9. Vicarious Liability

Question 1

What is vicarious liability?

Answer 1

Where an employer is held liable to a third party for the tort committed by their employee.

Question 2

What form of liability is vicarious liability?

Answer 2

a form of joint liability

Question 3

How does vicarious liability impose liability in terms of fault?

Answer 3

imposes liability without the need to prove fault on the part of the employer

Question 4

What is the three stage test to see whether vicarious liability should apply?

Answer 4

1. Was the tortfeasor an employee of the defendant?
2. Did the employee commit a tort?
3. Was the tort committed in the course of employment?

Question 5

What needs to be distinguished to know if the tortfeasor was an employee of the defendant?

Answer 5

must distinguish between employees and independent contracts

Question 6

What needs to be established to know if the employee commit a tort?

Answer 6

must establish a tort such as negligence.

Question 7

When can vicarious liability not be imposed on an employer?

Answer 7

if a tort has not taken place or there is no employment relationship

Question 8

When are employers not liable for certain acts even if it is done in work time and what are they called?

Answer 8

When an employees tort has nothing to do with their work - known as frolic cases.

Question 9

What are examples of a tort committed in the course of employment?

Answer 9

• wrongful act authorised by the employer
• an authorised act committed in a wrongful way
• an act expressly prohibited by the employer but which furthered the employer’s business
• an intentional tort with a close connection to the work

Question 10

What are the standards that an employer will be held vicariously liable?

Answer 10

if it is fair and just to do so

Question 11

What are the three essential elements for vicarious liability to exist on the part of an employer?

Answer 11

• The worker must be an employee (or in a relationship akin to employment).
• The employee must have committed a tort.
• The employee’s tort must have been committed in the course of his employment.

Question 12

In cases of vicarious liability, what right does an employer have regarding compensation paid?

Answer 12

The employer can seek indemnity from the responsible employee for compensation paid.

Question 13

Under what conditions do employers’ liability insurers typically pursue indemnity claims from employees?

Answer 13

Employers’ liability insurers generally refrain from pursuing indemnity claims unless there is evidence of collusion or willful misconduct by the employee.