Vicarious Liability (delict)

Question 1

Vicarious Liability Definition (employer is responsible for employee, law of delict, 2 Latin phrases, 2 essentials)

Answer 1

Vicarious liability is when the employer is responsible for the actions of an employee and is based upon the law of delict. There are two phrases in Latin that define the meaning of vicarious liability.
• “Respondeat superior” which means let the master be responsible and
• “Qui facit alium facit per se” meaning a person who does something through the actions of another is liable as if he has done it himself

Vicariously liability only applies when there are two essentials in bringing an act against the employer. In a case you must prove that the individual committing the delictual act is:

1. Must be an employee
2. Must be acting within the course of their employment

Question 2

Two Important Cases

Answer 2

Kirby V NCB (National Coal Board) (1958)

Williams V A. & W. Hemphill Ltd. (1966)

Question 3

Kirby V NCB (National Coal Board) (1958)

This case provides the guidelines which determine whether an employee is acting within the scope of their employment.

Answer 3

The Kirby v NCB (1958) case involved miners who took a break from work and went to smoke in an unauthorised area. As a result of smoking, there was an explosion and Kirby was injured.

It was held that NBC was not vicariously liable in this case because smoking in the mines was expressly forbidden by statute.

Question 4

The Kirby v NCB (1958)

Lord President Clyde established four guidelines to consider vicarious liability.

Answer 4

1. if the employer authorised the work, then the employer is responsible for it
2. even when the employee does authorised work in an unauthorised way, the employer remains liable
3. where the employee has committed a delict when doing unauthorised work, the courts may decide that the employer is vicariously liable where the employee is considered to be acting in the employer’s interest
4. if the employee uses the employer’s equipment for his/her own purposes then the employer is not liable (in favour of the employer)

Question 5

Williams v A. & W. Hemphill Ltd. (1966)

This case is an example of Lord President Clyde’s ruling where when an employee does authorised work in an unauthorised way but the employer remains liable.

Answer 5

Williams v A. & W. Hemphill Ltd. (1966) case involves a minibus driver who was employed to pick up some BB boys from summer camp and drive them back to Glasgow. The employer instructed the driver to take a specific route back to Glasgow however the driver deviated from the route and an accident occurred.

It was ruled that the driver was working within the scope of employment because although he carried out the job in an unauthorised way the deviation was not for his own purposes making the employer liable.