The following PI & Clinical Negligence practice note Produced in partnership with Andrew Wilson provides comprehensive and up to date legal information covering:
To identify the circumstances in which a court may find an employer to be vicariously liable for a tort committed by an employee it is useful to trace the development of the doctrine.
Historically, the test to be applied was the one described by Salmond in his 1907 text Law of Torts.
The fundamental proposition was that:
‘a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment’
Salmond went on to say that it was deemed to be done in the course of his employment if it was either:
a wrongful act authorised by the master, or
a wrongful and unauthorised mode of doing some act authorised by the master
Before Lister (see below), a claimant would seek to establish that the tortfeasor was acting in the course of their employment when committing the tort. This would involve an investigation of the nature and scope of the instructions and authority given by the employer to the tortfeasor. The court would have to determine whether the employee undertook an:
authorised act—an employer would be held vicariously liable for an employee’s actions when that employee was found to have undertaken an authorised act (NOTE: if the negligent act or a negligent method was found to have been authorised by the employer, the liability
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