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Doctrine of vicarious liability

Normally no person is held responsible for the wrongs done by someone else. However, there are few instances wherein a person can be held liable for the conduct of another person. This liability is known as Vicarious Liability. The following relationships are the best examples of Vicarious Liability Liability of the !rincipal for the act of his "gent Liability of the !artners Liability of the #aster for the act of his $ervant Liability of the !rincipal for the act of his "gent %hen a principal authorises his agent to perform any act, he becomes liable for the act of such agent provided the agent has conducted it in the course of performance of duties. Agency The rules relating to the imposition of liability on a principal for the acts of an agent were developed in the context of contract law. Their application to liability for a tort committed by an agent raises issues which are complex and beyond the scope of this reference. &n particular, it is not always clear whether the liability of a principal for an agent's tort is vicarious or personal. &t has been suggested that the liability of a principal will be personal rather than vicarious in the following situations where the wrongful act was specifically instigated, authorised() or ratified by the principal*

%here the wrongful act amounts to a breach by the principal of a personal duty, liability for non+performance or non+observance of which cannot be avoided by delegation to another. Liability of the !artners ,or the tort committed by a partner of a firm, in the normal course of business of that partnership, other partners are responsible to the same extent as that of the partner who is in fault. The liability thus arising will be -oint and several.

Liability of the #aster for the act of his $ervant The liability of the master for the act of his servant is based on the principle of .respondeat superior', which means .let the principal be liable'. This principle originates from the maxim ., Qui Facit per Alium Facit per se' which means .he who does an act through another is deemed in law to do it himself'.

&n tort, the wrongful act of the servant is thus deemed to be the act of the master. However, such wrongful act should be within the course of his master's business and any act, which is not in the course of such business, will not make the master liable. The doctrine of vicarious liability generally operates within the law of torts. &t has become well+established in /nglish law and historically has been called 0#aster and $ervant liability,1 which clearly indicates the circumstances in which the doctrine becomes applicable in tort law. The general rule in tort law is that a person who authorises a tort will personally be liable for damage or harm as a result. However, vicarious liability defines the circumstances in which a person is liable for the torts of another without express authorisation or ratification. The most common example of vicarious liability is the liability of an employer for the torts of his employees committed in the course of employment. &t is not necessary in such circumstances for the employer to have breached any duty that was owed to the in-ured party, and therefore it operates as strict or no+fault liability. &t is possible that the in-ured party could be either an employee or a stranger, and the employer can be held vicariously liable in both situations. The most important element to establishing a case for vicarious liability is that the wrongdoer be acting as a servant or employee, and that the wrong done be connected to the employee2s course of employment. Vicarious liability can only be imposed if it is proved that the employee was acting 0in the course of employment.1 This criteria is essential, and re3uires a clear connection between the employment duties and the employee2s acts complained of. "s such, most employer2s will be insured in order to avoid such liability. &n addition, in order to establish vicarious liability, it is necessary to show that an employee was employed under a contract of service, or in the case of an independent contractor, a contract for services. /nglish law has also established that an employer can be held vicariously liable for a breach of statutory duty by an employee, for example in circumstances such harassment or bullying within the workplace.

Vicarious liability in the course of employment ,or an employer to be held liable, the wrong must be committed 0within the course of employment.1 This criterion is a 3uestion of fact, and it is immaterial whether the wrong committed by the employee was authorised or not. "n employer will only avoid liability in this situation if it can be shown that an employee acted 0on a frolic of his own,1 or in other words, if the employee acted in a way that was unconnected with his employment. 4ecently, the courts have been willing to impose liability in far+reaching circumstances on the issue of whether the wrong was committed 0in the course of employment.1 &mportant in this context is the case of Lister v. Hesley Hall Ltd. This case establishes that an employer cannot avoid liability by showing that an employee engaged in an intentional and unauthorised wrongdoing. Thus, the important factor in establishing vicarious liability is the connection with the 0course of employment.1 However, it is important to note that an employer cannot avoid liability if an employee acts in a way that could be described as 0incidental1 to his employment and the duties to which he is entrusted with. Therefore, in establishing whether vicarious liability exists, the 3uestion to be asked is firstly, whether the act complained of was committed 0in the course of employment1 and secondly, whether the act is reasonably 0incidental1 to the employee2s employment duties. &f there is a connection, it is irrelevant whether the employee2s act was unauthorised. &n the wake of Lister, a more recent trend has been to impose liability upon an employer for violent acts committed by employees. &n the 5ourt of "ppeal case of #attis v. !ollock 6t7a ,lamingos Nightclub8 a nightclub owner was held vicariously liable for the violent acts of an employed doorman. The 5ourt of "ppeal applied the rationale of Lister and held that a 0broad1 approach was re3uired in assessing whether an individuals acts were sufficiently connected with the duties of his employment so as to -ustify imposing vicarious liability. Lloyd v Grace, Smith & o !"#"$% A &"' /ven where the act is done for the employee's own purposes and not for the benefit of the employer, it will be within the scope of the employment if it is sufficiently connected to an activity that the employee was authorised to carry out. %here vicarious liability is imposed on an employer, both the employee and employee will be held -ointly liable. &t must be noted that in the context of an independent contractor, an employer would be held vicariously liable where he authorised or ratified the tort.

&t is clear that vicarious liability will continue to operate significantly for an employee2s acts committed within the 0course of employment.1 However the case of Lister has expanded the approach taken by the courts in determining the circumstances for the applicability of vicarious liability, and has broadened the extent of the 0in the course of employment1 criteria. "lthough essential, this criterion has expanded to the point of allowing claims for vicarious liability in cases where liability would not have arguably been imposed. The extension of the liability to statutory duty only highlights this point. &n turn, the expansion of vicarious liability will have far+reaching implications for employer2s in the future. The classic statement of the law until the recent cases was the formulation in $almond, Law of Torts a wrongful act is deemed to be done in the course of the employment &f it is either 98 a wrongful act authorised by the master, or :8 a wrongful and unauthorised mode of doing some act authorised by the master

Supplement the ases, (hich (e have discussed in the class, at appropriate places