Vicarious Liability

A short overview as well as my personal opinion

Hello everyone, after a long break I have decided to focus on a sub-section of Tort law: Vicarious Liability. Before reading this article I would recommend having a look at one of my previous pieces: ‘Tort Law’.

As a quick recap, Tort law involves a civil wrong being committed, where this specific wrong is non-contractual, and the claimant can take it up in court. Vicarious liability is when the defendant has a close relationship to the person who committed the Tort; most commonly the relationship of employer and employee. This may be for a number of reasons, but to simplify, it is most commonly because the wrongdoing occurs whilst the employee is at work, or carrying out a course of work.

There are three distinct stages of Vicarious Liability:

1. Stage 0- The initial wrongdoing is committed, possibly negligence, assault or another similar tortious act.

2. Stage 1- Discuss whether or not there is a relationship between the defendant and the wrongdoer. Situations of “akin to employment” are equally liable.

3. Stage 2- Is there a connection between the wrongdoing, and the relationship? For instance, was the act committed on the jobs premises, or perhaps miles away?

This section of law lacks many tests, or ‘checkboxes’ which are common to many other areas. Alternatively, Vicarious Liability focuses on the factors of the case, where many factors are substantial enough to deem the case as ‘Vicarious Liability’, but no specific factors are necessary for this decision to be made. An example of a factor may be: ‘were any payments made’, or ‘did the defendant have any control over the wrongdoer’, or perhaps ‘did the defendant benefit from the wrongdoers actions’. Each and every one of these factors would be significant to a case.

One standout factor however, focuses upon the ‘Course of employment’. This revolves around the proximity of the act committed, to the employment in question, in order to ensure that the employer is liable. Previous causation, such as ‘but for’ causation is not sufficient in this sense. A frequent question asked within this sector is, ‘Was the employee acting within their normal course of employment?’. Courts often disagree over this point, as a distinction is difficult to be found. For instance, once a postman was finished with their long shift, they drove home and consequently hit a pedestrian. Was the postman acting within their course of employment? Arguments for either view could definitely be made, nevertheless, the court has to come to a final conclusion. Although evoking a great deal of grey area upon this field, I believe that it is nothing short of necessary. This is because of the fact that this area already has a heavily opinionated persona, deeming a simple ‘checklist’ method to be out of place.

A specific court case surrounding this sector of the Law is Rose v Plenty.

The details of this case are as follows:

A milkman paid a 13 year old boy to perform his duties of work alongside him, even though his company explicitly stated that he was not allowed to do so. During the course of this activity, the boy is injured through the negligent driving of the milkman. Consequently, the boy sought damages for personal injuries, making claims against both the milkman and his employer. Why? There are many reasons for wishing to sue the employer as well as the employee, partially because they have more accessible funds, but also because they are able to spread the damages more easily.

The court dismissed the employer claim, however they decided to allow the claims against the employee, as the act itself was acting outside of the scope of employment. The court believed that the employee was not supposed to be driving the boy around, and especially that he was not supposed to have hired that boy as well. Had the employer done what he was told, then the result wouldn’t have happened. Therefore, how is it possible to deem the employer to be guilty?

Surprisingly to many, this result was overturned.

Lord Denning, along with Scarman LJ decided that although the act was not done with the employers intention, or in fact with their knowledge, the act was still committed by somebody furthering the purpose of the employers business with the usage of the child. This child’s work, along with the employee’s was benefitting the employer, thus making them liable. Although prohibited, the actions surrounding the event were still moving within the employers purpose.

This verdict was surprising to many, seemingly overlooking the moral outlook on the situation. Nevertheless, this verdict lies entirely within the law. Personally, I found this verdict to be outrageous, entirely ignoring the obvious fact that the employee acted outside of his allowed scope. However, as I have taken time to assess this outcome of the case, I now understand that although partially immoral, the child has every right to legally claim damages from the employee. Most of the evidence for this claim reside in the fact that both the milkman, and the child were acting with the intention to carry out the activity which most benefits the employer.

Vicarious Liability, although a partially difficult section of the law, provides many victims with the option to claim benefits from not only the wrongdoer, but also their employers. I understand that it is controversial, however I believe this factor to be necessary and entirely justified; the lack of it would lead to many employers acting immorally without the threat of persecution. Further justification for it includes: The enterprise risk theory (by bearing the benefits of profits, you must equally bear the risk of costs), the deep pockets theory, and the loss spreading theory. Finally, as an entirety, although it is seemingly an uncertain field of law, the positives are that it provides each side of the case with flexibility, allowing everyone involved to have a fair chance.

Thank you very much more reading, I will release another issue next week. This may be upon the subject of artificial intelligence within law, or perhaps a new topic altogether.

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