Vicarious Liability Flashcards
What does vicarious liability mean?
VL is a principle by which someone can be liable for the tort of another
- They are liable in addition to the main tortfeasor (jointly liable)
Most common where an employer is liable for the tort of their employee
- Employer’s liability looks at employer responsibility where an employee is injured at work
- Vicarious liability looks at employer liability where a member of the public is involved in a tort committed by the employee
What are the elements of vicarious liability?
1) Worker must be an employee
- Straightforward if they are in a contract of employment
- However, an independent contractor with a contract for services is distinct; they can work for multiple people and are self-employed on their own account
- Employer cannot be vicariously liable for the acts of independent contractors
2) Employee must commit a tort
- Tort must cause harm to C
- The primary liability comes from the employee and the secondary liability attaches to employer
- Employees owe duties to one another, so if a supervisor lets an employee hurt themselves, they commit a tort
3) Employee must commit the tort in the course of their employment
- More difficult conceptually
For vicarious liability to be established, the tort must occur ‘in the course of employment.’
There are various situations which will be classed as within the course of employment. In overview only, what are these?
- Wrongful acts that are authorised
- Wrongful and unauthorised modes of carrying out an authorised act
- Acts that are expressly prohibited by the employer, but which further the employer’s business
- Intentional torts where there is a close connection between the tort and job
Give an example of when a wrongful act that is authorised will fall within the course of employment
If employer says to drive faster than speed limit and an accident occurs, this will fall within course of employment
Give an example of when a wrongful and unauthorised modes of carrying out an authorised act will fall within the course of employment
Authorised act may be to deliver petrol to petrol station, but the wrongful and authorised mode would be to smoke whilst doing so – this is within course of employment
Give some further details and examples on when acts that are expressly prohibited by the employer, but which further the employer’s business, will fall within the course of employment
If the employer expressly prohibited smoking at petrol pump, this may still be in the course of employment if act furthers employer’s business
Giving a lift (where prohibited) to someone who helps the employee deliver goods – this is still within course of employment
- This is because it furthers the employer’s business
Giving a lift during work time but not to assist with work may fall outside course of employment
Purpose of acting in prohibition is key
Give some further details on when intentional torts where there is a close connection between the tort and job will fall within the course of employment
Intentional torts may include fraud, trespass to the person
Close connection may be where the tort couldn’t be done unless they were in that employment situation
Sufficient connection between their employment position and their wrongful conduct to make it fair and just to impose VL
When will an employee’s act not fall within the course of employment?
If an employee goes off on a ‘frolic of their own,’ their actions won’t be within course of employment
- Employee visiting a relative in hospital while making deliveries
Employee driving off route to get lunch is incidental to employment so OK
How does the concept of indemnities relate to vicarious liability?
Employer, if found VL, can claim an indemnity (full loss) from employee who actually committed the tort
- Employer’s liability insurers usually won’t pursue these claims unless there is evidence of collusion or wilful misconduct on employee’s part
