VICARIOUS LIABILITY

Vicarious Liability

Vicarious Liability

This paper is based on a case scenario regarding Hergeeves' organisation, a British employment firm which has been reported to be involved in vicarious liability.

Hergeeves' potential liability

Just as in Caparo v. Dickman (1990), in which the common law duty of care owed by employers to their employees is founded on the contractual relationship between them. The duty owed to others that may be affected by the employer's activities is not defined with the same precision (www.veritas-consulting.co.uk). It is based on the principles of negligence in that a duty of care must first be established. This used to be decided on the basis of the neighbour principle. However, the notion of reasonable foresight is unquestionably too wide and has caused problems in civil actions in many areas of tort. It has therefore been further refined. Thus Hergeeves is responsible for abiding by the rules as founded on the contractual relationship between them (www.veritas-consulting.co.uk).

Condition for the Application of Vicarious Liability

It is easiest to appreciate the vicarious liability standard in the case of an employee who is authorized by the employer to perform an act and who, in the course of his or her employment, negligently injures another person. The injury would not have occurred but for the negligence of the employee, which would not have occurred but for his or her employment. Vicarious liability ties the employer to the actions of the employee relative to the following:

The degree of control the employer has over the actions of the employee

The benefit to the employer of the actions of the employee

The degree of power deferred to the employee by the employer and the vulnerability of the victim

The degree of notice which the employer had or should have had relative to the negligent or intentional actions of the employee

The degree of oversight reasonably required of an employer in the circumstances of the employer- employee relationship (www.gillhams.com)

What should the employees do?

Nowadays it is usual to talk of a three-stage test as defined in Caparo v. Dickman (1990):

Reasonable foreseeability;

Proximity; and

Is it fair and reasonable to impose a duty?

The last step brings in the concept of policy in which the courts have to balance the needs of an injured claimant against that of opening the “floodgates” and creating an indeterminate liability.

The three bases of liability under tort are intent, negligence, and strict liability. One is guilty of an intentional tort if he or ...