by Vaishnavi Adapala
WHAT IS VICARIOUS LIABILITY?
The term “vicarious liability” is made up of two words: “vicarious” and “liability.” Vicarious means feeling or experiencing something by reading or watching about someone else doing it rather than doing it yourself. Liability, on the other hand, refers to the state of being legally liable for something. As a result, vicarious liability can be described as a term that is used to enforce strict liability on someone who does not bear primary liability, i.e., someone who is not at fault. It is not a tort to be held liable for anyone else’s actions. It literally means that one person is responsible for another’s wrongdoings. The employer is responsible for his employee’s wrongdoings. And while the employee is behaving in the course of his or her job should this responsibility occur.
A party can be charged with vicarious liability in a number of circumstances. For example, an employer may be held responsible for an accident caused by an employee as a result of a delivery vehicle’s careless activity. Parents are often held vicariously accountable for their children’s negligence.
When an employer’s duty of care is violated, but the complainant is unable to determine which employee did so, vicarious liability may be created. An employer would not be exempt from responsibility if a specific person cannot be confirmed as the perpetrator of the violation. In Roe v Minister of Health, it was held that if the claimant established negligence on the part of one or more of the defendant hospital’s employees, the defendant authority was vicariously liable, even if the claimant could not prove which of the employees was negligent.
REASONS FOR VICARIOUS LIABILITY
The master has the “deepest pockets.” In certain instances, a defendant’s wealth or the fact that he has access to capital through benefits has had an unintentional impact on the formulation of legal standards.
Vicarious liability promotes injury avoidance by providing a financial incentive for an employer to allow his workers to consider the welfare of others.
Because the employer profits from his employees’ operations, he should therefore cover any expenses incurred as a result of such activities.
CONSTITUENTS OF VICARIOUS LIABILITY
- There must be a specific type of relationship.
- The wrongful act must be somehow connected to the relationship.
- The error occurred during the period of employment.
ESSENTIALS OF VICARIOUS LIABILITY
- The servant was the one who committed the wrongdoing.
- The servant committed the wrongdoing while on the employment.
PRINCIPLES OF VICARIOUS LIABILIITY
QUI FACIT PER ALIUM FACIT PER SE Any individual who permits or procures the commission of a tort by another is liable for the tort as though he had committed it himself. The doctrine is based on the principle “Qui facit per alium facit per se,” which means “he who does an act by another does it himself.” In this case, the individual who authorizes the tort is responsible not just for the tort itself, but also for its direct effects.
RESPONDEAT SUPERIOR Even if no express order or privity of the master is proven, the master is liable for any wrong done by the servant or agent during the course of the service. Let the superior/principal be liable/responsible, according to the maxim. The rule stems from the legal presumption that all acts performed by a servant in and about his master’s business are done with his master’s express or implied authority, and are therefore the master’s acts. In this age of trade and business, the injured party/innocent claimant has been granted the right to sue a financially liable defendant. As a result, the injured party would receive an adequate remedy if a superior individual was held liable.
LIABILITY ARISING OUT OF SPECIAL RELATIONSHIPS
When the person who commits the act and the person who seeks to be held responsible are connected to each other, vicarious liability may occur as:
- Master and Servant
- Master/Owner/Employer and Independent Contractor
- Principal and Agent
- Company and Directors
- Firm and Partners
- Guardian and Ward
MASTER AND SERVANT
If a servant commits a wrongdoing while on the job, the master is held responsible. Also responsible is the servant.
In Hewitt v. Bonvin, The son was given permission to use the car by his mother, who had the right to do so. The son needed the car for his own use, so he could take his two female friends home. The girls were unknown to both the father and the mother. The car was involved in an accident on the way back due to the son’s careless driving, and a friend who had accompanied the group was killed. In a case against the father, it was determined that the father was not liable for his son’s careless driving because the son was not his servant or agent at the time, nor was he driving for his father’s purposes.
MASTER/OWNER/EMPLOYER AND INDEPENDENT CONTRACTOR
In general, a master is responsible for the torts of his servants, but not for the torts of independent contractors.
Morgan v. Incorporated Central Council held that defendant was not responsible when plaintiff was injured on his property after falling from an open lift because the job was under the supervision of an independent contractor, and it was his responsibility to keep the lift secure.
The control test, the organization test, and the multiple test are the three forms of tests that will assess the relationship between the employer and the employee.
The so-called control test was the first significant test established by the courts. The first time this was done was in the case of Yewens v Noakes in the nineteenth century. In this case, the Respondent was a hops merchant who owned several houses with internal communication that he used for his company. Keppel was a clerk in the Respondent’s pay who looked after the houses and stayed in them for that matter. With his wife, a boy, and a servant, he lived in the houses. The case involved the payment of inhabited house duty, and one of the main issues was whether Keppel was the Respondent’s servant. It was decided that Keppel was not at fault in this case (and, therefore, the Respondent was liable to pay the duty). The premises were kept solely for trade purposes on appeal, and since Keppel’s role was merely that of a caretaker, the exemption asserted was permitted. A servant, it was said, is a person who is subject to his master’s command regarding the manner in which he shall perform his duties (Bramwell, LJ). The degree of control exercised by the ‘employer’ over the worker determines whether or not an individual is an employee, according to this test.
The final test, if there is to be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the individual alleged to be a servant. When applied to qualified employees whose qualifications surpassed those of their employers, this test was found to be faulty.
In the case of Walker v Crystal Palace Football Club , it was evidently appropriate to determine if Mr. Walker was under a contract of service to the club when he was injured at work due to his negligence. It was crucial to understand that he was subjected to the coach’s instruction and style of play on both the pitch and the training area. Instead, if the control test were solely applied, professional employees would be classified as independent contractors, unable to invoke the vicarious liability principle against the football club, their employer. It was crucial to understand that he was subjected to the coach’s instruction and style of play on both the pitch and the training area. Instead, if the control test were solely applied, professional employees would be classified as independent contractors, unable to invoke the vicarious liability principle against the football club, their employer.
As a result of the courts’ decision in favor of Mr. Walker and recognition that qualified and trained workers can be employees, the courts decided to create a new test that represented this shift in the workforce. It can be seen from this situation that A cannot absolve himself of B’s responsibility even though he refers to him as an independent contractor. As a result of B’s actions, A is held vicariously responsible for the damages and injuries sustained by C as a result of B’s incompetence at work.
In Stevenson, Jordan & Harrison Ltd v MacDonald and Evans, Lord Denning invented this test. Lord Denning noted in this case that “one aspect that seems to me to run through the instances is that, under a contract of service, a man is employed as part of the company and his work is done as an integral part of the business; while, under a contract for services, his work, while done for the business, is not incorporated into it but is only an accessory to it.” However, this test has been criticized because contracting out, particularly in today’s business environment, can be critical to success, and therefore the test becomes inconclusive.
THE MULTIPLE TEST
In the case of Ready Mixed Concrete (South East) Ltd v MPNI, this test was first developed. The test is based on the realization that there is no single determining factor that can differentiate between a contract of service and a contract for services rendered, since the employment relationship is much more complicated and involves a variety of issues. The distinction was critical from a tax standpoint in Ready Mixed Concrete, since if the appellants were considered employers, they would be liable to pay the employee lorry drivers’ National Insurance contributions. McKenna J started by separating the details of the case that could be classified as either work or self-employment. For the former, this meant that the Lorry was painted in the company’s colors and was intended for the company’s exclusive use. The team of drivers were also given clear instructions to follow, as well as a minimum income guarantee of £1500 per year. The lorry was purchased by the drivers with the help of a company loan, and the drivers also serviced it. While drivers may delegate their driving responsibilities, the company reserved the right to insist on a specific driver. Finally, the drivers were guaranteed a minimum payment, with additional payments dictated by the amount of concrete borrowed.
McKenna J then weighed these facts against three requirements that he believed were necessary for the contract to be classified as an employment contract. First, expertise must be given in return for a salary, second, the employer must exert some power, and third, the contract terms must be compatible with those of a service contract.
McKenna J determined that the contract was one of self-employment based on the right to delegate. This is a potentially flawed response since many supervisory or department head workers are granted delegation authority, but the key point is that the test’s fundamentals were approved.
Despite all of these studies, some types of workers continue to pose a challenge. Staff members in hospitals, for example, have wreaked havoc. Nurses, radiographers, house physicians, and assistant medical officers who work full-time in hospitals are now considered staff, as are surgeons and consultants. Borrowed workers are also a concern, as the Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd case demonstrated. Whose employee does an individual become when his employer lends him to another? While someone’s services are borrowed by another employer, he remains an employee of the general or permanent employer.
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