Vicarious Liability refers to the situationin which someone is held liable for the tort carried out by another. Theprinciple of Vicarious Liability is most commonly applied to in employmentrelationships where the employer is liable for the tort of an employee,however; due to recent case law developments, vicarious liability has begun toexpand outside the employment relationship. In this response, I plan to analysewhether the principle of vicarious liability imposes an unfair burden on thirdparties or whether it ensures the claimant has access to sufficient compensation. Vicarious liability arises as a result of therelationship between the person who commits the tort, known as the tortfeasorand a third party, this relationship is usually one of an employmentcontext. When vicarious liabilityarises, the employer is held jointly liable with the employee. The traditionalapproach of vicarious liability restricted its application to an employmentrelationship where certain elements must be satisfied in order for the employerto be held liable for the tortious actions of the employee. These elementsinclude the establishment of an employment relationship and the completion of atort from an employee1. Theprinciple itself raises the question of whether it is unjust to imposeliability upon someone who was not at fault.
The recent case of Various claimants v Catholic Child WelfareSociety and others (2012)2alsoknown as the ‘Christian Brothers Case’ extendedthe law of vicarious liability beyond the employment relationship thusincluding illegal activities in which liability is shared with the employer3. This case allowed the test of whether it is’fair, just and reasonable’ to be used to impose liability upon a third party4.The courts must now recognise whether a relationship that gives rise tovicarious liability exists in order to ensure the imposition of liability isfair. In terms of the employment context ofvicarious liability, the employer is held responsible for the actions of theiremployees. This can be seen as unfair when a tort is carried out by anemployee. The employer would not have committed the tort but liability wouldmost likely still fall upon them.
This can be seen in the case of Lister v Hesley Hall LTD (2002)5where the employers were held liable for the sexual abuse carried out bytheir employees towards the students. The House of Lords used the ‘closeness ofconnection’ test to identify whether vicarious liability could arise for anintentionally wrongful act6.The imposition of vicarious liability upon the employers within this case canbe considered unfair. The employers weren’t aware that the abuse was beingcarried out and therefore had no means to prevent it from occurring, however;the House of Lords held that the employers should have known about the abusebecause there was an obvious risk. If vicarious liability is successfullyimposed upon a third party such as an employer then they are held jointlyliable with the employee and the claimant can sue either or both of them7.
The employer, now held liable for the tort would be most likely to paycompensation as they have the means to do so where as the or would be unlikelyto have sufficient funds to compensate. . This can be seen as unfair,especially if the amount of compensation is substantial. It was held within therecent case of JGE v The Trustees of thePortsmouth Roman Catholic Diocesan Trust (2012)8that the church was vicariously liable to pay damages to the claimant as aresult of the defendants conduct9. Thechurch was required to pay damages as the relationship between them and thedefendant was akin to one of employment.
Although unfair to the Church to haveto pay damages, the claimant will have access to sufficient compensation. Manyemployers who are made liable for actions of an employee are likely to haveinsurance which helps compensate claimants. Whilevicarious liability can be considered unjust to those made liable by it, thereare means in which an employer can recoup compensationfrom the employee. The employer could potentially seek indemnity from theemployee in order to compensate them for the liability that fell upon them as aresult of the employee’s actions.
The court held within the case of Lister v Romford Ice & Cold Storage CoLTD (1957)10that the company was entitled to claim damages from the employee as he failedto use reasonable care in the course of his employment and was thereforeresponsible for the injuries. The financial burden of the vicarious liability imposed upon a thirdparty is reduced through the possibility of indemnity. Althoughvicarious liability can be seen as unfair as it imposes a burden on those whoare made liable through it, the courts often view the imposition of liabilityas just due to the employer having a degree of control over employees. They arealso responsible for their actions as well as any carelessness that occursduring the course of employment. It can be implied that if the employer iswilling to take the profit produced by the employee then they should also bearany losses which may occur.
Inconclusion, vicarious liability is most commonly applied in circumstances whicharise under an employment relationship, however; recent case developments suchas the infamous ‘Christian Brothers Case’ has extended vicarious liabilityoutside the scope of an employment relationship. By imposing liability upon athird party, it helps compensate the claimant as the third party would likelybe insured and be able to provide a sufficient amount of damages. This wouldmost likely not be provided by the tortfeasor as they are unlikely to have themeans to do so. Although the claimant is in a better position through thedoctrine of vicarious liability, it imposes an unfair burden on those who aremade liable from it. The third party, usually an employer wouldn’t have carriedout the tort but liability to compensate the claimant would still fall uponthem as they are seen as responsible for the actions of their employees. 1 Kirsty Horsey and Erika Rackley, Tort Law.2 3 4 5 6 7 8 ‘JGE V.
The Trustees Of The Portsmouth RomanCatholic Diocesan Trust’ (Crin.org, 2017)