Vicarious Liability Flashcards
What is vicarious liability under criminal law?
Vicarious liability on the part of the employer is conferred onto them by the conduct of an employee in the course and scope of the employee’s employment. This type of liability is strict, since it is not dependent on any fault on the part of the employer in regard to the offense. It is not recognised by criminal common law, but by statute.
How should courts determine the legislatures intention when interpreting a statute that they think might impose vicarious liability?
The courts will consider the legislatures intention, including:
a) whether the object of the enactment would be entirely defeated by not admitting vicarious liability
b) whether the offence in question is an offence of strict liability - if so, it will attract vicarious liability
c) words such as by himself/servant/agent/sell/supply indicate that vicarious liability would apply
d) the class of person affected
e) the severity of the penalty
What are the elements for vicarious liability?
a) unlawful conduct on the part of the employee/agent
b) in the /course/scope of their employment
Is there a defence to vicarious liability?
Can an employee prove that the employee violated strict instruction and therefore escape vicarious liability? No. In fact, to escape liability, the employer’s instructions must have been so express and specific so as to cause the servant’s disobediance to fall outside of the scope of their employment or authority.
What did the court in S v Coetzee hold with respect to vicarious liability?
Legislation gives rise to criminal liability without fault. Hence, courts are reluctant to interpret statutory provisions which contain no express mens rea requirement as not requiring mens rea. As a general rule, people who are not at fault should not be deprived of their freedom by the State.
