Vicarious Liability Flashcards
What is vicarious liability
A principle under which a person is liable for the torts
committed by another.
3 requirements for vicarious liability
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 his employment
3 requirements for vicarious liability - worker must be an employee or in a relationship akin to employment
Not an independent contractor - providing services to several people.
SC 5 criteria to determine whether there is
a relationship of employment or ‘akin to employment’:
(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.
3 requirements for vicarious liability - employee must act ‘in the course of employment’
Defintion:
* wrongful acts which it has authorised;
* wrongful and unauthorised modes of carrying out an authorised act.
Unlikely an employer would be vicariously liable for intentional torts unless close connection between work employed to do and the acts in question.
Employers indemnity
Where an employer (or usually the employer’s insurers) has paid out compensation to
someone, having been found vicariously liable, the employer has a right at
common law to claim an indemnity (ie its full loss) from the employee who actually committed
the tort.
The employer and employee are jointly liable.
However, employers’ liability insurers have entered into an informal agreement not to pursue
such claims for an indemnity unless there is evidence of collusion or wilful misconduct on the
part of an employee.
