Vicarious Liability

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Vicarious liability means that an organisation can be held liable for the torts of those who work for them. The most common area where this exists is in an employee / employer relationship, however it also exists where there are contractors . The court finds there to be a contract of services were the employer exerts control over an employee who is integrated into the business. Dual liability may exist where both a contractor and a sub-contractor are both in a ‘servant/master’ relationship . It is important to note though that an employer is generally not liable for the torts of independent contractors.
The exception to this rule is if the activity is defined as extra-hazardous, where it becomes strict liability as the employer has a non-delegable duty. A further class of non-delegable duties were added in Woodland where it was found that if the victim had a known vulnerable characteristic then to fulfil the defendants duty of care requirement they had to retain a degree of control over the situation.
An important case in vicarious liability was Catholic Child Welfare Society as it gave 5 justifications for the doctrine. One: the employer is more likely to have the means to compensate, Two, the tortfeasor was under defendants control, Three the tort was part of an activity taken on behalf of the defendant, Four, the tortfeasors activity was likely part of the defendants business activity, and finally the defendant creates a risk by employing tortfeasor and so should bear the brunt of that risk.
The most prominent case that defined what ‘in the course of employment’ meant was Lister , where the court ruled that vicarious liability existed where there was a connection between the work of the tortfeasor and the wrong. Even where the wrong went against the tortfeasors work, as in this case the tortfeasor abused children which went against his work in caring for them, however as the abuse often happened in the context of discipline there was found to be a connection and so the employers were held liable. This definition sometimes produces unusual results as seen in Mattis where the tortfeasor carried out a revenge attack on a nightclub patron, but was still held to be within the scope of employment.