Vicarious Liability in Trinidad and Tobago: When Employers Are Liable for Their Employees
In Trinidad and Tobago, vicarious liability is the legal principle by which an employer is held liable in tort for a wrong committed by an employee who was acting within the course of their employment — even where the employer was not personally at fault. The governing framework is the common law as applied by the courts of Trinidad and Tobago and, on final appeal, the Judicial Committee of the Privy Council; State defendants are additionally governed by the State Liability and Proceedings Act, Chapter 8:02. This principle matters because it ensures that victims of workplace-related torts are not left without a remedy simply because the individual wrongdoer lacks the means to satisfy a judgment.
The policy rationale is well established: the employer creates the risk by deploying the employee, profits from the employee's work, and is better positioned than either the employee or the claimant to bear and insure against losses arising from that activity. Placing liability on the employer also provides a powerful incentive to select, train, and supervise employees carefully.
The Three Requirements for Vicarious Liability
For a vicarious liability claim to succeed, three elements must be satisfied:
(a) The relationship between the defendant and the tortfeasor must be one of employer and employee — not that of an employer and an independent contractor.
(b) The tortfeasor must have committed a recognised tort — whether negligence, trespass, assault, or any other civil wrong for which the law provides a remedy.
(c) The tort must have been committed in the course of the employee's employment — that is, while the employee was engaged in carrying out their duties on behalf of the employer, or doing something so closely connected with those duties that it is fair to treat it as part of them.
Each requirement is a distinct hurdle. If any one of them fails, the employer is not vicariously liable, although they may still be personally liable for their own negligence in hiring, training, or supervising the employee.
Employee vs. Independent Contractor: The Threshold Question
The first and most fundamental question is whether the tortfeasor was an employee or an independent contractor, because an employer is generally not vicariously liable for the torts of an independent contractor.
The courts have developed three overlapping tests to resolve this question.
The Control Test
Under the traditional control test, the court asks whether the employer controls not only what work is done but also how it is done. A true employee works under the employer's direction on the manner of performance. An independent contractor, by contrast, is engaged to produce a result and is free to decide the method of achieving it.
The Multiple Factor Test
In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, the English court laid down the multiple factor test, which has been widely adopted in the Caribbean. Under this approach, the court weighs a range of indicators including: whether there is personal service (the worker must perform the task themselves); whether there is mutuality of obligation (the employer must offer work and the worker must accept it); the degree of control; financial integration into the employer's business; whether the worker supplies their own tools and equipment; the method of payment; and the tax and national insurance arrangements. No single factor is determinative; the court looks at the overall picture.
Economic Reality
Courts will also examine the economic reality of the relationship. If the worker bears the financial risk of loss, prices jobs independently, and profits from their own efficiency, that points toward independent contractor status even where a contract describes the relationship as employment.
Non-Delegable Duties: The Important Exception
Even where a worker is an independent contractor, an employer may still be liable where the duty owed to the claimant is non-delegable — that is, a personal duty that cannot be discharged merely by appointing a competent contractor to perform it. The categories of non-delegable duty include hospitals in their obligation to provide medical care to patients, schools in their duty to safeguard pupils, and employers in their duty to provide employees with a safe system of work. Where a non-delegable duty exists, the employer remains liable even though the work was carried out by an independent contractor rather than by an employee.
Course of Employment
An employer is vicariously liable only where the employee's tort was committed in the course of their employment — that is, while doing an authorised act, or an authorised act performed in an unauthorised way.
The Salmond Test
The classical formulation, known as the Salmond test, asks whether the act was either (i) an act expressly or impliedly authorised by the employer, or (ii) an act wrongfully done in a way that is a mode — however improper — of performing an authorised act. The Salmond test draws a practical distinction between an employee who does their job badly or dishonestly (still in the course of employment) and an employee who abandons their job entirely to pursue their own purposes (outside the course of employment).
Frolic of His Own
Where an employee departs substantially from the scope of their duties to pursue a purely personal purpose, they are said to be on a "frolic of their own" and the employer is not liable for any tort committed during that departure.
The leading Trinidad and Tobago authority on frolic is Furness Rentals Ltd v Suraj and Essentia Ltd (Court of Appeal of Trinidad and Tobago). In that case, an employee who had use of a company rental vehicle drove it outside the authorised route and purpose — specifically to visit his girlfriend — when the accident giving rise to the claim occurred. The Court of Appeal held that the employee's use of the vehicle at that time was a frolic of his own and that Furness Rentals was not vicariously liable. The case illustrates that the mere fact that a company vehicle is involved does not automatically make the employer liable; the court will examine whether the employee was actually serving their employer's business at the time.
A court considering frolic will ask: Was the employee travelling between authorised points? Had the employee completely abandoned the employer's business? Was the deviation so great in time and distance that it constituted a new journey entirely? Minor deviations — stopping briefly for a personal errand while on an authorised journey — have not always been held to break the course of employment, but substantial departures will.
The Close Connection Test
Where the nature of the employment gave the employee the opportunity or means to commit the tort, and there is a sufficiently close connection between the employment and the wrongful act, the employer may be vicariously liable even for an intentional or criminal act.
This principle was authoritatively stated by the House of Lords in Lister v Hesley Hall Ltd [2001] UKHL 22, a case involving sexual abuse of children by a warden employed by a residential school. The House of Lords held that the traditional Salmond test was insufficient in cases of deliberate wrongdoing and that the correct question was whether the employee's tort was so closely connected with their employment that it would be fair and just to hold the employer liable. The warden's employment had placed him in a position of authority over the boys, giving him both the opportunity and the setting for the abuse; that close connection made it right to hold the employer liable.
The close connection test has been applied beyond the context of sexual abuse to intentional assaults, fraudulent misrepresentations, and other deliberate wrongs committed by employees who were placed in a position of trust or authority by virtue of their employment.
Application in Trinidad and Tobago
The close connection test has been applied in the local courts. In Sookhai v Attorney General of Trinidad and Tobago, the State was held vicariously liable for an assault committed by a police officer against the claimant. The officer's employment gave him the authority, equipment, and circumstances in which the assault occurred; the close connection between the exercise of official police powers and the wrong was sufficient to engage State liability.
The governing Privy Council authority for Trinidad and Tobago is Stuart v Attorney General of Trinidad and Tobago [2022] UKPC 53. The Board held that malice on the part of a charging officer was sufficient to establish vicarious liability of the State for malicious prosecution. The Privy Council confirmed that the State is bound by the close connection test and that the employment relationship — investing the officer with the authority to initiate criminal proceedings — provided precisely the close connection required. Stuart v AG [2022] UKPC 53 is now the leading case on State vicarious liability in this jurisdiction and is binding on all courts in Trinidad and Tobago.
Loaned Servants
Where an employer (the general employer) lends an employee to another business (the temporary employer) for a period or project, a question arises as to which employer is vicariously liable for a tort committed by the employee during the loan.
The starting position is that the general employer remains liable, but liability may shift to the temporary employer if the temporary employer has assumed sufficient control over the manner in which the employee performed the work.
The Trinidad and Tobago Court of Appeal considered this issue in Texaco Trinidad Inc v Halliburton Tucker Ltd (1975). The court applied the control test to determine which employer — Texaco or the contractor — was in effective control of the loaned worker at the time of the tort. The case illustrates that the outcome turns on the specific facts: who gave the day-to-day instructions, whose equipment was being used, and who had the authority to direct how the work was carried out.
In practice, disputes about loaned servants frequently arise in the oil and gas and construction sectors in Trinidad and Tobago, where labour is commonly placed through contractors or labour-supply agencies. Businesses in those industries are well advised to document clearly which entity bears control over placed workers.
State and Crown Vicarious Liability
Under the State Liability and Proceedings Act, Chapter 8:02, the State of Trinidad and Tobago is subject to tort liability in the same manner as a private individual, including vicarious liability for the acts of its servants and agents.
Before Chapter 8:02, the common law rule that the Crown could not be sued in its own courts provided significant protection to the State. That immunity has been substantially removed by the Act. The State may now be sued in tort for the wrongful acts of police officers, public servants, soldiers, prison officers, and other State employees where those acts are committed in the course of their official duties.
The practical consequences are significant. Claims for assault, false imprisonment, malicious prosecution, and negligence by police officers are routinely brought against the Attorney General of Trinidad and Tobago as the nominal defendant representing the State. The close connection test from Lister v Hesley Hall [2001] as applied in Stuart v AG [2022] UKPC 53 governs whether the State can be held vicariously liable for the intentional torts of its officers.
It is important to note that the State's liability is not unlimited. The act must still be committed in the course of employment or within the close connection required by the test. An off-duty police officer committing a tort in circumstances wholly unconnected to their official duties will not automatically make the State liable, though the facts of each case must be carefully examined.
Non-Delegable Duties
A non-delegable duty is a personal obligation that rests on the employer or institution itself and cannot be discharged by entrusting the performance to someone else — whether an employee or an independent contractor.
The most established categories in English and Caribbean law are:
- Hospitals: A hospital owes a non-delegable duty of care to its patients to ensure that medical treatment is administered with reasonable care. Where a hospital delegates a procedure to a visiting surgeon or an independent contractor, the hospital cannot escape liability by pointing to the contractor's independent status.
- Schools: A school owes a non-delegable duty to ensure reasonable supervision and care for pupils during school hours and school activities.
- Employers: An employer owes a non-delegable duty to provide a safe system of work, safe equipment, and a safe workplace for their employees. Delegating a safety task to a competent contractor does not remove the employer's personal liability if that obligation is not met.
The significance of non-delegable duties in vicarious liability is that they operate as an exception to the independent contractor rule. Even where there is no employment relationship in the strict sense, the employer or institution may be directly (not vicariously) liable because the duty was theirs to fulfil personally.
Defences and Limitations
An employer has several recognised defences to a claim of vicarious liability, though none of them is straightforwardly absolute.
Frolic of His Own
If the employee was, at the time of the tort, acting entirely for their own purposes with no connection to their employment duties, the employer is not liable. As demonstrated in Furness Rentals, the court will look carefully at what the employee was actually doing, where they were, and whether any part of the employer's business was being served.
Express Prohibition
An employer may argue that they expressly prohibited the act that caused the harm. However, a prohibition does not automatically remove vicarious liability. The courts have drawn a distinction between a prohibition that limits the scope of the job (removing liability) and a prohibition that limits the mode of performing a job that the employee was still authorised to do (not removing liability). An employer who tells a driver "do not exceed the speed limit" has not thereby removed liability for accidents caused by the driver speeding — the driver was still authorised to drive; the prohibition went only to the manner of driving.
Independent Contractor
Where the tortfeasor was genuinely an independent contractor and no non-delegable duty applies, the employer is not vicariously liable. The practical difficulty is that the employer bears the burden of establishing the independent contractor relationship on the facts.
What the Law Says: Key Statutes and Cases
Statute
| Statute | Relevance |
|---|---|
| State Liability and Proceedings Act, Chapter 8:02 | Subjects the State to tort liability as if it were a private employer; enables vicarious liability claims against the Attorney General for acts of State servants |
Key Cases
| Case | Court | Point |
|---|---|---|
| Furness Rentals Ltd v Suraj and Essentia Ltd | T&T Court of Appeal | Employee using company vehicle to visit girlfriend was on a frolic; employer not liable |
| Sookhai v Attorney General of T&T | T&T courts | State vicariously liable for police officer's assault; close connection test applied |
| Stuart v Attorney General of T&T [2022] UKPC 53 | Privy Council | State vicariously liable for malicious prosecution by charging officer; leading authority for T&T |
| Lister v Hesley Hall Ltd [2001] UKHL 22 | House of Lords | Close connection test stated; employer liable for employee's intentional/criminal act where employment provided the opportunity and setting |
| Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 | English QBD | Multiple factor test for employee vs. independent contractor |
| Texaco Trinidad Inc v Halliburton Tucker Ltd (1975) | T&T Court of Appeal | Control test applied to loaned servant to determine which employer liable |
Frequently Asked Questions
Can I sue my employer for what an employee did to me?
Yes, if the employee's wrongful act was committed in the course of their employment, or is sufficiently closely connected with their employment, you can sue the employer directly. You do not need to show that the employer did anything personally wrong. You would name the employer as a defendant, and the employer becomes liable for the employee's tort by operation of law. In practice, suing the employer is often the more effective remedy because individual employees may lack the financial resources to meet a judgment, whereas employers typically carry insurance or have greater assets.
What is a "frolic of his own"?
A frolic of his own is a common law term for a situation where an employee departs substantially from their job duties to pursue a purely personal purpose, such that their actions can no longer be said to be in the course of their employment. When an employee is on a frolic, the employer is not vicariously liable for any tort committed during that departure. In Furness Rentals, the employee's decision to use the company vehicle to visit his girlfriend — outside the authorised route and purpose — was held to be a frolic. Not every minor personal detour will amount to a frolic; courts look at the extent and nature of the departure from duty.
When is a contractor treated as an employee for vicarious liability purposes?
A contractor may be treated as an employee where the relationship has the substance of employment despite the label. Courts apply the control test, the multiple factor test from Ready Mixed Concrete [1968], and an assessment of economic reality to determine the true nature of the relationship. Factors pointing toward employment include: the engager controls how work is done, not just the outcome; there is personal service with no right of substitution; the worker is economically dependent on a single engager; and payment is by regular wage rather than per project. Additionally, even a true independent contractor will not insulate an employer from liability where the duty owed is non-delegable.
Is the State liable for police misconduct in Trinidad and Tobago?
Yes. Under the State Liability and Proceedings Act, Chapter 8:02, the State is liable in tort in the same manner as a private employer, and this includes vicarious liability for the acts of police officers committed in the course of their duties. Claims for false imprisonment, assault, malicious prosecution, and other torts committed by police officers are brought against the Attorney General of Trinidad and Tobago. The Privy Council confirmed in Stuart v AG [2022] UKPC 53 that the close connection test applies to State liability and that the State cannot escape vicarious liability for malicious prosecution simply because the officer acted with personal malice.
What is the close connection test?
The close connection test asks whether the employee's employment placed them in a position — by virtue of the role, authority, or opportunity it provided — that is so closely connected with the wrongful act that it would be fair and just to hold the employer liable. It was stated by the House of Lords in Lister v Hesley Hall Ltd [2001] UKHL 22 and applies particularly (though not exclusively) where an employee has committed a deliberate or criminal act. The test focuses not on whether the employer authorised the specific wrong, but on whether the employment gave the employee the particular circumstances, authority, or access that made the wrong possible. In T&T, it has been applied to police officer assaults and malicious prosecution by State officers.
What are non-delegable duties?
Non-delegable duties are personal obligations that an employer or institution owes directly to a claimant and cannot discharge simply by appointing a competent contractor to perform the relevant task. Where a non-delegable duty exists, the employer remains liable for any negligence in the performance of that duty even if the actual work was carried out by an independent contractor. The established categories include the duty of a hospital to its patients, the duty of a school to its pupils, and the duty of an employer to provide a safe system of work for its employees. In these situations, engaging a specialist or contractor to perform the task does not shift liability away from the institution.
What if the employer told the employee not to do it?
An express prohibition by the employer does not automatically remove vicarious liability. The law distinguishes between a prohibition that narrows the scope of the job — removing the act from the course of employment altogether — and a prohibition that merely restricts the manner in which an authorised job is performed. Where the employee was still carrying out the employer's business, just doing it in a prohibited way, the prohibition will not provide a defence. For example, instructing a delivery driver not to speed does not remove the employer's vicarious liability if the driver causes an accident while speeding: the driver was authorised to drive; only the manner was prohibited. However, if an employer prohibits an employee from performing a category of activity entirely outside the employee's role, and the employee does it anyway, that may take the act outside the course of employment.
Conclusion
Vicarious liability is one of the most practically significant areas of tort law for businesses, organisations, and individuals in Trinidad and Tobago. It means that the employer — not just the individual wrongdoer — is the appropriate defendant where the tort arose out of employment. The course of employment test, the close connection principle from Lister v Hesley Hall [2001] UKHL 22, the frolic doctrine illustrated by Furness Rentals, and the State's liability under Chapter 8:02 as confirmed in Stuart v AG [2022] UKPC 53 together define the landscape. Employers should manage this exposure through careful hiring, clear authorisation policies, proper training, and appropriate insurance. Anyone who has suffered a tort at the hands of an employee acting in the course of their work should seek legal advice promptly, as claims against employers can provide access to meaningful compensation that might not otherwise be available.
Written by Martin George, Attorney-at-Law. Martin George is the founder and principal attorney of Martin George & Company, with more than 35 years of active legal practice in the courts of Trinidad and Tobago. He is a former Commissioner on the Law Reform Commission of Trinidad and Tobago and a member of the Prime Minister's Constitutional Committee for Internal Self-Government for Tobago. This article is published for general information and public legal education. It does not constitute legal advice. For advice on your specific situation, contact Martin George & Company.
Last reviewed: April 2026