Doctrine of vicarious liability Normally no person is held responsible for the wrongs done by someone else. However, there are few instances wherein a person can be held liable for the conduc conductt of anothe anotherr person person.. This This liabil liabilit ity y is known known as Vicari Vicarious ous Liabil Liability ity.. The The foll follow owin ing g rela relati tion onsh ship ipss are the the best best exam exampl ples es of Vica Vicari riou ouss Liab Liabil ilit ity y
•
Liability of the !rincipal for the act of his "gent Liability of the !artners
•
Liability of the #aster for the act of his $ervant
•
Liability of the !rincipal for the act of his "gent %hen a principal authorises his agent to perform any act, he becomes liable for the act of such agent provided the agent has conducted it in the course of performance of duties. Agency
The rules relating to the imposition of liability on a principal for the acts of an agen agentt were were deve develo lope ped d in the the cont contex extt of contr contrac actt law. law. Thei Theirr appl applic icat atio ion n to liability for a tort committed by an agent raises issues which are complex and beyond the scope of this reference. &n particular, it is not always clear whether the liability of a principal for an agent's tort is vicarious or personal. &t has been suggested that the liability of a principal will be personal rather than vicarious in the following situations •
where where the the wron wrongf gful ul act act was was spec specif ific ical ally ly inst instig igat ated ed,, auth author oris ised ed() () or ratified by the principal*
•
%her %heree the the wron wrongf gful ul act act amou amount ntss to a brea breach ch by the the prin princi cipa pall of a personal duty, liability for non+performance or non+observance of which cannot be avoided by delegation to another.
Liability of the !artners or the tort committed by a partner of a firm, in the normal course of business of that partnership, other partners are responsible to the same extent as that of the partner who is in fault. The liability thus arising will be -oint and several.
Liability of the #aster for the act of his $ervant The liability of the master for the act of his servant is based on the principle of respondeat superior', which means let the principal be liable'. This principle originates from the maxim , Qui Facit per Alium Facit per se ' which means he who does an act through another is deemed in law to do it himself'.
&n tort, the wrongful act of the servant is thus deemed to be the act of the master. However, such wrongful act should be within the course of his master's business and any act, which is not in the course of such business, will not make the master liable. The doctrine of vicarious liability generally operates within the law of torts. &t has become well+established in /nglish law and historically has been called 0#aster and $ervant liability,1 which clearly indicates the circumstances in which the doctrine becomes applicable in tort law. The general rule in tort law is that a person who authorises a tort will personally be liable for damage or harm as a result. However, vicarious liability defines the circumstances in which a person is liable for the torts of another without express authorisation or ratification. The most common example of vicarious liability is the liability of an employer for the torts of his employees committed in the cours coursee of empl employ oyme ment nt.. &t is not not neces necessa sary ry in such such circu circums mstan tance cess for for the the employer to have breached any duty that was owed to the in-ured party, and therefore it operates as strict or no+fault liability. &t is possible that the in-ured party could be either an employee or a stranger, and the employer can be held vicariously liable in both situations. The most important element to establishing a case for vicarious liability is that the wrongdoer be acting as a servant or employee, and that the wrong done be connected to the employee2s course of employment. Vicarious liability can only be imposed if it is proved that the employee was acting 0in the course of employment.1 This criteria is essential, and and re3ui re3uires res a clea clearr conn connec ecti tion on betw betwee een n the the empl employm oymen entt duti duties es and and the the employee2s acts complained of. "s such, most employer2s will be insured in order to avoid such liability. &n addition, in order to establish vicarious liability, it is necessary to show that an employee was employed under a contract of service, or in the case of an independent contractor, a contract for services. /nglish law has also established that an employer can be held vicariously liable for a breach of statutory duty by an employee, for example in circumstances such harassment or bullying within the workplace.
Vicarious liability “in the course of employment”
or an employer to be held liable, the wrong must be committed 0within the course of employment.1 employment.1 This criterion is a 3uestion 3uestion of fact, and it is immaterial immaterial whether the wrong committed by the employee was authorised or not. "n employer will only avoid liability in this situation if it can be shown that an employee acted 0on a frolic of his own,1 or in other words, if the employee acted in a way that was unconnected with his employment. 4ecently, the courts have been willing to impose liability in far+reaching circumstances on the issue of whether the wrong was committed 0in the course of employment.1 &mportant in this context is the case of Lister v. Hesley Hall Ltd. This case establishes that an employer cannot avoid liability liability by showing that an employee employee engaged in an inte intent ntio iona nall and and unau unauth thori orise sed d wron wrongd gdoi oing ng.. Thus Thus,, the the impo importa rtant nt fact factor or in est establ ablishi ishing ng vica vicari riou ouss liabi iabili lity ty is the the conn connec ecti tion on with ith the 0cou 0cours rsee of employment.1 However, it is important to note that an employer cannot avoid liabilit liability y if an employee acts in a way that could be described as 0incidental1 0incidental1 to his employment and the duties to which he is entrusted with. Therefore, in establishing whether vicarious liability exists, the 3uestion to be asked is firstly, whether the act complained of was committed 0in the course of employment1 and second secondly, ly, whethe whetherr the act is reasona reasonably bly 0incid 0incident ental1 al1 to the employ employee2 ee2ss empl employm oymen entt dutie duties. s. &f there there is a conn connec ecti tion on,, it is irrel irreleva evant nt whet whethe herr the the employee2s act was unauthorised. &n the wake of Lister, a more recent trend has been to impose liability upon an employer for violent acts committed by employees. &n the 5ourt of "ppeal case of #attis v. !ollock 6t7a lamingos Nightclub8 a nightclub owner was held vicariously liable for the violent acts of an employed doorman. The 5ourt of "ppeal applied the rationale of Lister and held that a 0broad1 approach was re3uired in assessing whether an individuals acts were sufficiently connected with the duties of his employment so as to -ustify imposing vicarious liability. Lloyd v Grace, Smith & o !"#"$% A "'
/ven where the act is done for the employee's own purposes and not for the benefit of the employer, it will be within the scope of the employment if it is sufficiently connected to an activity that the employee was authorised to carry out. %here vicarious liability is imposed on an employer, both the employee and employee will be held -ointly liable. &t must be noted that in the context of an independent contractor, an employer would be held vicariously liable where he authorised or ratified the tort.
&t is clear that vicarious liability will continue to operate significantly for an employee2s acts committed within the 0course of employment.1 However the case of Lister has expanded the approach taken by the courts in determining the circumstances for the applicability of vicarious liability, and has broadened the extent of the 0in the course of employment1 criteria. "lthough essential, this criterion has expanded to the point of allowing claims for vicarious liability in cases where liability would not have arguably been imposed. The extension of the liability to statutory duty only highlights this point. &n turn, the expansion of vicari vicarious ous liabil liabilit ity y will will have have far+rea far+reachi ching ng impli implicat cation ionss for employ employer2 er2ss in the future. The classic statement of the law until the recent cases was the formulation in $almond, Law of Torts a wrongful act is deemed to be done in the course of the employment &f it is either 98 a wrongful wrongful act authori authorised sed by the master, master, or :8 a wrongful wrongful and unauthor unauthorise ised d mode of doing doing some act authori authorised sed by the master
Supplement the ases, (hich (e have discussed in the class, at appropriate places