What is Vicarious liability in tort?

Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior (Master – Servant rule), the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control” the activities of a violator. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.

Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts or omissions by their employees in the course of employment (sometimes referred to as ‘scope and course of employment’). To determine whether the employer is liable, the difference between an independent contractor and an employee is to be drawn. In order to be vicariously liable, there must be a requisite relationship between the defendant the tort feasor, which could be examined by three tests: Control test, Organisation test and Sufficient relationship test. An employer may be held liable under principles of vicarious liability if an employee does an authorised act in an unauthorised way.

Employers may also be liable under the common law principle represented in the Latin phrase, qui facit per alium facit per se (one who acts through another acts in one’s own interests). That is a parallel concept to vicarious liability and strict liability, in which one person is held liable in criminal law or tort for the acts or omissions of another.

A common misconception involves the liability of the employee for tortious acts committed within the scope and authority of their employment. Although the employer is liable under respondeat superior for the employee’s conduct, the employee, too, remains jointly liable for the harm caused.

There are three conditions that need to be established:

  • There has to be a tort
  • There has to be something like an employment or agency relationship
  • The act or omission has to be committed in the course of employment.

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