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Vicarious liability — SQE1 Tort question

A worked single-best-answer question on vicarious liability, with why each wrong option is wrong — the way SQE1 traps candidates.

Vicarious liability

Kai is employed by Velvet Nightclub Ltd as a door supervisor, responsible for controlling entry and removing disruptive customers. One night he ejected Luis for rowdy behaviour. As Luis stood on the pavement outside shouting abuse, Kai followed him a few metres along the street and punched him repeatedly, breaking his jaw. Velvet's written policy prohibits staff from using force beyond what is strictly necessary.

Which of the following best describes whether Velvet is vicariously liable for Kai's assault?

  1. AIt is not liable, because the assault was an intentional criminal act which Velvet had expressly prohibited.
  2. BIt is not liable, because the assault happened outside the nightclub's premises.
  3. CIt is not liable, unless Velvet was negligent in recruiting or supervising Kai.
  4. DOnly Kai is liable, because an employer is never liable for an employee's deliberate violence.
  5. EIt is likely to be liable, because the assault was closely connected with the field of activities Kai was employed to carry out, namely keeping order and removing customers.
Show answer and reasoning
E is the best answer. Vicarious liability requires a relationship of employment (or one akin to it) and a close connection between the tort and the employment, such that it is fair and just to hold the employer liable (Lister v Hesley Hall; Mohamud v WM Morrison Supermarkets). Kai's role involved the use of force to remove customers, and the assault was an unbroken continuation of his ejection of Luis. The fact that the act was criminal and prohibited does not prevent liability.

Rule: An employer is vicariously liable for an employee's tort, including deliberate wrongdoing, if it is so closely connected with the employee's authorised activities that liability is fair and just.

  • A Intentional and prohibited acts can still be within the scope of employment if sufficiently closely connected with it. (wrong rule)
  • B Location is not decisive; the assault was an unbroken sequence following an ejection within Kai's duties. (right rule, wrong facts)
  • C Negligent selection or supervision is a basis of primary liability; vicarious liability does not depend on employer fault. (answers a different question)
  • D Employers can be vicariously liable for deliberate violence where the close connection test is met, as in Mohamud. (wrong rule)

Source: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11; Lister v Hesley Hall Ltd [2001] UKHL 22; Mattis v Pollock [2003] EWCA Civ 887

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