Vicarious Liability Flashcards
Requirements for Vicarious Liability
This is not a tort but a principle under which a person is liable for the torts committed by another.
3 essential requirements:
* 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.
Differences between employee and independent contractor:
The principal differences between an employee and an independent contractor are, first,
that an employee performs a service for just one person (the employer). An independent
contractor, on the other hand, provides services to several people. Secondly, 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.
Criteria taken but the court to determine if relationship of 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.
Cont’d
Empyoyee must act in course of empyment
The classic definition of acts committed in the course of an employee’s employment (which the
employer may be vicariously liable for) are:
* wrongful acts which it has authorised;
* wrongful and unauthorised modes of carrying out an authorised act.
NB: Things done to protect employer’s property likely to be seen as falling within course of employment. The retaliation
was a personal act not authorised or connected with his employment.
Acts prohibited by the employer
- If act done to further the success of the business then the employer would be liable (Lord Denning: ‘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)
intentional torts
The classic definition suggests it is unlikely an employer would be vicariously liable for such acts, as they would neither be authorised acts nor unauthorised ways of doing authorised acts. For vicarious liability to be proven in these cirucmnstnaces, the requirement for a close connection between the work an employee is employed to do and the tort they commit.
‘Frolic’ cases
If an employee is acting outside of their course of employment when they commit a tort, they
are often said to be ‘on a frolic of their own’. Many of the cases concern employees whose
work involves driving and who commit a tort while deviating from the route authorised by their
employers.
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’.
Employer’s indemnity
Employer may claim an indemnity against the employee who actually committed the tort, after they have been found vicariously liable and paid out compensation.
