Vicarious liability

CPA-Business-Law-Section-1 BLOCK RELEASE

Generally each person is liable for his or her own torts. There are circumstances however, that another person may be held liable for torts committed another. This is referred to as vicarious liability. This mostly tend to occur in employment scenarios
The following must exist to establish liability;
1) There must be a master/servant relationship between the parties concerned
2) The servant must have been acting in the course of employment at the material

Who exactly is a servant?

Masters/Employers will only be liable for the torts of their employees/servants. They will not usually be liable for the torts of their independent contractors. It is therefore necessary to establish the status of the tortfeasor.

The control test

In this case a servant is defined as someone over whom the master has control over, i.e. someone employed over a contract of service. While an independent contractor is someone who is under a contract for service in which case such a person work using their own judgement.

In Collins v Hertfordshire, Hilbery J said: “The distinction between a contract for services and a contract of service can be summarized in this way: In one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done, but how it shall be done.”

The nature of the employment test

One accepted view is that people who have a ‘contract of service’ (an employment contract) are employees, but people who have a ‘contract for services’ (a service contract) are independent contractors.

What is “course of employment?”

An acts done under the course of employment where it is proved to have been authorized the master.
An employer will usually be liable for
a) Wrongful acts which are actually authorised him.
b) Acts which are wrongful ways of doing something authorised the employer, even if the acts themselves were expressly forbidden the employer

Limpus v. London General Omnibus Co. 1862
A bus driver racing to a stop to collect passengers deliberately obstructed the driver of a bus of a rival company, overturning the latter’s vehicle.
The bus driver had been given instructions against obstructing other buses.
Held; The defendants were liable. The driver was acting within the course of his employment at the time; it was immaterial whether his act was forbidden.

The master is only liable if the tort was committed in the course of employment. See the following case;

Storey v. Ashton (1869)
A driver took a different route to make a frolic of his own. On this way he caused an accident because of his negligence. Held; No liability of the company, though this was just a little detour, the driver was carrying out his own business.
Note; Not every detour taken the drive will usually take him out of the course of employment because some may be necessary. The circumstances surrounding the case should be considered too.

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