Vicarious Liability

Question 1

What are the three essential elements required for vicarious liability?

Answer 1

1. Worker must be an employee
2. Employee must have committed a tort
3. Employee’s tort must have been committed in the course of his employment

Question 2

What are the 5 criteria from Various Claimants v Catholic Child Welfare Society and Others that determine whether there is a relationship of employment or “akin to employment”, such that it may be fair, just and reasonable to impose vicarious liability of an employer?

Answer 2

1. Employer is more likely to have the means to compensate the victim / can be expected to have insured against that liability
2. Tort committed as a result of activity being taken by the employee on behalf of the employer
3. Employee’s activity is likely to be part of the business activity of the employer
4. Employer, by employing employee to carry on the activity will have created the risk of the tort being committed by the employee
5. Employee will have been under the control of the employer

Question 3

Can a wrongful act be constituted as being “in the course of employment”?

Answer 3

Yes, if authorised by the employer

Question 4

Can a wrongful and unauthorised act be constituted as being “in the course of employment”?

Answer 4

Yes, if it is just an unauthorised way of carrying out an authorised act

Question 5

In what event could an act which has been expressly prohibited by the employer be deemed to be within the course of employment still?

Answer 5

If the act is done to further the employer’s business

Consider whether the prohibition relates to the manner / mode of doing the job, or whether it is out of the scope of the job

Question 6

If am employer / their insurance has paid out compensation due to vicarious liability, what right do they have at common law against employee who committed the tort?

Answer 6

Right to claim an indemnity