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vicarious liability


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Legal liability imposed on one person for torts or crimes committed by another (usually an employee but sometimes an independent contractor or agent), although the person made vicariously liable is not personally at fault. An employer is vicariously liable for torts committed by his employees when he has authorized or ratified them or when the tort was committed in the course of the employees' work. Thus negligent driving by someone employed as a driver is a tort committed in the course of his employment, but if the driver were to assault a passing pedestrian for motives of private revenge, the assault would not be connected with his job and his employer would not be liable. The test is whether the tort is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable (Lister v Hesley Hall [2002] 1 AC 215 (HL). Employers have been found vicariously liable for bullying in the workplace (Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34, [2006] IRLR 695) and for the stabbing of a guest by a bouncer outside a nightclub (Mattis v Pollock (t/a Flamingo's Nightclub) [2003] EWCA Civ 887, [2003] ICR 335). The purpose of the doctrine of vicarious liability is to ensure that an employer pays the costs of damage caused by his business operations. His vicarious liability, however, is in addition to the liability of the employee, who remains personally liable for his own torts. The person injured by the tort may sue either or both of them, but will generally prefer to sue the employer.

Vicarious criminal liability may effectively be imposed by statute on an employer for certain offences committed by an employee in relation to his employment. Thus it has been held that an employer is guilty of selling unfit food under the Food Act 1984 when his employee does the physical act of selling (the employee is also guilty, though in practice is rarely prosecuted). Likewise, an employer may be guilty of supplying goods under a false trade description when it is his employee who actually delivers them. For an offence that normally requires mens rea, an employer will only be vicariously liable if the offence relates to licensing laws. For example, if a licensee has delegated the entire management of his licensed premises to another person, and that person has committed the offence with the necessary mens rea, the licensee will be vicariously liable.

Vicarious liability for crimes may be imposed in certain other circumstances. The registered owner of a vehicle, for example, is expressly made liable by statute for fixed-penalty and excess parking charges, even if the fault for the offence was not his. If the offence is a regulatory offence of strict liability, the courts often also impose vicarious liability if the offence is defined in the statute in a way that makes this possible.

Subjects: Law.


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