Vicarious Liability Flashcards
What is the principle of vicarious liability?
It is not a requirement that the employer has committed a tort themselves. Their liability is a form of secondary liability in that it derives from a tort committed by their employee. The employer is liable in addition to (not instead of) its employee. They are jointly liable.
What are the three essential elements of vicarious liability?
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.
Can employers be held vicariously liable for the acts of independent contractors?
Employers cannot be held to be
vicariously liable for the acts of independent contractors.
What are the principal differences between an employee and an independent contractor?
An employee performs a service for just one person (the employer). An independent
contractor, on the other hand, provides services to several people.
An independent contractor is self-employed and therefore is in business on their own account. An employee, on the other hand, receives a wage, but it is the employer who has the business interest.
What are the five criteria to determine whether there is a relationship of employment or ‘akin to employment.’
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;
The tort will have been committed as a result of activity being taken by the employee on
behalf of the employer;
The employee’s activity is likely to be part of the business activity of the employer;
The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee;
The employee will, to a greater or lesser degree, have been under the control of the employer.
What are the definitions of acts committed in the course of an employee’s employment?
Wrongful acts which it has authorised;
Wrongful and unauthorised modes of carrying out an authorised act.
Can employers be vicariously liable for acts that they expressly prohibit?
In considering whether a prohibited act is within
the course of the employment, ‘it depends very much on the purpose for which it is done.
If it is done for his employer’s business, it is usually done in the course of his employment,
even though it is a prohibited act’.
Can employers be vicariously liable for intentional torts committed by their employees?
An employer can be vicariously liable for an intentional
wrongful act committed purely for an employee’s own purposes, without any benefit to
the employer, where there is a sufficiently close connection between the work he had been
employed to do and the acts in question.
What happens if an employee is acting outside of their course of employment when they commit a tort?
It will be a question of degree in each case whether an employee’s departure from their authorised route is sufficient to put them ‘on a frolic of their own’ and
consequently outside the course of their employment.
This involves considering two issues geographical divergence and departure from the task set. 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 their own’.
What is employer’s 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 committed the tort.
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.
