Tort Law - Negligence

Vicarious Liability

When a person commits a tort, and it is found that they were under the control or supervision of an employer, then the employer can face liability for the same. The employer  need not to have had any hand in the tort, and may even have taken steps to ensure it would not happen, but the employer nevertheless will remain liable.

 

This is not to be confused with cases where plaintiffs ignore impecunious defendants and look for the wealthiest potential defendant so as to ensure a large award in damages can actually be paid out. In such cases the liability argued for is directly related to the causal chain, whereas in vicarious liability the employer is held liable simply due to their position as employer.

 

There are certain parameters within which vicarious liability exists. These are as follows:

 

Employee or Contractor?

There may be a question as to whether the perpetrator’s relationship with the business concerned is that of an employee or that of a contractor. This is important because a business is not vicariously liable if the tortfeasor is not their employee. This is a long established principle; however they cannot wriggle out of liability simply by hiring people on a sub-contract arrangement. The court in Hollis v Vabu[1] recognised that the “master-servant” test came from feudal times and it identified a need to examine the degree of control the putative employer has over the tortfeasor. The following 10 points were considered to be important:

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Unauthorised Acts by an Employee

If an employee performs an unauthorised act or performs an act in an unauthorised manner, and harm arises to another party due to that unauthorised act, then the employer is not vicariously liable. The bar to non-liability, however, is very high. The mere fact that the employee was disallowed from doing something illegal is not enough.

 

 In Bugge v Brown[2] there was a worker on a station was sent to a remote part of the property to cut thistles and told to stay overnight in an abandoned house. Instead he camped in the area where his work was and lit a campfire. The fire burned out of control and burned the neighbouring property. The court ruled that a master is liable even if the servant’s acts are beyond the authority they were granted. Vicarious liability still remains even if the employer can prove that he forbade the act or manner of acting responsible to the cause of harm. Even if the act is a crime, the employer is responsible as long as the employee is acting within the scope of employment.

 

Vicarious liability ceases only where the servant’s act is so alien to his/her employment that...

 

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[1] Hollis v Vabu Pty Ltd [2001] HCA 44

[2] Bugge v Brown (1919) 26 CLR 110.

[3] Deatons Pty Ltd v Flew (1949) 79 CLR 370.

[4] Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716. This case concerns theft by an employee of a customer’s belongings.