6. Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

Liability of one person for the torts committed by another

Question 2

What are the two questions to ask when considering vicarious liability of an employer, when a tort is committed by someone else?

Answer 2

1. Was the person an employee?
2. Acting in the course of employment?

Question 3

In determining whether someone is an employee, what are five factors the economic reality test will consider over a purely literal interpretation of the label given to the role?

Answer 3

1. Person carrying out the work personally
2. Does employer have control over how the work is done
3. Which party owns the equipment
4. Is there a uniform?
5. Who is taking the financial risk?

Question 4

In determining whether a tort was committed by an employee in the course of their employment, what question will the court ask?

Answer 4

Was the tort so closely connected with the task that the employee was employed to do that it would be fair and just to hold the employer liable?

Question 5

Will negligence of an employee in carrying out their work take them outside the course of employment?

Answer 5

No

Question 6

Does the fact the tort committed by the employee was also a criminal act negate vicarious liability?

Answer 6

No

Question 7

What are the two ways an employer’s prohibition can limit an employee?

Answer 7

1. Limit the scope of employment, e.g. not allowed to drive company vans
2. Limit the manner of employment, e.g. must drive company vans within the speed limit

Question 8

Breach of what type of prohibition will take an employee outside the course of employment?

Answer 8

Breach of a prohibition limiting the scope of employment

Question 9

What determines whether a deviation from employment will take an employee outside the course of employment?

Answer 9

The degree of the deviation

Question 10

What must be true of a deviation before it will be determined to be outside the course of employment?

Answer 10

Whether the degree of the deviation could be considered to be a separate independent journey for the employee’s own purposes

Question 11

In addition to those deemed employees, who else might a person be vicariously liable for the tort of?

Answer 11

Any person with whom they have a relationship akin to employer/employee

Question 12

What three factors will the court consider in determining a relationship is akin to employer-employee, and attach the same liability as if it was?

Answer 12

1. Tort committed as a result of activity undertaken on behalf of the vicarious party
2. Tortfeaser’s activity is integral part of vicarious party’s business, and
3. Vicarious party created the risk by assigning the activity to the tortfeasor

Question 13

In what two situations might an employer be personally, as opposed to vicariously, liable for a tort committed by an independent contractor?

Answer 13

1. Employer in breach of their own non-delegable duty of care, or
2. Employer is in breach of their own duty to take reasonable care in selecting a contractor

Question 14

What is an employer’s non-delegable duty of care regarding an independent contractor?

Answer 14

If an employer engages an independent contractor to carry out activities within the scope of the employer’s duty, the employer’s own duty is breached if the contractor does not take reasonable care