliveries is an authorised act.
If negligence is established against the driver and the other requirements are satisfied, there is a strong argument that the tort occurred in the course of employment.
Century Insurance v Northern Ireland Road Transport Board
AQA repeatedly identifies Century Insurance v Northern Ireland Road Transport Board as an authority relevant to the course-of-employment rules.
It can be used to support the principle that an employer may be liable where an employee commits a tort while carrying out work within the scope of their employment.
You do not need a long narrative of the case. Use the authority to support the relevant principle.
Authorised acts carried out in an unauthorised manner
An unauthorised method does not necessarily take the employee outside employment
A particularly important rule is that the employer may remain liable where:
the employee is performing an authorised act
but performs it in a prohibited, negligent or otherwise unauthorised way.
AQA examiner reports repeatedly identify the distinction between:
an unauthorised act
an authorised act carried out in an unauthorised manner.
This distinction is essential.
Why does this matter?
Suppose an employer authorises an employee to make deliveries but instructs them:
"Never exceed the speed limit."
The employee ignores the instruction and negligently speeds while making a delivery.
The employer cannot necessarily argue:
"We prohibited speeding, so the employee was outside the course of employment."
The employee may still be carrying out the authorised task of delivering goods, simply in an unauthorised manner.
Limpus v London General Omnibus
Limpus v London General Omnibus is an authority repeatedly identified by AQA for this principle.
For examination purposes, it supports the idea that disobeying instructions about the manner in which authorised work is performed does not automatically remove the conduct from the course of employment.
Rose v Plenty
AQA also identifies Rose v Plenty when considering employees who act contrary to an employer's instruction while continuing to perform work connected with their employment.
Again, the key point is not to memorise a long factual narrative.
The principle is:
A prohibited method of performing an authorised task may still fall within the course of employment.
Direct instructions are relevant but not automatically decisive
A factual scenario may state that an employer expressly told an employee:
not to perform a task in a particular way
not to involve another person
not to take a particular action.
Do not immediately conclude:
"The employer cannot be liable because the employee disobeyed instructions."
AQA mark schemes expressly include disobeying a direct instruction as something to analyse when deciding whether the employee nevertheless acted in the course of employment.
Ask instead:
Was the employee still carrying out the employer's work, merely in an unauthorised way?
Unauthorised acts
When does conduct become genuinely separate from the employment?
The position is different where the employee does something which is not merely an unauthorised way of performing their job, but is an activity outside what they were employed to do.
This may take the employee outside the course of employment.
The central comparison is:
Unauthorised method of authorised work
versus
Completely unauthorised activity
AQA materials use cases such as Beard v London General Omnibus when discussing conduct falling outside the relevant employment.
Example
A worker is employed only to sell tickets at a transport depot.
Without permission or any employment reason, the worker decides to operate specialist machinery which they have never been employed to use.
If their operation of that machinery causes injury, there is a stronger argument that this is an unauthorised act, rather than simply a poor method of doing authorised work.
The employer may therefore be less likely to be vicariously liable.
The employee's own "frolic"
What is a frolic of their own?
An employee is sometimes described as being on a frolic of their own where they have left the employer's business and are pursuing a substantially personal activity.
AQA examiner materials regularly use this expression when explaining circumstances in which an employer may not be liable.
The question is:
At the time of the tort, was the employee still engaged in the employer's business, or had they substantially departed from it for their own purposes?
Example
An employee is instructed to drive directly from the workplace to deliver equipment to a customer.
Instead, the employee abandons the work task and drives elsewhere entirely for a personal activity.
A tort committed during that separate personal venture may be outside the course of employment.
Hilton v Thomas Burton
AQA identifies Hilton v Thomas Burton (Rhodes) Ltd as a possible authority illustrating conduct outside the course of employment or a worker's own frolic.
The important exam lesson is to focus on the purpose and context of the employee's activity.
A small departure is not automatically a frolic
Do not use "frolic" merely because:
the employee breaks an instruction
the employee behaves carelessly
the employee's conduct has a personal element
the incident occurs outside normal office hours.
Instead, examine whether the employee's activity remains sufficiently connected to the job.
This is especially important when applying the modern close connection approach.
The close connection test
What is the close connection test?
The close connection test asks whether the employee's tort is so closely connected with their employment that it is appropriate to impose vicarious liability upon the employer.
AQA mark schemes express the question in terms of whether an act is:
so closely connected to the employment that it is fair and just to hold the employer liable.
This allows the court to look beyond simple labels such as "authorised" or "unauthorised".
Lister v Hesley Hall
Lister v Hesley Hall is a principal authority identified by AQA for the modern close connection approach.
For exam purposes, use it to support the principle that liability may arise where the employee's wrongdoing has a sufficiently close connection with the role entrusted to them.
Applying the close connection test
A useful method is to ask:
What was the employee's job or role?
What functions or activities were entrusted to them?
What exactly did the employee do wrong?
How closely was that wrongful conduct connected with their work?
Was the employee acting in a way linked to the employer's business or pursuing a separate personal venture?
Is the connection sufficiently close to justify vicarious liability?
Example
A professional adviser is employed to give valuations to the employer's clients.
At a social event outside working hours, the adviser gives a careless valuation to someone who has already contacted the employer about using its services.
Arguments supporting vicarious liability might include:
giving valuations is central to the employee's work
the statement concerned precisely the expertise the employee exercises for the employer
the recipient already had contact with the employer's business.
Arguments against liability might include:
the conversation occurred socially
it occurred outside normal working hours
the employer had not instructed the employee to carry out that particular valuation.
The correct approach is to analyse both sides.
This resembles the issue raised in AQA's 2024 examination, where stronger students debated whether a valuation given outside office hours was authorised work carried out improperly or a personal "frolic".
Time and place do not decide the question by themselves
The fact that an employee acts:
outside the workplace
outside normal hours
does not automatically mean the act is outside the course of employment.
Similarly, simply being:
at work
during working hours
does not automatically establish the required connection.
The court considers the relationship between the wrongful act and the employee's role.
Intentional and criminal acts
Vicarious liability is not necessarily limited to accidental negligence.
AQA's 2023 mark scheme recognises that employers may potentially face vicarious liability for torts involving criminal acts, depending on the required connection with employment.
The fact that conduct is:
deliberate
unauthorised
criminal
does not by itself answer the vicarious liability question.
The close connection with employment must still be analysed.
Why intentional wrongdoing can create difficulty
An employer will rarely expressly authorise an employee to commit an intentional tort or criminal act.
If express permission were required, vicarious liability would almost always fail in such cases.
The close connection test therefore focuses instead on the connection between:
the employee's entrusted role
the wrongdoing.
Modern authorities
AQA mark schemes identify several authorities relevant to the boundaries of the modern approach, including:
Lister v Hesley Hall
Mohamud v Morrisons
WM Morrison Supermarkets v Various Claimants
Trustees of the Barry Congregation of Jehovah's Witnesses v BXB.
For A-Level purposes, the central task remains to apply the close connection principle rather than provide lengthy case histories.
An employee's motive can matter
Where an employee is acting entirely for personal reasons, this may indicate that the connection with employment is insufficient.
That does not mean that any personal motive automatically defeats liability.
Instead, consider the complete context.
Ask:
Was the employee still performing a function entrusted by the employer?
Did the employment merely provide an opportunity to commit an unrelated personal act?
Had the employee effectively abandoned the employer's business?
These questions help distinguish employment-connected wrongdoing from a personal frolic.
A complete vicarious liability framework
For a full problem, use the following sequence.
Step 1: Establish the worker's tort
Identify and prove the underlying tort first.
For example:
negligence
negligent misstatement
another tort supported by the scenario.
Step 2: Establish the required relationship
Apply employment status [Lesson 109. Employment status].
Ask whether the tortfeasor is:
an employee
in an appropriately employment-like relationship
rather than an independent contractor.
Step 3: Identify the employee's authorised role
State what the employee was actually employed to do.
This provides the reference point for deciding whether the wrongdoing was connected with employment.
Step 4: Classify the wrongful conduct
Ask whether it was:
an authorised act
an authorised act carried out in an unauthorised way
a completely unauthorised act
a personal frolic.
Step 5: Apply the close connection test
Ask whether the tort is sufficiently closely connected to the employment that it is fair and just to impose vicarious liability.
Step 6: Reach a reasoned conclusion
Avoid categorical assertions if the facts are ambiguous.
For example:
"Although the employee was expressly prohibited from carrying passengers, making deliveries remained an authorised part of the job. The conduct may therefore be characterised as an authorised task carried out in an unauthorised manner rather than a wholly separate frolic. There is consequently a strong argument that the tort occurred in the course of employment."
Step 7: Consider the remedy
If vicarious liability is established, the claimant may seek compensation from the employer.
The general principles are developed in compensatory damages [Lesson 114. Compensatory damages].
Worked application: authorised act carried out negligently
Imran is employed by QuickDrop Ltd to drive a delivery van and deliver parcels.
QuickDrop gives Imran written instructions stating that drivers must never use a mobile phone while driving.
While travelling between two customer addresses during his delivery round, Imran looks at his phone. He loses control of the van and negligently injures Beth.
Assume Imran is an employee and has committed the tort of negligence.
Analysis
Imran has committed a tort.
He is an employee of QuickDrop.
Driving between customer addresses and delivering parcels are authorised parts of his job.
Looking at the phone while driving is prohibited and negligent.
However, Imran has not abandoned his delivery work.
He is performing an authorised act, driving the delivery route, in an unauthorised manner.
The conduct remains closely connected with the employment.
QuickDrop is therefore likely to be vicariously liable despite having expressly prohibited phone use.
This illustrates an important feature of vicarious liability:
An employer's instruction to behave carefully does not automatically prevent liability when an employee negligently performs the authorised job.
Worked application: prohibited method
A café employs Lydia to deliver lunches to nearby offices.
Her employer tells her expressly that she must never allow another person to help with the deliveries.
Lydia nevertheless asks a friend to assist her because she believes this will allow more customers to receive their orders quickly. During the delivery activity, Lydia negligently causes injury to another road user.
Relevant arguments include:
delivering meals is an authorised part of Lydia's work
she is trying to perform the employer's business
she has disobeyed an instruction about how that work should be performed
this may therefore be an authorised act carried out in an unauthorised manner
Rose v Plenty may support the analysis
the employer may still be vicariously liable.
Do not conclude that the employer automatically escapes liability merely because Lydia ignored an instruction.
Worked application: frolic of the employee's own
Now change the facts.
During a delivery route, Lydia abandons all deliveries for several hours to visit a friend for entirely personal reasons.
While engaged in that separate personal activity, she negligently causes an accident.
The employer now has a stronger argument that:
Lydia had abandoned the employer's business
the personal journey was not a method of completing the authorised work
she was on a frolic of her own
the tort was insufficiently connected to her employment.
Vicarious liability is therefore less likely.
Worked application: negligent professional statement
Ash works as a professional valuer for HomeMarket Ltd.
At an evening social event, Priya tells Ash that she has contacted HomeMarket because she is considering selling her house. Ash gives Priya a careless valuation using the expertise he normally exercises for HomeMarket.
Assume Ash is an employee and the statement amounts to a negligent misstatement.
The course-of-employment issue is less clear.
Arguments supporting liability
Valuing property is precisely the work Ash is employed to perform.
Priya has already contacted HomeMarket.
Ash is using the professional expertise associated with his employment.
The conduct may therefore be closely connected with the work entrusted to him.
Arguments against liability
The conversation occurs at a social event.
It is outside normal working hours.
HomeMarket did not specifically instruct Ash to value Priya's property.
Ash may have been acting personally rather than on behalf of the employer.
A strong answer should analyse both sides and then reach a reasoned conclusion.
AQA's 2024 examiner report indicates that either conclusion can be credited where supported by accurate legal reasoning and close application of the facts.
Why is vicarious liability described as strict liability?
Vicarious liability has an important relationship with fault.
The employer does not need personally to have acted wrongly.
AQA's 2023 mark scheme expressly describes vicarious liability as largely strict liability in nature. An employer could potentially be liable despite:
taking precautions
issuing clear instructions
personally committing no tort.
This does not mean that the employee can avoid committing a tort.
The employee's wrongdoing must still be established.
The strict liability point concerns the position of the employer.
Do not confuse "liable" with "at fault"
This was specifically identified as an examiner-report problem.
Some students wrote:
"The employer is at fault because they are vicariously liable."
That is inaccurate.
Vicarious liability may make an employer liable without personal fault.
AQA's 2023 examiner report expressly identified confusion between the concepts of fault and liability.
A better statement is:
"The employer may be legally liable even though the employee, rather than the employer, committed the tort."
An employer might nevertheless have been indirectly at fault
In some factual situations an employer might separately have behaved poorly, for example in:
recruitment
training
supervision.
AQA's 2023 examiner report recognised that students could discuss such ideas when evaluating fault.
However, this is not required in order to establish vicarious liability.
The central doctrine can impose liability even where no personal wrongdoing by the employer is proved.
How does this connect with the purpose of vicarious liability?
The rules help explain why the law imposes liability upon an employer for another person's wrongdoing.
AQA requires a basic understanding of the nature and purpose of vicarious liability.
One policy reason specifically recognised in AQA's examiner materials is compensation.
An employer may have greater financial resources, sometimes described as deeper pockets, than an individual employee. Imposing vicarious liability can therefore increase the likelihood that an injured claimant will actually obtain compensation.
This does not mean employers are liable for everything employees do.
The course-of-employment requirement creates a limit.
The rules balance claimant protection and limits on employers
The doctrine attempts to balance two competing ideas.
Protecting claimants
Where an employee commits a tort while carrying out employment-connected activity, vicarious liability can provide the claimant with an effective defendant from whom compensation may be obtained.
Limiting the employer's responsibility
An employer is not generally liable where:
the tortfeasor is an independent contractor rather than an employee or equivalent
the employee is on a genuine personal frolic
the wrongful act is insufficiently connected with employment.
The course-of-employment and close-connection rules therefore prevent the doctrine from becoming unlimited.
Why instructions do not automatically remove liability
The purpose of the doctrine also helps explain why an employer cannot simply escape responsibility by saying:
"We told the employee not to do that."
If disobeying any instruction automatically defeated liability, an employer could avoid many claims simply by issuing instructions such as:
"do not drive negligently"
"do not injure customers"
"do not make mistakes."
Instead, the court asks whether the employee was still carrying out employment-connected activity.
This allows compensation where the employment has a sufficiently close connection with the tort while still excluding genuinely personal conduct.
Vicarious liability and fault compared
Question | Position |
Must the employee commit a tort? | Yes |
Must the employee normally be an employee or in the required employment-like relationship? | Yes |
Must the tort be sufficiently connected with employment? | Yes |
Must the employer personally have committed negligence? | No |
Does a clear employer instruction automatically prevent liability? | No |
Can a personal frolic take conduct outside employment? | Yes |
Can intentional or criminal conduct ever fall within vicarious liability? | Potentially, if the required close connection exists |
This explains why AQA's 2023 materials describe the doctrine as largely strict liability while still recognising significant limits on its operation.
Important legal authorities
Century Insurance v Northern Ireland Road Transport Board
Useful authority for torts committed while an employee is carrying out employment activity.
Limpus v London General Omnibus
Useful authority for the distinction between:
conduct outside employment
an authorised act performed in an unauthorised way.
Rose v Plenty
Useful where an employee disobeys an instruction but remains engaged in performing the employer's work.
Lister v Hesley Hall
Principal authority identified by AQA for the close connection approach.
Mohamud v Morrisons
Identified by AQA in relation to the close connection between wrongdoing and employment.
WM Morrison Supermarkets v Various Claimants
Identified in AQA materials as a modern authority relevant to determining the boundaries of the close connection test.
Beard v London General Omnibus
Useful when considering conduct which is outside what the employee was authorised or employed to do.
Hilton v Thomas Burton (Rhodes) Ltd
Useful when analysing a genuine personal frolic.
Do not turn an examination answer into a list of cases.
Choose authorities which support the precise legal distinction raised by the facts.
A reliable examination structure
When asked whether an employer is vicariously liable, use:
Tort → status → authorised role → nature of act → close connection → conclusion
Paragraph 1: underlying tort
State whether the employee has committed the relevant tort.
Paragraph 2: employment relationship
Briefly conclude on status using employment status [Lesson 109. Employment status].
Do not repeat a lengthy employment-status analysis if the question already establishes that the person is an employee.
Paragraph 3: authorised role
Identify what the employee was employed to do.
Paragraph 4: classify the wrongdoing
Was it:
an authorised act?
an unauthorised method?
a wholly unauthorised act?
a frolic?
Paragraph 5: close connection
Explain why the conduct is or is not sufficiently closely connected with the employment.
Paragraph 6: conclusion
State whether it is fair and just to impose vicarious liability on the employer.
If liability is established, the claimant may seek compensatory damages [Lesson 114. Compensatory damages].
This structure is especially useful when tackling synoptic tort problems [Lesson 116. Synoptic tort problems].
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Vicarious liability | Liability imposed on an employer for a tort committed by an employee in the course of employment. | Identify the possible claim against an employer after establishing the employee's tort. |
Course of employment | The requirement that the employee's tort is sufficiently connected with the work they are employed to perform. | Decide whether the employer can be held responsible for the employee's wrongdoing. |
Unauthorised manner | A prohibited or improper way of carrying out an act which is itself part of the employee's work. | Explain why disobeying instructions does not necessarily remove the act from employment. |
Frolic of their own | A substantially personal activity in which the employee has departed from the employer's business. | Argue that the connection with employment is too weak for vicarious liability. |
Close connection test | The test asking whether the wrongdoing is so closely connected with employment that it is fair and just to impose liability on the employer. | Analyse difficult cases involving unauthorised, intentional or potentially personal conduct. |
Hints from the Examiner Reports 💡
Examiner hint: Use the correct three-stage order: establish that the worker committed a tort, determine the employment relationship and then consider whether the tort occurred in the course of employment. AQA's 2024 report specifically identifies this structure.
Examiner hint: Do not assume that disobeying an instruction automatically takes an employee outside the course of employment. Consider whether the employee is still performing an authorised task in an unauthorised manner.
Examiner hint: Distinguish an unauthorised method from a genuine frolic of the employee's own. AQA's 2022 report identified these concepts as central to successful analysis of course of employment.
Examiner hint: Apply the close connection test to the particular facts. Do not merely write that the act was "closely connected". Explain what the employee was employed to do and why the wrongdoing is, or is not, connected to that role.
Examiner hint: Facts such as acting outside office hours do not automatically determine the answer. In the 2024 examination, strong responses considered whether an out-of-hours professional valuation was nevertheless sufficiently connected with the employee's normal work.
Examiner hint: Keep fault and liability separate. AQA's 2023 report identified students who wrongly said that an employer must be "at fault" simply because vicarious liability was imposed. The doctrine can impose liability without personal employer fault.
Examiner hint: When discussing the purpose of vicarious liability, connect the policy point to the legal rule. AQA has credited compensation and the employer's deeper pockets as a reason for imposing liability without personal employer fault.
Common Mistakes ⚠️
Mistake: Starting with the employer instead of the employee's tort
Why this is incorrect: Vicarious liability depends upon an underlying tort committed by the worker.
How to improve: Use:
employee's tort → employment relationship → course of employment.
Mistake: Assuming employee status automatically proves vicarious liability
Why this is incorrect: The tort must also have been committed in the course of employment.
How to improve: After applying employment status [Lesson 109. Employment status], separately analyse the employee's wrongful act.
Mistake: Saying an employer cannot be liable because it prohibited the conduct
Why this is incorrect: An employee may still be performing an authorised task in an unauthorised manner.
How to improve: Ask whether the prohibition concerned the method of doing the job or whether the employee had abandoned the job altogether.
Mistake: Calling every unauthorised act a frolic
Why this is incorrect: A frolic involves a substantial departure for personal purposes. Ordinary disobedience or negligence while doing the job is different.
How to improve: Identify what the employee was actually doing at the time of the tort and whose purposes they were pursuing.
Mistake: Treating working outside normal hours as decisive
Why this is incorrect: Time and place are relevant facts, but the central question is the connection between the tort and the employment.
How to improve: Apply the close connection test to the employee's actual role and wrongdoing.
Mistake: Assuming intentional or criminal conduct can never create vicarious liability
Why this is incorrect: AQA materials recognise that the close connection principle can be relevant even to deliberate or criminal wrongdoing.
How to improve: Do not decide the issue simply from the seriousness of the misconduct. Analyse its connection with the role entrusted to the employee.
Mistake: Saying vicarious liability proves employer fault
Why this is incorrect: The employer may be liable despite having personally done nothing wrong.
How to improve: Describe vicarious liability as largely strict liability from the employer's perspective.
Mistake: Treating strict liability as unlimited liability
Why this is incorrect: An employer is not liable for everything an employee does.
How to improve: Remember the limits created by employment status, the course-of-employment requirement and the close connection test.
Exam-Style Questions ✍️
Question 1
Which one of the following is most likely to prevent an employer being vicariously liable for an employee's tort?
A. The employee carried out an authorised act negligently.
B. The employee disobeyed an instruction about how authorised work should be performed.
C. The employee committed the tort while on a wholly personal frolic unrelated to the employer's business.
D. The employer had instructed employees to take reasonable care.
[1 mark]
Question 2
Explain what is meant by committing a tort in the course of employment.
[2 marks]
Question 3
Explain the difference between:
an authorised act carried out in an unauthorised manner
a frolic of the employee's own.
[4 marks]
Question 4
A delivery company employs Arun to deliver parcels.
The company expressly tells all drivers never to use a mobile phone while driving. During a delivery route, Arun reads a message, loses control of the van and negligently injures Bea.
Assuming Arun has committed the tort of negligence, suggest why the company's instruction may not prevent it being vicariously liable.
[5 marks]
Question 5
Cerys is employed by a removals business to drive furniture between customers' homes.
During a working day, she abandons her deliveries and drives 25 miles in the opposite direction to visit a friend for purely personal reasons. While travelling to the friend's house, she negligently injures Dev.
Explain why the removals business may argue that Cerys was outside the course of employment.
[5 marks]
Question 6
Eva is employed by HomeValue Ltd as a property valuer.
At a friend's evening party, Finn tells Eva that he has already contacted HomeValue about selling his house. Eva gives him a careless valuation. Assume that her statement amounts to a negligent misstatement causing Finn financial loss.
Analyse whether HomeValue may be vicariously liable for Eva's tort.
[10 marks]
Question 7
Gavin owns a delivery company. His employee, Hana, is employed to transport goods to customers.
Gavin tells Hana never to carry passengers. Hana nevertheless allows a friend to accompany her because the friend helps her unload deliveries more quickly. While Hana is making deliveries, her negligent driving injures another road user.
Advise the injured road user as to whether Gavin may be vicariously liable.
[10 marks]
Question 8
Analyse the rules governing whether an employer will be vicariously liable for a tort committed by an employee, and explain how those rules reflect the nature and purpose of vicarious liability.
[15 marks]
Mark Scheme
Question 1
Answer: C. [1 mark]
A wholly personal frolic may place the employee's conduct outside the course of employment.
Question 2
Award up to 2 marks:
1 mark: The employee's tort must have a sufficient connection with the work they are employed to perform.
1 mark: This can include authorised work and, in appropriate circumstances, authorised work carried out in an unauthorised manner.
Question 3
Award up to 4 marks:
An authorised act carried out in an unauthorised manner occurs where the employee is still performing the employer's work but performs it in a prohibited or improper way.
Such conduct may remain within the course of employment.
A frolic of the employee's own involves a substantial departure from the employer's business for the employee's personal purposes.
A tort committed on a genuine frolic is less likely to result in vicarious liability.
Credit relevant authority such as Limpus v London General Omnibus, Rose v Plenty or Hilton v Thomas Burton (Rhodes) Ltd.
Question 4
Award up to 5 marks.
Indicative content:
Arun has committed an underlying tort.
Driving the delivery van between customers is an authorised part of his employment.
The employer has prohibited phone use, but this concerns the manner in which the authorised driving should be performed.
Arun has not abandoned the delivery route for a personal activity.
His negligence may therefore amount to an authorised act carried out in an unauthorised manner.
The tort remains closely connected with his work.
The employer may consequently be vicariously liable despite issuing the instruction.
Appropriate authority such as Limpus or Century Insurance may support the reasoning.
Question 5
Award up to 5 marks.
Indicative content:
Driving deliveries is normally within Cerys's employment.
However, she has abandoned the delivery work.
She travels 25 miles in the opposite direction.
The journey is undertaken solely to visit her friend.
It therefore appears to be for a personal rather than employment purpose.
This supports the argument that Cerys was on a frolic of her own.
The tort may consequently be insufficiently connected with her employment for vicarious liability.
Credit appropriate authority such as Hilton v Thomas Burton (Rhodes) Ltd.
Question 6
Award up to 10 marks for knowledge, application and reasoned legal argument.
Indicative content:
Eva has committed a tort in the form of negligent misstatement.
The facts establish that she is employed by HomeValue.
The remaining question is whether her tort was committed in the course of employment.
Giving property valuations is precisely the professional role Eva performs for HomeValue.
Finn has already contacted HomeValue about selling his property, strengthening the connection with the employer's business.
Eva is therefore performing an activity closely associated with her employment.
However, the statement is given at an evening social event.
HomeValue has not specifically asked Eva to value Finn's property.
These facts support an argument that she was acting personally or on a frolic of her own.
The court should consider whether the statement was an authorised employment activity carried out informally or whether it was a genuinely personal act.
The close connection test, supported by Lister v Hesley Hall, should be applied.
A reasoned conclusion either way should be credited where supported by the facts.
If the connection is sufficiently close, HomeValue may be vicariously liable and Finn may seek compensatory damages.
Question 7
Award up to 10 marks.
Indicative content:
Hana must first have committed a tort, here negligent driving.
She is stated to be Gavin's employee.
Driving goods to customers is an authorised act.
Hana has disobeyed the instruction not to carry passengers.
However, she remains on her delivery route and is still performing the employer's business.
The friend is helping to unload deliveries, strengthening the connection with the work.
This may therefore be an authorised act performed in an unauthorised manner rather than a personal frolic.
The employer's prohibition is relevant but does not automatically prevent liability.
Rose v Plenty and/or Limpus v London General Omnibus may support the analysis.
Hana's negligent driving is sufficiently connected with her employment.
There is therefore a strong argument that Gavin is vicariously liable.
The claimant may potentially recover compensatory damages from the employer.
Question 8
Award up to 15 marks according to the quality of legal knowledge, analysis and evaluation.
A strong response may include:
definition of vicarious liability as liability imposed upon an employer for an employee's tort committed in the course of employment
recognition that the employee must first have committed a tort
the requirement for an employee or sufficiently employment-like relationship
distinction from an independent contractor, linked to employment status [Lesson 109. Employment status]
the requirement that the tort be committed in the course of employment
authorised acts
authorised acts carried out in an unauthorised or negligent manner
the significance, but not automatic decisiveness, of disobeying employer instructions
Limpus v London General Omnibus
Rose v Plenty
wholly unauthorised conduct
the concept of a frolic of the employee's own
possible use of Beard v London General Omnibus or Hilton v Thomas Burton (Rhodes) Ltd
the modern close connection test
Lister v Hesley Hall
whether the tort is so closely connected with employment that it is fair and just to hold the employer liable
recognition that intentional or criminal conduct is not automatically outside vicarious liability
the distinction between personal employer fault and legal liability
explanation of the largely strict liability nature of vicarious liability from the employer's perspective
recognition that clear instructions and precautions do not automatically prevent liability
compensation as a purpose of the doctrine
the employer's greater financial resources or "deeper pockets" as a policy reason recognised by AQA
balancing claimant compensation against the need to restrict employers' liability to conduct sufficiently connected with employment
a substantiated conclusion explaining that the doctrine can impose liability without personal employer fault but does not make an employer responsible for every act committed by an employee.
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