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Vicarious liability
Introduction
Vicarious liability arises when one party is responsible for the torts of another. This situation occurs most frequently when an employer is held responsible for torts committed by an employee. The concept may appear unfair, since it holds a third party responsible for the actions of another, despite the fact that there may be no fault on the part of that third party. Vicarious liability can be justified, however, by the idea that if someone has control over another, he or she should be held responsible for the others actions.
Key questions
In order for vicarious liability to apply, the courts must ask two questions:
Employees
Employers are liable for torts committed by their employees, but not for those committed by independent contractors. Independent contractors include, for example, plumbers or electricians hired by a householder, and they are usually responsible for their own torts. In terms of vicarious liability, it is therefore essential to establish exactly who is classed as an employee. While this may appear straightforward at first, it has proven to be surprisingly tricky in some cases, and the courts have developed several tests to determine the status of a persons employment.
status.
Control test
The courts look at who has control over the way that the work is carried out. If the employer sets out how the work is to be done and when it is to be done by, the courts are more likely to consider the person carrying out the work to be an employee. If, on the other hand, it was up to the person carrying out the work to determine how and when it should be done, that person would be more likely to be classed as an independent contractor.
Integration test
This test asks whether the persons work is an integral part of the business. A person employed to work on the till in a shop would usually be an employee; however, if the till was broken, the person called in to fix it would probably be an
Employees on loan
Sometimes, an employee may be on loan to another employer. If the employee commits a tort while on loan, it must be determined for whom he or she was working at the time. The usual rule is that the employee remains the responsibility of the first employer who loaned him or
her out.
by the employer
Employers indemnity
As vicarious liability means that two parties are held responsible for a tort, the Civil Liability (Contribution) Act 1978 applies. This means that an employer found vicariously liable may, in turn, sue its employee to recover some or all of the damages awarded against it. Common