Wednesday, November 26, 2008

Negligence and Vicarious Liability

Photo Credit: Net Efekt from Flickr.com

Vicarious Liability

In our law a person may be liable for the negligent acts or omissions of another. This is known as vicarious liability.

This type of liability may arise where an employer instructs the employee to commit the negligent act. An employer may also be liable in circumstances where he allows a wrongful act to be done by his employee, when in a position to have prevented it.

Employers are liable to third parties, where employees commit wrongful acts during the course and scope of their employment. This applies even where the employer expressly prohibits the act of negligence.

Course and Scope of Employment
An employee is said to have acted during the course and scope of his employment, where the negligent act was committed by the employee in the exercise of the functions for which he was employed. For example where someone is employed as a delivery driver his employer will be liable for the employees negligent driving while he is attending to deliveries.

For there to be vicarious liability the relationship must be one of master and servant i.e. The employee must be subject to the employer's instructions as to the work to be done and the manner in which it is to be carried out.

Agent and subcontractors do not usually attract vicarious liability to their principals or main contractors. The reason for this is that agents and subcontractors do not fall under the direct control of their principals or main contractors.

Employers may be vicariously liable even for unlawful acts committed by the employee provided always that the acts were committed during the course and scope of the employee's employment.

Where however an employee completely abandons his duties and attends to his own affairs there is no vicarious liability. This also applies where an employee embarks on a 'frolic of his own'. In deciding whether the deviation from duty is sufficient to absolve the employer from liability the courts will take the surrounding circumstances into account with the overriding consideration being whether or not the employee was acting within the course and scope of his employment.

For example an employee giving a lift to a friend is clearly acting outside of the scope of his employment and the employer will not be liable should the employee's negligent driving result in injury to his friend. On the other hand where a driver deviates from an authorised route to purchase refreshments, the employer will be liable for any damage caused by the employee's negligence while doing so.

Bruce Lyle
Membership Services Manager

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