evaluation of vicarous Flashcards
point 1 not fair
The extent to which vicarious liability is fair on employers is debatable. In all cases the courts will try to balance competing interests, and vicarious liability is seen as a just and practical way to compensate a claimant who has suffered a loss or injury, such as the death of a family member (as in Hilton) or sexual abuse (as in Christian Brothers), which promotes the interests of the claimant.
dp 1
However, it can be argued that this is a contradiction of fault based liability as the employer themselves have not committed a tort, and so are not at fault. It is entirely possible that the employer has done all that they were able to do in order to prevent loss or injury to others, such as in Rose v Plenty when employees were expressly told not to use children to help with their deliveries, and so this does not promote the interests of the defendant.
wdp 1
Although this is arguably unfair on the employer, it is a practical remedy as employers are best placed to meet the claim, given that they will have employers’ liability insurance, and that they can recover the damages from the tortfeasor as a result of the Civil Liability (Contribution) Act 1978. This then balances the interests and reflects the seriousness of a claimant suffering harm.
p 2 fair that the employer should be held accountable for the actions or omissions of their employees,
However, it can be argued that it is only fair that the employer should be held accountable for the actions or omissions of their employees, given that they ultimately benefit from the work of their employees. Vicarious liability also benefits the employer directly as it encourages high standards of care, and is a further incentive to train employees to a high standard.
dp 2
However, the employer cannot always have complete control over their employees, especially with the rise of working from home and a larger population of delivery drivers/ riders who are not under the supervision of a manager at all times.
wdp 2
This can be demonstrated with the case of Century Insurance v NI Road Transport where a delivery driver negligently threw a match near explosive petrol. This presents a strong argument that vicarious liability is not fair, as under the current law employers can be liable for the careless acts of their employees, even when they are not directly under their control or supervision.
p3 ‘relationship akin to employment’ presents further disadvantages for the employer
Furthermore, the development of ‘relationship akin to employment’ presents further disadvantages for the employer. This has been developed in order to achieve justice for claimants who suffer loss or injury as a result of a person who is not in that traditional employer/employee relationship,
dp
such as the sexual abuse suffered by the claimants in the Christian Brothers Case. Arguably though this development has stretched the law to hold employers liable when there is not technically employment, which can be considered very unfair for the employer.
wdp
However, this can be justified when considering the interests of the claimant who has suffered the loss or injury personally, compared with the financial loss of the employer who has insurance to meet the claim.
