The concept of vicarious liability is that one person has legal responsibility for a tort committed by another person. In an employment scenario for example, an employer will generally be vicariously liable for the negligent acts or omissions carried out by his employee, providing they are carried out in the course of their employment.
The acts for which an employer will be liable are:
- wrongful acts authorised by the employer, and
- authorised acts carried out in a wrongful and unauthorized manner.
The employer will also be vicariously liable for intentionally wrongful acts carried out purely for an employee’s own benefit where there is a very close connection between the employee’s wrongful acts and the nature of the employment (Lister and others v Hesley Hall Ltd (2001) 2 All ER 769, REF2).
The principle behind this concept is that an individual defendant is very often a “man of straw” and, although he is also liable jointly, he is probably not worth suing. Making the employer, who is likely to be in a stronger financial position responsible for the employee’s actions ensures that a claimant is adequately compensated for any loss he sustains. This is the ‘social convenience’ Lord Pearce speaks of, and is such because the Employer may bear little or no blame for the acts committed.
It is however thought to be simpler for the Employer to obtain liability insurance to cover the cost of potential claims, and this makes it a convenient solution. The cost of this insurance can be passed on to an employer’s customers through pricing of goods – striking a balance between the ‘social interest’ in providing the innocent party with a recourse without placing undue financial burden on businesses (Fleming, REF3).
There are also moral considerations to the concept – an employer profits from his business and therefore ought to bear any loss resulting from business activities.
Practically, employers are encouraged to take an interest in responsibly employing, training and supervising workers properly to avoid potential claims. This point would appear to offer the most logic for the concept of vicarious liability. In the Lister case, the line of reasoning was that the defendants owed a duty of care to the boys to take reasonable steps to ensure their safety and that this duty was non-delegable in nature. The job was entrusted to Mr Grain as Warden who abused the position. Perhaps proper vetting of the employee, supervision and a closer system of checks would have avoided the situation, which was reasonable to expect of the employers.
Lord Pearce in Imperial Chemical Industries calls it rough justice, as the workers involved were “trained, trusted, certificated men, and it would have been absurd to have someone to watch over them”. The employer in this instance did everything possible to ensure the safety of the project undertaken.
Although it does seem rough justice, practically there are two potential innocent parties – the employer who may have done everything to avoid the employee’s negligence, and the innocent victim. The employer is clearly in a better position to insure and protect against claims, and the risk should fall on him. Furthermore, Lord Pearce says “the master has an important duty of care for his servant; in general he has more skill in organisation, a wider foresight and more opportunity for innovation.” It follows that an employer is in a strong position to supervise and train (and dismiss where necessary) his staff accordingly and to take responsibility when his staff cause damage in the course of furthering his business.
- Salamond & Houston on Torts (21st Edition) p.443 in Hepple, Howarth & Matthews – Tort Cases & Materials (5th Edition – 2000) p.1045, Butterworths, London
- Lister and others v Hesley Hall Ltd (2001) 2 All ER 769 in W300: Agreements, Rights and Responsibilities (2003), Resource Book 3, Reading 6 pp. 20-24, Open University, Milton Keynes
- Fleming, The Law of Torts (9th Edition, 1998, pp.4-9-10) cited in Lister and others v Hesley Hall Ltd (2001) 2 All ER 769 in W300: Agreements, Rights and Responsibilities (2003), Resource Book 3, Reading 6 pp. 20-24, Open University, Milton Keynes
- Imperial Chemical Industries v Shatwell (1965) AC 656 found online at Butterworths.com using total search and typing in the case name.
- Vicarious Liability – Injury Lawyer <http://www.injurylawyer.solutions/vicarious-liability/>