Vicarious liability

Nature and operation of vicarious liability

Broadly, under the doctrine of vicarious liability, an employer is liable for an employee’s tortious acts if they were committed in the course of the employee’s employment or are closely connected with what the employee is authorised by the employer to do.

For vicarious liability to attach to the employer, there must have been an underlying tort committed by the employee, whether negligent or intentional. The claimant must, therefore, have a potential claim as against the employee who caused the accident.

It is referred to as ‘vicarious liability’ because the actual breach of duty is that of the employee. Vicarious liability makes an employer strictly liable for wrongful acts committed by an employee in the course of employment or closely connected with their duties, ie they are held liable without any need to prove a breach of duty on their part.

To succeed in a claim against a defendant based on its vicarious liability, the claimant must satisfy the following two-stage test:

1. •

   stage one—the relationship between the defendant and the tortfeasor was one of employment or ‘akin to employment’

2. •

   stage two