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
conduct of another person. This liability is known as Vicarious Liability.
The following relationships are the best examples of Vicarious Liability:

 Liability of the Principal for the act of his Agent

 Liability of the Partners
 Liability of the Master for the act of his Servant

Liability of the Principal for the act of his Agent When 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
agent were developed in the context of contract law. Their application to
liability for a tort committed by an agent raises issues which are complex and
beyond the scope of this reference. In particular, it is not always clear whether
the liability of a principal for an agent’s tort is vicarious or personal.

It has been suggested that the liability of a principal will be personal rather than
vicarious in the following situations:

 where the wrongful act was specifically instigated, authorised39 or

ratified by the principal;

 Where the wrongful act amounts to a breach by the principal of a

personal duty, liability for non-performance or non-observance of which
cannot be avoided by delegation to another.

Liability of the Partners For 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 joint and several.

Liability of the Master for the act of his Servant 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’.

In 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. 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 criterion 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.

Lloyd v Grace, Smith & Co [1912] AC 716

Even 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.

Where vicarious liability is imposed on an employer, both the employee and

employee will be held jointly liable. 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
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. In turn, the expansion of
vicarious liability will have far-reaching implications for employer's in the
future.

The classic statement of the law until the recent cases was the formulation in
Salmond, Law of Torts: a wrongful act is deemed to be done in the course of the
employment:

If it is either:

1) a wrongful act authorised by the master, or

2) a wrongful and unauthorised mode of doing some act authorised by the

master

Supplement the Cases, which we have discussed in

the class, at appropriate places