Vicarious liability

Question 1

What is the difference between vicarious liability and strict liability?

Answer 1

Vicarious liability: liability of one party for a tort committed by another - known as secondary liability (not a tort)
* no need to prove fault on part of D as D who is vicariously liable incurs a strict liability (one party is laible despite abscene of fault)

Question 2

What are the elements of vicarious liability?

Answer 2

1. A, commits a tort and
2. A is an employee of D, or failing that, A is in a relationship akin to employment with D and
3. tort was committed in course of A’s employement/quasi employment

Question 3

2. A is an employee or in a relationship akin to employment with D?

Answer 3

D will not be vicariously liable unless relationship is:
* one of employment or
* of same nature as an employment

Question 4

3. Tort was committed in course of A’s employment/quasi employment?

Answer 4

For D to be vicariously liable, the acts must have been done in course of employement.
* there muse be a closeness of connection between employee’s wrongful act and their employement

Question 5

Close connection test?

Answer 5

Must be a relative closeness of connection between nature of employement and particular tort.
The test is:
* what functions or fields of activities have been entrusted by employer to employee (nature of job)
* was there sufficient connection between position they were employed and their wrongful conduct to make it fair and just for employer to be held liable

e.g., working at kiosk (responding to inquires) - function so close connection

Post 2002 (Lister conditions)

doesn’t just apply to negligence but to assault and battery

Question 6

The employer’s indemnity?

Answer 6

Civil Liability (Contribution) Act, an employer may be entitled to seek an indemnity from their employee should they be forced to pay damages in respect to employee’s tort - court will allow this if it’s just and equitable to do so.