Vicarious Liability – When is an employer responsible for his employee’s actions?

22 Aug 2014

Accidents and injuries at work or in public places are often caused by an individual’s negligence. So how does an injured person go about bringing a claim in such circumstances?

It is often the case that the individual who caused the accident is financially unable to meet any personal injury claim themselves.  However, where the individual is an employee, then the principle of vicarious liability applies – the employer can be held liable for the accident.

There are two key points that must be established in order to pursue a claim against an employer. Firstly, it must be shown that the individual was an employee (i.e. under the control of the employer). Secondly, they must have been acting in the course of their work at the time the accident occurred.
 
Employers are not generally responsible for the actions of independent contractors, however there are exceptions to this. In particular, where there is a non-delegable duty – i.e. the employer fails to supervise the contractor properly, or where the employer fails to take sufficient steps to ensure a competent contractor is appointed.  In such cases an employer may still be found vicariously liable.

In addition it may be possible that a worker can be deemed to be a “de facto employee”. This will depend upon the facts of the case, such as whether the employer has sufficient control over the worker, or whether they provide the necessary tools or equipment to do the job. A court will examine the issues and ultimately determine whether or not the worker was essentially treated as an employee..

A further issue is that a worker must also be doing something which is so closely connected with his employment that it would be fair and just to hold the employer liable. This would of course include tasks or acts specifically authorised by the employer, but would also extend to other acts more loosely  connected with the work. For example, the Courts held that a rugby club was vicariously liable for a semi-professional rugby player punching an opponent following the final whistle due to the close connection between the act and the employment.

James Braund, solicitor at Trethowans LLP who specialises in personal injury claims, states “Claims involving vicarious liability require a detailed application of a number of multi-factorial tests. As a result it is important that anyone injured in an accident which may involve such issues seeks independent and specialist legal advice at an early stage.”