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Doctrine of vicarious liability
The doctrine of vicarious liability generally operates within the law of torts. It has become well-established in English law and historically has been called “Master and Servant liability,” 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 course of employment. It is not necessary in such circumstances for the employer to have breached any duty that was owed to the injured party, and therefore it operates as strict or no-fault liability. It is possible that the injured 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 employee's course of employment. Vicarious liability can only be imposed if it is proved that the employee was acting “in the course of employment.” This criteria is essential, and requires a clear connection between the employment duties and the employee's acts complained of. As such, most employer's will be insured in order to avoid such liability. In 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. English 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”
For an employer to be held liable, the wrong must be committed “within the course of employment.” This criteria is a question of fact, and it is immaterial whether the wrong committed by the employee was authorised or not. An employer will only avoid liability in this situation if it can be shown that an employee acted “on a frolic of his own,” or in other words, if the employee acted in a way that was unconnected with his employment. Recently, the courts have been willing to impose liability in far-reaching circumstances on the issue of whether the wrong was committed “in the course of employment.” Important in this context is the case of Lister v. Hesley Hall Ltd. This case establishes that an employer cannot avoid liability by showing that an employee engaged in an intentional and unauthorised wrongdoing. Thus, the important factor in establishing vicarious liability is the connection with the “course of employment.” However, it is important to note that an employer cannot avoid liability if an employee acts in a way that could be described as “incidental” to his employment and the duties to which he is entrusted with. Therefore, in establishing whether vicarious liability exists, the question to be asked is firstly, whether the act complained of was committed “in the course of employment” and secondly, whether the act is reasonably “incidental” to the employee's employment duties. If there is a connection, it is irrelevant whether the employee's act was unauthorised.
In the wake of Lister, a more recent trend has been to impose liability upon an employer for violent acts committed by employees. In the Court of Appeal case of Mattis v. Pollock (t/a Flamingos Nightclub) a nightclub owner was held vicariously liable for the violent acts of an employed doorman. The Court of Appeal applied the rationale of Lister and held that a “broad” approach was required in assessing whether an individuals acts were sufficiently connected with the duties of his employment so as to justify imposing vicarious liability.
Vicarious Liability under a statutory duty
An employer can also be held vicariously liable for an employee's breach of a statutory duty. This duty differs to that of a common law duty in that the duty does not rise by operation of common law principles, but by statute. As such, the statute imposes a duty on the employee personally and makes no reference to the employer. An employer can be held liable for the breach of a statutory duty even where the statutory duty is owed by the employee personally and individually. This circumstance would potentially arise in the context of harassment within the workplace, where one employee has been harassed or bullied by another- see the case of Majrowski v. Guy's and St Thomas's NHS Trust. However, emphasis will be placed on the intention of the legislature in creating the statute in deciding whether vicarious liability should be imposed.
Where vicarious liability is imposed on an employer, both the employee and employee will be held jointly liable. This operates to allow the employer to claim a contribution from the employee under the Civil Liability (Contribution) Act 1978. It 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.
It is clear that vicarious liability will continue to operate significantly for an employee's acts committed within the “course of employment.” 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 “in the course of employment” criteria. Although essential, this criteria 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. In turn, the expansion of vicarious liability will have far-reaching implications for employer's in the future..
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