Business, Legal & Accounting Glossary
Vicarious liability is the principle by which one person can be held liable for the torts of another. The person held vicariously liable need not necessarily be a tort-feasor himself — he may in some circumstances be completely blameless — but there must usually be some sense in which he has authorised the acts of the party who is at fault.
There are three common circumstances in which person A may be vicariously liable for the torts of person B.
As a general principle, parents are not vicariously liable for the torts of their children; however, parents may be liable in their own right in negligence if they fail to exercise reasonable parental control over their children.
The general rule here is that it is the fact of employment that gives rise to the vicarious liability, not the actions of the employer who may be completely blameless. In Rose v Plenty (1975) the employee was acting in a manner expressly prohibited by the employer, but was nevertheless held liable in the Court of Appeal when the employee caused an injury. To establish vicarious liability, the claimant has to show two things:
The claimant should also bear in mind that:
Who is a servant?
Where the tort-feasor is a genuine employee of the defendant, he will generally be a ‘servant’ for these purposes and no difficulty arises. Problems usually crop up where the tort-feasor is a self-employed person, acting under a contract to perform a specific task. It is then not clear that a ‘master-servant’ relationship arises between the tort-feasor and the defendant. Various tests have been proposed to identify whether there is a master-servant relationship.
What actions by the employee constitute the ’employer’s business’?
The employee must be carrying out the employer’s business and not, in the words of Parke B in Joel v. Morrison (1835) 6 C&P 501, on a frolic of his own. In many cases, it will be obvious whether the employee is carrying out the employee’s business, but the higher courts are frequently called on to decide borderline cases. From these cases, the principle seems to emerge that there is a strong presumption in favour of vicarious liability whenever the employee is ‘at work’, even if he is carrying on work in a way which would be absolutely prohibited by the employee (see Limpus v London General Omnibus (1862)). However, there are limits to this presumption — deliberate wrongdoing by the employee is unlikely to be attributed to the employer (Keppel Bus Co v Saad Bin Ahmad 1974).
There are various contractual relationships which appear to be employer-employee relationship but which, for policy or historical reasons, are not held to be so. There may be special rules of procedure, or limitations of liability, in these circumstances.
Since the abolition of the doctrine of common employment, it is not at all uncommon for the claimant in a vicarious liability action to be himself an employee of the defendant. If, for example, I am injured by a co-worker in the course of work, I could take action against my employer for his vicarious liability for my co-worker’s negligence, rather than against my co-worker directly. This won’t do much for industrial relations, but such a course of action may be attractive because:
However, the employer’s vicarious liability runs alongside whatever primary liability he might have. So even if a vicarious action would fail (perhaps because at the time of the accident I was acting in the course of business, but my co-worker was not) I can still proceed against my employer for breach of his primary duty to provide competent co-workers (see employers liability). My employer might also be liable for breach of statutory duty in some circumstances. In short, if I am injured by a co-worker in the course of work, I can proceed against my employer both vicariously and primarily.
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This glossary post was last updated: 7th April, 2020 | 11 Views.