Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

Mechanism by which people can be liable for the torts of other people

(eg. employer liable for tort committed by employee)

ie. claimant can bring claim against employee & also against employer under vic lib

Question 2

What are the three requirements of vicarious liability?

Answer 2

1. A tort has been committed
2. By an employee
3. In the course of their employment

Question 3

How can you tell if the worker is an employee?

Answer 3

contract of employment or relationship akin to employment

is it fair & just for employer to be held liable

Question 4

Can employers be held vicariously liable for the actions of their independent contractors?

Answer 4

No (not employees)

Question 5

Where there is a choice of employer, which one will be vicariously liable?

Answer 5

Depends on the facts

Rebuttable presumption that original employer will be vicariously liable - but consider fairness

Question 6

How can you tell if the committed by the employee was done during the course of their employment?

Answer 6

Is there a close connection between the work & the tort?

ie. employee wouldn’t have been able to commit tort unless were carrying out job that they were doing

Question 7

Will a wrongful act (eg. driving over the speed limit) authorised by the employer be done in the course of employment?

Answer 7

Yes

Question 8

Will a wrongful & unauthorised mode of carrying out an authorised act (eg. smoking whilst delivering petrol) be in the course of employment?

Answer 8

Yes

Question 9

Will an act expressly prohibited by an employer be in the course of employment?

Answer 9

Yes, if the act furthers the employer’s business

eg. 2 cases of driving giving lift where express prohibition against giving lift - in one, giving lift had no benefit to employer; in other, person being given lift was also helping deliver the milk in the vehicle, so within course of employment