Vicarious liability – What is the legal test?

Under the doctrine of vicarious liability, an employer can be held responsible for a wrongful act carried out by an employee – or by someone whose role is "akin" to that of an employee – even where the employer has done no wrong itself.

For the employer to be liable, there must be a sufficient connection between the wrong committed and the employee's role and duties such as to make it fair to hold the employer vicariously liable.

In Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB, the Supreme Court held that the Jehovah’s Witness organisation was not vicariously liable for the rape of a member of its congregation committed by an elder, at his home, after they had been out evangelising together.

Although the relationship between the organisation and the elder was akin to employment, the commission of the rape was not so closely connected with acts that the elder was authorised to do that it could fairly and properly be regarded as committed by him while acting in the course of his quasi-employment.

The Court reviewed recent case law and explained that there are two stages to consider when determining vicarious liability. The test at stage one is whether the relationship between the employer and the tortfeasor was one of employment or akin to employment. As for stage two, the test is whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of his employment or quasi-employment. The application of this ‘close connection’ test requires a court to carefully consider the facts that link the wrongful conduct to the tortfeasor’s authorised activities.