9. Vicarious Liability

Question 1

If an employer is vicariously liable for the acts of their employee, who can the claimant sue?

Answer 1

Either or both (as jointly liable)

Question 2

Three essential elements to establish in VI:

Answer 2

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

Question 3

Can employers be held liable for the actions of independent contractors they employ?

Answer 3

No

Question 4

Five factors present when there is a relationship ‘akin to employment’ (so that it is fair to impose vicarious liability on an employer)

Answer 4

(i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
(ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) The employee’s activity is likely to be part of the business activity of the employer;
(iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee;
(v) The employee will, to a greater or lesser degree, have been under the control of the employer.

Question 5

Acts committed during an employee’s employment which might generate liability for their employer

Answer 5

1. wrongful acts the employer has authorised
2. wrongful and unauthorised modes of carrying out an authorised act
3. Acts which are unauthorised but further the employer’s business
4. Intentional torts (if lister principle applies)

Question 6

When will intentional torts committed by employees give rise to vicarious liability for their employer?

Answer 6

If the LISER principle applies:
1. Must be a sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just that the employer is held liable

Question 7

If an employer pays out compensation to a victim (after they are proven vicariously liable) do they have any right to ‘go after’ the employee (the other liable party_

Answer 7

Yes, the employer has the right to pursue the employee for an indemnity
- BUT insurers’ of employers have an informal agreement that they will not likely do this unless there is evidence of collusion or wilful misconduct of the employee