Vicarious liability
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This article is written by Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The article discusses employers liability in tort law.

What is Law of Tort?

Tort is a civil wrong. The common torts are negligence, battery, trespass, etc. These are instances where someone has done injustice to someone else, and the law must determine where the mistake lies.

Definition by Sir John Salmond– “Tort is a civil wrong for which remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely equitable obligation”.

Definition by Fraser– “Tort is an infringement of a right in rem (right in general) of a private individual giving a right of compensation at the suit of the injured party”.

The person who commits a tort is known as the tortfeasor. The law imposes a duty to respect the legal rights vested in the members of the society and the person making the breach of that duty is said to have done a wrongful act.

In general, liability depends upon the defendant having an act or omission, acted in breach of legal duty incumbent on him and infringed a recognized legal rights vested in the plaintiff and thereby caused plaintiff harm of foreseeable kind, not eveccry harm is actionable, there is no liability for an inevitable accident, or an act of God: there is justification such as statutory or common law authority. The pecuniary consequences of liability may be shifted by liability insurance.

Personal liability of employers

Personal liability of an employer towards their employees is derived from both common and statutory law. Personal liability is concerned to ensure the physical safety of their employees. 

Duty of employer to take reasonable care to ensure the safety of employees

Any employer is bound to take reasonable care to ensure the safety of its employees. It is important to note that this duty is personal and non-representative. This duty was found in the case of English of Wilson and Clyde Company Limited.

Safe place of work

The place of employment must be safe, it must include safe premises with a safe working environment. The implementation of this principle is in the case of Latimer v AEC Ltd.

The obligation to provide a safe place of work extends to situations in which employees are tasked to go off-site to work in places which are not controlled by their employer. This means that those employees whose job is to go to different places can enjoy the same level of protection as those who work at the same place every day. The responsibility of providing a safe place to work will increase if employees are tasked with going off-sites to work which is not under the control of the employer.

This means that those “employees” whose job includes going to different places can enjoy the same level of security as those who work at the same place every day. In Wilson v. Tyneside Window Cleaning Company [1958], the court held that employers still have a duty to care for employees, even if they are working outside their employers premises.

Safe equipments and materials

An employer must equip their employees with safe and properly maintained equipment. If employees are working with particular equipment, it will be expected that the equipment is high quality which can avoid unnecessary risk which was decided in the case of Knowles v. Liverpool County Council.

Safe system of work

The safe system of work is a wide responsibility upon employers, it’s really difficult to decide what characterizes good and bad system of work. For this reason, the court decided to take the decision on a case to case basis, whether liability exists. This means that the duty to provide a safe system of work covers a wide range of conditions. This includes situations in which employees are not warned of any danger. In addition, an employer cannot simply provide a safeguard and then forget that a particular risk exists. This has been observed in Bax v Slough Metal [1973]. If a particular risk has arisen itself, then its mandatory for the employer to take preventive actions.

The duty to provide a safe system of work extends to protecting the mental health of employees. This was held in the case of Walker v Northumberland County Council [1995]. It was held that there was no reason why an employer’s working system did not include preventing psychiatric harm. However, there is a limit to the tasks expected of an employer in relation to providing a safe working system. It is the duty of an employer to impose a safe system of work; they are still entitled to trust the employees to follow it as a sensible man.

Competent staff

Employers should provide competent colleagues to their employees. The need to provide competent employees can give rise to two different types of liabilities – a breach of duty to provide competent staff, but also a claim can also arise as a result of vicarious liability.

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Vicarious liability

Generally, a person is liable for his own wrongdoing and one does not bear any obligation for the work done by others. When an employee commits a tort in the course of performance of his duty, the liability of the employer arises for such wrongful act. The employer will be liable because of the employee-employer relationship between the two. Both can be held liable for the same wrongful act. They will be considered as joint tortfeasor and their liability is joint or several. In this case plaintiff has a choice either to sue the employer or the employee or both of them.

Vicarious liability depends on two legal maxims:

Quit facit per alium facit per se

This maxim also applies in the case of principal and agent. When a person authorizes another person to perform a particular task, he becomes the chief and the doer becomes the agent. In this case, the principal becomes liable for the act of the agent. So, this legal maxim of vicarious liability is Quit facit per alium facit per se. It also implies that the employer (or senior) is responsible for the work of the employee.

Respondeat Superior 

This legal maxim means “Let the Superior be Liable”. If we have to understand this maxim then we can take a daily life example i.e. we often see seniors sending juniors to seek adjournments or file applications. If the junior is not able to understand the task well, or tries to show his or her legal skills by making some commitment even if not specifically instructed by the senior person, then in that case, the superior is responsible to answer judge and also to clients.

There are some tests which determine the relationship between employer and employee. They are:

  • The control test

The first significant test that the courts developed was the control test. According to the test, a person is called a servant if his employer controls not only the work he performs but the way he does it. In true sense, the employer is the party that establishes the work ethic of the employee and the employee in charge when he is performing his duties as an employee.

It was first established in the authority of Yewens v Noakes. In this case, the defendant was a hops merchant and possessed certain houses for the purposes of his business. The claimant was the clerk of the defendant with a set annual salary. Meanwhile, he was required to take care of the houses. Thus, he lived in the house with his family. The core issue of the case are regarding the payment of inhabited house duty. Therefore, the key question was whether the claimant is a servant of the defendant? It was held that in this instance, the claimant did not fall under the definition of a servant. On appeal, the court held that the premises were purely for trading purposes. Thus, the claimant was only a caretaker. Lord Bramwell stated that a servant is a person who is subject to the command of his master as to the manner in which he shall do his work. However, the control test is appropriate when the employer is superior to the employees in terms of knowledge, skills and experience.

  • The integration test

The organization test is first identified by Lord Denning in the case of Cassidy v. Ministry of Health. Lord Denning considered whether a doctor working within the NHS was an employee of the Health Authority. It was again referred by Lord Denning in the case of Stevenson, Jordan & Harrison Ltd v MacDonald and Evans. In this case, Lord Denning further stated that ‘one feature which seems to me to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it’.

  • Multiple tests

Multiple tests is also known as economic reality test. It includes analysis through a list of factors regarding employment status. This includes control and organization testing, it acknowledges that although each point is important, no one is a determinant because the employment relationship is far more complex. For the first time the application of test was in the case of Ready Mixed Concrete (South East) Ltd v MPNI., in this case some conditions were laid down:

  • The servant agrees to contribute their skills and work to the master for performing some service in exchange of a certain amount of consideration.
  • He agrees to work under a master during his employment service.
  • The other provisions of the contract are consistent with the provision of being a contract of service.

Control test is no longer the only way to determine the relationship of master and servant as it is felt that in the current situation, where there are many factors that affect the process of determining the relationship between employee and employer, It is not possible to use only one test and thus different aspects of a case are looked at to determine the nature of the relationship and to decide whether such a relationship belongs to the master and the servant.

Vicarious liability in employment

The employer may be held liable for actions or omissions during the employee’s job. An employer is not liable for work done by his employee which is not within the scope of his employment. There are three elements that need to be present for vicarious liability.

  1. The person who has committed the tort must be an employee.
  2. Tort must be committed by an employee.
  3. Tort must be committed during employment.

The above mentioned elements is required for vicarious liability. This can only exist if the person doing the wrong was an employee, and he / she commits the wrongdoing (result in damage and caused injury to someone), and the wrongdoing was committed during his work when he/she was under the scope of their employer.

Joint and several liabilities

If two or more defendants are found liable for an indivisible injury, the defendants will be jointly and severally liable. This means that each defendant is liable for the entire award regardless of the individual degree of defect. Because a so-called “deep pocket” defendant may be held liable for an entire damage award, even if such a defendant is only partially liable with. California has modified the doctrine of joint and several liabilities for personal injury cases. To make financial liability closer to the degree of defect, California does not impose multiple liabilities for non-economic damages.

Conclusion

Employer’s liability is a strict liability as he is responsible for any of the harmful actions committed by their employees. The most important thing that employers can do is to ensure that they have taken all reasonable steps to avoid any malicious act or omission from occurring. For example, to ensure a safe place of work, allotment of safe equipment and materials, providing competent staff to the employers to demonstrate an active commitment on the part of the employer towards combating discriminatory practices in the workplace. The employer will be liable for the tort committed by the employee within the course of employment. The employer will be vicariously liable for the tort done by an employee.


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