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Vicarious liability 267

Liability for prohibited acts

An employer who absolutely prohibits an employee from performing certain acts will gen-
erally not be liable if the employee ignores the prohibition. However, an employer who only
prohibits the manner in which an authorised act should be performed will remain liable.
The following two cases illustrate this distinction.

Defences

Consent of the victim and contributory negligence (both considered earlier in this chapter)
are both available as defences to an employer sued on the grounds of vicarious liability.
The Civil Liability (Contribution) Act 1978 allows an employer who has been found liable
to get a contribution from the employee who caused the accident. However, employers
rarely use the Act because generally they will carry insurance.

Liability for independent contractors

In general, a person who uses the services of an independent contractor will not be liable
for any torts committed by the contractor. However, liability can arise if the ‘employer’
authorises the contractor to commit the tort or if the tort is one which can be committed
without negligence. We saw an example of such liability earlier in this chapter in the case
of Rylands vFletcher (1866). As regards torts where negligence does need to be proved, the

On the way back, the driver crashed the firm’s van and the foreman was killed. The

employer did not mind the men using the firm’s van to fetch refreshments.

HeldThe employer was not liable. The men were acting entirely for their own benefit and

were therefore ‘on a frolic of their own’.

Iqbal vLondon Transport Executive (1973)

A bus conductor had been expressly prohibited from driving buses. The bus on which he

worked was parked in such a way that it was causing an obstruction. The conductor was

ordered to fetch an engineer to move the bus. He attempted to move the bus himself and

caused an accident.

HeldThe employer was not liable. The conductor was acting outside the course of his

employment because the thing he had been expressly forbidden to do (drive buses) was

never part of his job.

Limpus vLondon General Omnibus Co Ltd (1862)

The defendants’ bus driver obstructed the claimant’s bus in order to prevent it passing. This

caused injury to one of the claimant’s horses and damage to the claimant’s bus. The defend-

ants had specifically ordered their drivers not to race with or obstruct other firms’ buses.

HeldThe defendants were liable. The driver had been in the course of his employment

when he caused the accident. He had express authorisation to drive buses. The prohibition

was only as to the manner of doing this.