VICARIOUS LIABILITY

Vicarious Liability

Vicarious Liability

Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency - respondent superior - the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability.

Problems arise if someone suffers as the result of an employee's wrongful act which was not authorised by the employer. It is not always obvious in such a situation whether an employer should have liability. There is of course no legal problem if the wrongful act done by an employee was authorised by the employer. In that case the employer is generally fully liable (and the employee may also be liable) to the injured party. (Simon &Basil 2007)

Until the late 1990's the basic test for deciding whether an employer should be held liable in such a case was to consider whether the employee had used an unauthorised method to do a job he was authorised to do (in which case the employer would be vicariously liable) or whether he was simply doing something which was unauthorised (in which case the employer would not be vicariously liable). In 2001 the House of Lords ruled that "important legal decisions should not turn on such semantics" ( Lister & ors v Hesley Hall Ltd 2001 ICR 665, House of Lords [2001] UKHL 22) and it is now established that the correct test is to concentrate on the connection between the nature of the employment and the particular wrong and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable (see for example Dubai Aluminium Co Ltd v Salaam & ors HL 2003 IRLR 608 and Bernard v The Attorney General of Jamaica PC 2005 IRLR 398). More than one "employer" can share 'joint vicarious liability' in line with Court of Appeal decisions. None of this of course rules out the old traditional test as an aid to deciding whether the employer should be liable for unauthorised wrongful acts of his employees but does put it into a proper perspective. (Glanville 1957)

An employer can be vicariously liable for breach of a statutory ...