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Nature and operation of vicarious liability

Broadly, by virtue of the doctrine of vicarious liability, an employer is liable for an employee’s negligent actions if they were committed in the course or scope of the employee’s employment or are closely connected with what the employee is authorised by the employer to do.

It is referred to as ‘vicarious liability’ as the actual breach of duty is that of the employee. It is often said that the employer’s liability is strict; the employer is fixed with liability without any requirement of proof that there was any breach of duty on its part.

Although the majority of cases in which vicarious liability is alleged to attach will arise from the negligent act of an employee, the doctrine is not restricted to the employer/employee relationship. To succeed in a claim against a defendant based on its vicarious liability, the claimant must satisfy the following two-stage test:

1. •

   stage one: the relationship between the defendant and the tortfeasor was one of employment or ‘akin to employment’

2. •

   stage two (the ‘close connection’ test): was the wrongful conduct so closely connected with acts that the tortfeasor