Vicarious Liability Flashcards
Key point
The employer is liable in addition to its employee - they are jointly liable.
3 points which need to be satisfied
1) The worker must be an employee or in a relationship akin to employment
2) The employee must have committed a tort
3) The employee’s tort must have been committed in the course of employment
Worker must be an employee or in a relationship akin to employment
Difference between an employee and an independant contractor is that an employee performs a service for just one purpose - their employer. An independent contractor provides services to several people. Employee receives a salary/wage.
Employee must have committed a tort
This is often negligence but the employee could have committed any tort such as battery or defamation
Employee must act ‘in the course of employment’ - Classic example
Employer will be vicariously liable for:
- Wrongful acts which it has authorised
- Wrongful and unauthorised modes of carrying out an authorised act
Poland v Parr - court felt that as the man was protecting his employer’s property, he had implied permission to push away the thief. The employer therefore authorised the tort the employee committed
Employee must act ‘in the course of employment’ - Acts expressly prohibited by employer - General rule
General rule - acts done in express contravention of a prohibition from an employer would fall outside the employees course of employment
Employee must act ‘in the course of employment’ - Acts expressly prohibited by employer - Exceptions
If the act is done for his employer’s business it is usually done in the course of his employment despite the act being prohibited. Prohibited act furthered employer’s business. Needs to relate to the manner/mode of doing the job
Employee must act ‘in the course of employment’ - Intentional torts - General rule
Often also criminal acts. Unlikely that an employer would be vicariously liable for such acts. However there are exceptions
Employee must act ‘in the course of employment’ - Intentional torts - Exceptions
An employer can be vicariously liable for an intentional wrongful act committed purely for an employee’s benefit where there is a sufficient connection between the work he had been employed to do and the acts in question.
The court must ask what was the nature of his job and whether there was a sufficient connection between the position in which he was employed
Employee must act ‘in the course of employment’ - Frolic cases
Mainly concerns employees whose work involves driving and who commit a tort deviating from the route. 1) The extent to which the employee has deviated from his authorised route. Is it a major departure or just a minor detour? 2) The purpose of the departure from the authorised route. If he was still going about his employer’s business at the time of the accident. The greater the degree of departure from one or both of these the more likely it is that an employee will be on ‘a frolic of his own’
Employer’s Indemnity
Where an employer has paid out compensation to someone having been found vicariously liable the employer has a right at common law to claim an indemnity (its full loss) from the employee who actually committed the tort
