The Expanding Boundaries of Vicarious Liability: A Necessary Evolution or a Step Too Far
Introduction
Vicarious liability is one of the most contentious doctrines in tort law, challenging the fundamental principle that liability should be based on fault. Traditionally, employers have been held responsible for the wrongful acts of their employees committed in the course of employment. However, in recent years, courts have extended this doctrine beyond conventional employment relationships to include relationships “akin to employment,” imposing liability on institutions, religious organizations, and even local authorities for the actions of individuals outside their direct control.
This paper critically examines the expanding scope of vicarious liability, with a particular focus on the latest development in DJ v Barnsley Metropolitan Borough Council [2024] EWCA Civ 841. It will assess whether this expansion serves a necessary function in ensuring justice for victims or whether it has overreached, imposing an unfair burden on institutions that lack control over the wrongdoers.
The Development of Vicarious Liability: From Employees to Institutional Responsibility
Traditional Foundations
Vicarious liability has long been rooted in the employment relationship. The doctrine originally applied where an employee, in the course of their employment, committed a tort that could be connected to their work duties. Early case law, such as Limpus v London General Omnibus Co (1862), established that an employer could be liable even when an employee acted contrary to instructions, provided the wrongful act was performed in furtherance of their employer’s business.
Over time, this principle was refined through the two-stage test, which remains the cornerstone of vicarious liability:
Stage 1 – Relationship Test: Was the wrongdoer in a relationship akin to employment with the defendant?
Stage 2 – Connection Test: Was the wrongful act so closely connected to the wrongdoer’s assigned role that it should fairly be considered an act within the scope of their employment?
While these stages were initially applied to traditional employment relationships, courts began extending the doctrine to non-traditional work relationships, broadening the scope of institutional liability.
The Expansion of Vicarious Liability Beyond Employment
The Shift to Relationships "Akin to Employment"
The decision in Lister v Hesley Hall Ltd [2001] UKHL 22 marked a turning point in vicarious liability, introducing the close connection test. In Lister, a boarding school was found vicariously liable for the sexual abuse committed by a warden, even though the abuse was not within his official duties. The key factor was that his role provided him with authority and access that enabled the abuse.
Subsequent cases further expanded the doctrine:
Cox v Ministry of Justice [2016] UKSC 10 – The Supreme Court ruled that a prisoner working in a prison kitchen was akin to an employee, making the Ministry of Justice vicariously liable for his negligence. This case broadened the relationship test, holding that employment-like structures where work benefits the employer can trigger liability.
Various Claimants v Barclays Bank plc [2020] UKSC 13 – The Court ruled that Barclays was not liable for the misconduct of a doctor conducting medical examinations for them, emphasizing that truly independent contractors should not be considered “akin to employees.”
Armes v Nottinghamshire County Council [2017] UKSC 60 – The Supreme Court found a local authority vicariously liable for abuse committed by foster carers, despite the fact that the carers were not employees. The judgment emphasized that the placement of children in foster care created an inherent risk, justifying the imposition of liability.
These cases illustrate the widening scope of vicarious liability, shifting the focus from employment control to institutional benefit and risk creation.
DJ v Barnsley Metropolitan Borough Council [2024]: A New Frontier?
The Court of Appeal’s decision in DJ v Barnsley Metropolitan Borough Council [2024] EWCA Civ 841 has pushed the boundaries of vicarious liability even further.
The Facts
The claimant (DJ) had been placed in foster care with his maternal aunt and uncle after being abandoned by his parents.
The local authority conducted fostering assessments, approved the placement, provided financial support, and supervised the arrangement.
DJ later alleged that he was sexually abused by his foster uncle and sued the local authority, arguing that they were vicariously liable for the abuse.
The Court’s Ruling
The Court of Appeal found the local authority vicariously liable, despite the unique challenge that the foster carers were also family members. The ruling confirmed that:
The relationship between the foster carers and the local authority was akin to employment.
The foster carers were formally assessed, approved, and financially supported by the local authority.
Their role was closely integrated into the local authority’s statutory duty to care for vulnerable children.
The abuse was closely connected to the foster placement.
The foster parents’ position of trust was created by the local authority, giving them authority over DJ.
The abuse occurred within the structure of the fostering system, making it fair, just, and reasonable to impose liability.
This decision extends liability to family placements, raising concerns that local authorities could now be liable for misconduct in private family settings.
The Case Against Further Expansion
While vicarious liability serves a critical function in victim compensation, its continued expansion has raised concerns:
1. Erosion of the Fault Principle
Vicarious liability was originally an exception to the principle that liability should be based on fault. As it expanded, it began to resemble strict liability, punishing institutions for acts they could not reasonably prevent.
2. The Financial and Administrative Burden on Institutions
The more courts hold employers, charities, and local authorities liable, the greater the cost burden on these organizations. Expanding liability may lead to:
Higher insurance premiums and legal costs.
Increased reluctance to provide social services, particularly in the foster care system.
Potential deterrence of volunteers and non-traditional workers, as seen in concerns raised in Christian Brothers (2012).
3. The Limits of Control
A fundamental justification for vicarious liability is that an employer exerts control over an individual’s work. However, cases like Cox and DJ v Barnsley suggest that control is no longer essential. Removing this requirement risks overextending liability to situations where institutions have little actual oversight.
Finding a Balanced Approach
The evolution of vicarious liability has undoubtedly helped victims seek justice, particularly in historical abuse cases. However, if courts continue to broaden the doctrine, they must consider:
Clearer limits on what constitutes "akin to employment".
Distinguishing institutional responsibility from personal relationships (e.g., family fostering vs. professional fostering).
Ensuring liability aligns with control and risk creation, preventing an unfair burden on organizations.
Cases like DJ v Barnsley suggest that courts are not yet ready to slow the expansion of vicarious liability. However, as legal challenges mount, there may be a future pushback to restore balance.
A Proposal for Reform: A Temporal Cutoff for Liability
To restore fairness and legal certainty, vicarious liability should be limited to wrongful acts that are foreseeable within a defined time period after the employment relationship commences.
Core Principles of the Proposed Reform:
Liability Ends with the Termination of the Relationship, Except in Foreseeable Cases
Once the employer-employee or quasi-employment relationship has formally ended, liability should also end, unless:
The wrongful act occurred within a reasonable timeframe post-employment.
The employer knew or ought to have known that the individual posed a continuing risk.
There was a clear failure in duty of care during employment (e.g., ignoring complaints and inadequate safeguarding).
Defining a Reasonable Timeframe for Post-Employment Liability
Vicarious liability should not extend indefinitely. Instead, a clear statutory timeframe should be introduced, such as:
1–2 years post-employment for liability to still apply unless exceptional circumstances exist.
A limitation period beyond which liability cannot be attached unless institutional negligence is proven.
Liability Should Not Extend to Private Conduct Unconnected to Employment
If the wrongful act occurs years after the individual has left the institution and has no clear connection to the former employment role, liability should not apply.
This ensures that institutions are not burdened with endless liability for the independent actions of former employees.
Stricter Requirements for “Akin to Employment” Cases
Courts should limit the expansion of “akin to employment” relationships by requiring:
A clear employment-like structure.
Active control over the individual at the time of the wrongful act.
A direct institutional benefit from the individual’s work.
This would prevent overreach into relationships where no true employer-employee control exists—such as family-based fostering arrangements, as seen in DJ v Barnsley (2024).
Justifications for Reform: Restoring Balance in Vicarious Liability
1. Preventing the Erosion of the Fault Principle
Vicarious liability is an exception to the general rule that liability is based on fault. Expanding liability indefinitely shifts the doctrine closer to strict liability, undermining its legal foundations. A temporal limitation restores the balance between fairness and accountability.
2. Preventing Overburdening of Employers, Public Bodies & Institutions
Expanding liability to long-terminated relationships increases legal and financial risks for institutions. Without reform, we risk deterring beneficial social services, such as:
Charitable organisations providing volunteer-based services.
Foster care systems, where local authorities may become reluctant to place children with carers.
Educational institutions, which could be held liable for the actions of former teachers decades later.
A defined timeframe for liability would reduce these burdens while still protecting victims.
3. Ensuring Liability Ends Where Reasonable Responsibility Ends
If an employer has done everything required of them—conducted safeguarding checks, monitored conduct, and properly managed risks—liability should not extend indefinitely. This reform would establish clear boundaries so that liability does not persist indefinitely for historical relationships.
4. Providing Legal Certainty
Current law lacks a clear cutoff, leaving courts to determine liability on a case-by-case basis, leading to inconsistent rulings (e.g., Barclays Bank [2020] vs. DJ v Barnsley [2024]). A defined statutory timeframe would enhance consistency and provide certainty to employers, insurers, and legal practitioners.
Addressing Counterarguments
1. What about cases where harm manifests years later?
The proposed time limitation applies only to vicarious liability—not personal negligence claims against the wrongdoer.
Victims would still have access to other legal remedies, such as claims against individual perpetrators or direct negligence suits against institutions.
2. Would this let employers escape liability too easily?
The reform does not absolve institutions of responsibility—it simply prevents liability from continuing indefinitely.
If an institution failed in its duty of care (e.g., ignoring complaints), liability would still apply.
Conclusion
The expansion of vicarious liability reflects a shifting approach to institutional responsibility, prioritising risk creation and benefit over direct employment relationships. While this evolution has enabled victims to obtain compensation from organizations best placed to pay, it has also raised serious concerns about fairness, legal certainty, and control.
The DJ v Barnsley ruling extends vicarious liability into family-based foster care, further stretching the doctrine beyond its original foundations. While this judgment demonstrates the courts' continued commitment to victim compensation, it also highlights the pressing need for legal restraint to prevent vicarious liability from becoming an unmanageable and indefinite burden on institutions.
This paper proposes a foreseeability-based temporal limitation, ensuring that once an employment or quasi-employment relationship has ended, liability should not extend indefinitely unless clear risk factors existed at the time. A defined statutory limitation period, coupled with stricter requirements for akin-to-employment cases, would restore fairness, prevent endless liability, and ensure institutions are not unfairly held accountable for unforeseeable acts committed long after their relationship with an individual has ended.
The challenge for the future is striking the right balance—ensuring that institutions remain accountable for risks they create while preventing liability from expanding indefinitely, undermining the principle of fault-based liability, and placing an undue burden on employers, charities, and public institutions.
Without reform, the trajectory of vicarious liability remains uncertain, leaving organisations vulnerable to an ever-expanding doctrine that threatens to blur the limits of institutional responsibility indefinitely. Courts and policymakers must now consider introducing legal safeguards to ensure fairness, predictability, and a proportionate allocation of liability in future cases.
Sources
Case Law
Limpus v London General Omnibus Co (1862)
Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215
Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, [2016] AC 677
Various Claimants v Catholic Child Welfare Society and others (“Christian Brothers”) [2012] UKSC 56, [2013] 2 AC 1
Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 669
Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355
Various Claimants v Barclays Bank plc [2020] UKSC 13, [2020] AC 973
BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15, [2023] 2 WLR 953
DJ v Barnsley Metropolitan Borough Council and another [2024] EWCA Civ 841
MXX v A Secondary School [2023] EWCA Civ 996
Books
Tony Weir, A Casebook on Tort (3rd edn, 1974)
Journal Articles & Legal Commentary
Lord Phillips, “Vicarious Liability in the Supreme Court” (2012)
Lord Reed, Judgment in Cox v Ministry of Justice (2016)
Lord Burrows JSC, Judgment in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses (2023)
Reports & Official Publications
House of Lords and Supreme Court Decisions on Vicarious Liability (2001–2024)
UK Supreme Court Summaries of Armes v Nottinghamshire County Council and DJ v Barnsley Metropolitan Borough Council (2024)