Vicarious liability is a form of a
strict,
secondary liability
Secondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary li ...
that arises under the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
doctrine of
agency, ''
respondeat superior
''Respondeat superior'' (Latin: "let the master answer"; plural: ''respondeant superiores'') is a doctrine that a party is responsible for (has vicarious liability for) acts of their agents.''Criminal Law - Cases and Materials'', 7th ed. 2012, W ...
'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from
contributory liability Contributory copyright infringement is a way of imposing secondary liability for infringement of a copyright. It is a means by which a person may be held liable for copyright infringement even though he or she did not directly engage in the infringi ...
, another form of secondary liability, which is rooted in the
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
theory of
enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.
Employers' liability
Employer
Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any othe ...
s are
vicariously liable, under the ''
respondeat superior
''Respondeat superior'' (Latin: "let the master answer"; plural: ''respondeant superiores'') is a doctrine that a party is responsible for (has vicarious liability for) acts of their agents.''Criminal Law - Cases and Materials'', 7th ed. 2012, W ...
'' doctrine, for negligent acts or omissions by their employees in the course of
employment
Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any othe ...
(sometimes referred to as 'scope and course of employment'). To determine whether the employer is liable, the difference between an independent contractor and an employee is to be drawn. In order to be vicariously liable, there must be a requisite relationship between the defendant and the tortfeasor, which could be examined by three tests: Control test, Organisation test, and Sufficient relationship test. An employer may be held liable under principles of vicarious liability if an employee does an authorized act in an unauthorized way.
Employers may also be
liable
In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencie ...
under the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
principle represented in the Latin phrase, ''qui facit per alium facit per se'' (one who acts through another acts in one's own interests). That is a parallel concept to vicarious liability and strict liability, in which one person is held liable in
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
or
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
for the acts or omissions of another.
In Australia, the 'sufficient relationship' test, entailing the balancing of several factors such as skill levels required in the job, pay schemes, and degree of control granted to the worker, has been the favoured approach. For an act to be considered within the course of employment, it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it.
Courts sometimes distinguish between an employee's "detour" vs. "a frolic of their own". For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, such as stopping to buy a beverage or use an
automated teller machine
An automated teller machine (ATM) or cash machine (in British English) is an electronic telecommunications device that enables customers of financial institutions to perform financial transactions, such as cash withdrawals, deposits, fun ...
while running a work-related errand, whereas an employee acting in their own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability.
Principals' liability
The owner of an automobile can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver their agent, ''if'' the driver is using the car primarily for the purpose of performing a task for the owner. Courts have been reluctant to extend this liability to the owners of other kinds of chattel. For example, the owner of a plane will not be vicariously liable for the actions of a pilot to whom he or she has lent it to perform the owner's purpose. In the United States, vicarious liability for automobiles has since been abolished with respect to car leasing and rental in all 50 states.
One example is in the case of a bank, finance company or other
lienholder
A lien ( or ) is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the ''lienee'' and the pers ...
performing a
repossession of an automobile from the
registered owner for non-payment, the lienholder has a non-delegable duty not to cause a breach of the peace in performing the repossession, or it will be liable for damages even if the repossession is performed by an agent. This requirement means that whether a repossession is performed by the lienholder or by an agent, the repossessor must not cause a breach of the peace or the lienholder will be held responsible.
This requirement not to breach the peace is held upon the lienholder even if the breach is caused by, say, the debtor's objecting to the repossession or resisting the repossession. In the court case of ''MBank El Paso v. Sanchez'',
836 S.W.2d 151, where a hired repossessor towed away a car even after the registered owner locked herself in it, the court decided that this was an unlawful breach of the peace and declared the repossession invalid. The debtor was also awarded $1,200,000 in damages from the bank. However, notably, a breach of the peace will invariably constitute a criminal misdemeanor. Criminal law imparts separate and distinct liability upon each actor considered a person under the law, and therefore a corporation and the corporation's employee may both be charged with having committed exactly the same crime, in addition to any civil liability for which the law imposes.
Parental liability
In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, the question of
parental responsibility generally follows the common law principle that a parent is not civilly liable for injuries resulting from a child's negligence merely because of the parent-child relationship.
When a child causes an injury, parents may be held liable for their own negligent acts, such as failure to properly supervise a child, or failure to keep a dangerous instrument such as a
handgun
A handgun is a short- barrelled gun, typically a firearm, that is designed to be usable with only one hand. It is distinguished from a long gun (i.e. rifle, shotgun or machine gun, etc.), which needs to be held by both hands and also braced ...
outside the reach of their children. Many states have also passed laws that impose some liability on parents for the intentional wrongful acts committed by their minor children.
Liability of corporations in tort
In
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, a
corporation
A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and r ...
can only act through its employees and agents so it is necessary to decide in which circumstances the law of agency or vicarious liability will apply to hold the corporation liable in tort for the
fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compens ...
s of its directors or senior officers.
If liability for the particular tort requires a state of mind, then to be liable, the director or senior officer must have that state of mind and it must be attributed to the company. In ''Meridian Global Funds Management Asia Limited v. Securities Commission''
995
Year 995 ( CMXCV) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* 17 May - Fujiwara no Michitaka (imperial regent) dies.
* 3 June: Fujiwara no Michikane gain ...
2 AC 500, two employees of the company, acting within the scope of their authority but unknown to the directors, used company funds to acquire some shares. The question was whether the company knew, or ought to have known, that it had acquired those shares.
The
Privy Council
A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
held that it did. Whether by virtue of their actual or ostensible authority as agents acting within their authority (see ''Lloyd v Grace, Smith & Co.''
912AC 716) or as employees acting in the course of their employment (see ''Armagas Limited v Mundogas S.A.''
986
Year 986 ( CMLXXXVI) was a common year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* August 17 – Battle of the Gates of Trajan: Emperor Basil II leads a Byz ...
1 AC 717), their acts and omissions and their knowledge could be attributed to the company, and this could give rise to liability as joint tortfeasors where the directors have assumed responsibility on their own behalf and not just on behalf of the company.
So if a director or officer is expressly authorised to make representations of a particular class on behalf of the company, and fraudulently makes a representation of that class to a third party causing loss, the company will be liable even though the particular representation was an improper way of doing what he was authorised to do. The extent of authority is a question of fact and is significantly more than the fact of an employment which gave the employee the opportunity to carry out the fraud.
In ''
Panorama Developments (Guildford) Limited v Fidelis Furnishing Fabrics Limited''
971
Year 971 ( CMLXXI) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Battle of Dorostolon: A Byzantine expeditionary army (possibly 30–40,000 men) ...
2 QB 711, a company secretary fraudulently hired cars for his own use without the knowledge of the managing director. A company secretary routinely enters into contracts in the company's name and has administrative responsibilities that would give apparent authority to hire cars. Hence, the company was liable.
Employees' continued liability and indemnity
A common misconception involves the liability of the employee for tortious acts committed within the scope and authority of their employment. Although the employer is liable under respondeat superior for the employee's conduct, the employee, too, remains jointly liable for the harm caused. As the American Law Institute's
Restatement of the Law of Agency, Third The Restatement of the Law of Agency (3rd edn, 2006) is a set of principles issued by the American Law Institute, intended to clarify the prevailing opinion on how the law of agency stands in 2006.
Definition of agency
para 1.01, "Agency is the fid ...
§ 7.01 states,
Every American state follows this same rule.
The question of indemnification arises when either solely the employee or solely the employer is sued. If only the employee is sued, then that employee may seek indemnification from the employer if the conduct was within the course and scope of their employment. If only the employer is sued, then the employer can attempt to avoid liability by claiming the employee's conduct was outside of the scope of the employee's authority, but the employer generally cannot sue the employee to recover indemnification for the employee's torts. For an example of a court confirming an employer's right to sue an employee for indemnification, see the case of ''
Lister v Romford Ice and Cold Storage Co Ltd
is an important English tort law, contract law and labour law, which concerns vicarious liability and an ostensible duty of an employee to compensate the employer for torts he commits in the course of employment.
Facts
Martin Lister and his fat ...
.
Ecclesiastical corporations
In the 2003 decision
Doe v. Bennett
''Doe v Bennett'', 2004 SCC 17 is a legal ruling by the Supreme Court of Canada which upheld the lower court's decision that the ecclesiastical corporation, Roman Catholic Diocese of Corner Brook and Labrador, Roman Catholic Episcopal Corporation ...
, the Supreme Court of Canada ruled that in cases of abuse scandals involving Catholic priests, liability derives from the power and authority over parishioners that the Church gave to its clergymen.
See also
*
Attribution (law)
Doctrines of attribution are legal doctrines by which liability is extended to a defendant who did not actually commit the criminal act.
*
Qui facit per alium facit per se
*
Superior orders
*
Peculiar Risk Doctrine
*
Vicarious liability in English law
Vicarious liability in English law is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, an employer will be held liable for any tort committed while an employee is conduct ...
Further reading
* Gray, Anthony. Vicarious Liability: Critique and Reform. United Kingdom, Bloomsbury Publishing, 2018.
* Banerjee, Angshuman. Vicarious Liability. Ethics and Social Responsibility. Germany, GRIN Verlag, 2016.
Notes
References
*
H Laski, 'Basis of Vicarious Liability' (1916) 26
Yale Law Journal
The ''Yale Law Journal'' (YLJ), known also as the ''Yale Law Review'', is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students ...
105
Department of Trade & Industry. ''Company Law Review: Attribution of Liability''(PDF)
External links
*
{{Authority control
Legal doctrines and principles
Public liability
United States labor law