The word 'vicarious' is derived from the Latin word for 'change' or ‘alteration’.
Vicarious
liability is an aberration from the norm of holding the tortfeasor liable for damage caused by
their own tortious liability. It is also referred to as imputed negligence. Legal relationships
that can lead to imputed negligence include the relationship between parent and child,
husband and wife, owner of a vehicle and driver, and employer and employee etc. The
persons who are held vicariously liable need not be personally connected to the tort or be in
anyway responsible. Thus vicarious liability is a form of strict liability.
Many reasons have been advanced to justify this departure from the fault principle. It is
commonly said that the reasons behind the doctrine of vicarious liability are first, that the
employer is in a better position to absorb the legal costs either by purchasing insurance or
increasing his prices. Secondly, that the imposition of liability should encourage the employer
to ensure the highest possible safety standards in running his business. The Latin maxim ‘qui
facit per alium facit per se’ that means he who acts through another shall deemed to have
acted on his own and ‘respondeat superior’ (“let the master answer”) is commonly used in
employer-employee relationships.
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. The most important element to
establishing a case for vicarious liability is that the wrongdoer be acting as an employee or
employees, and that the wrong done be connected to the employee’s course of employment.
Extent of Vicarious Liability
The master (or employer) is liable for the torts committed by his servant (or employee) only
when it committed during the course of employment. It is important to note that the vicarious
liability of the employer is additional to the ‘primary’ liability of the employee for
negligence. Both are liable— ‘jointly and severally’, as it is put. The common law implies
into the contract of employment a term to the effect that the employee will perform the
contract with reasonable care.
On the basis of this term, the employer is entitled to recover from the employee contribution
to any damages which the employer is liable to pay to the person injured or killed. If the
employer was not negligent at all, it will be entitled to be fully indemnified by the employee.
There are three basic requirements to attribute liability to the employer. Firstly, it must be
established that the tort was committed by the employee; secondly, the relationship between
the master and employee should be established; thirdly, the tort must have been committed in
the course of employment.
Course of Employment
An employer will only be liable for torts which the employee commits in the course of
employment. Although this is a question of fact in each case, there is little consistency in the
decisions. It is therefore extremely difficult to state the law simply. Course of employment is
a legal consideration of all circumstances which may occur in the performance of a person's
job, especially during a period of time where specific objectives are given by the employer to
the employee are being fulfilled.
The course of employment encompasses the actual period of employment and the period
during which the employee, while on the employer's premises, prepares to commence or to
depart from work, such as by changing clothes. Employer-sponsored recreational activities
are also considered part of the course of employment when organized, encouraged, or
supported by the employer for business purposes, such as the promotion of efficiency.
For an act to be considered within the course of employment it must either be authorized or
be so connected with an authorized act that it can be considered a mode, though an improper
mode, of performing it. In other words, an act can be said to be within the realm of “course of
employment” if it is either an authorized act or a wrongful way of doing an authorized act. If
an employee expressly authorizes an unlawful act, he or she will be primarily liable.
The position is more difficult in cases in which the employer is said to have authorized a
wrongful act by implication. This 'implied authority' approach seems to have lost currency
but it was accepted in the early 20th century1 10 and it was even then probably little more
than a means of justifying the outcome which the courts desired.
An employer will usually be liable for acts which are wrongful ways of doing something
authorized by the employer, even if the acts themselves were expressly forbidden by the
employer2. The court should determine the fundamental question of whether the wrongful act
is sufficiently related to conduct authorized by the employer to justify the imposition of
vicarious liability. Where there is a significant connection between the creation or
enhancement of a risk and the wrong that occurs, the employer can be held vicariously liable.
1
Poland v Parr & Sons [1927] 1 KB 236
2
Salmond & Heuston on the Law of Torts, 1996, p443
