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INTRODUCTION
Vicarious liability is a legal doctrine whereby a person who is not personally at fault is legally required to bear the burden of another's tortious wrongdoing. It is, hence, a form of strict liability.
Vicarious liability is ‘on the move’ – and (sadly!), it has become more difficult to identify the criteria governing the area now than it was 50 years ago, said the Supreme Court in 2012 in Catholic Child Welfare Socy v Institute of the Brothers of the Christian Schools (Child Welfare Socy).
The word, ‘vicarious’, is derived from the Latin vicarius, ‘substitute’. This aptly describes the legal substitution of an innocent party for the wrongdoer. In that respect, the notion of vicarious liability ‘is at odds with the general approach of the common law [which is to] … impose liability on the wrongdoer himself’ (per Majrowski v Guy's and St Thomas's NHS Trust), and so ‘should not be too readily impose[d] on D’ (per Maga v Archbishop of Birmingham).
Where vicarious liability applies, the wrongdoer is not exculpated from his wrongdoing – strictly speaking, C has the option of suing the wrongdoer, or the vicariously-liable D, or both – although, from a practical point of view, the vicariously-liable D will have the ‘deeper pocket’ with which to satisfy a judgment.
The vicariously-liable employer: some general concepts
An employer may be vicariously liable for the tortious acts or omissions committed either: (1) by an employee, whose torts are committed during the course of that employee's employment, or (2) by a wrongdoer who shares with the ‘employer’ a relationship which is merely ‘akin to employment’, and whose torts are connected to that relationship. As a general rule (to which there are exceptions), an employer will not be vicariously liable for the torts of an independent contractor.
The employment scenario (or some relationship which is ‘akin to that between an employer and an employee’, as noted in Child Welfare Socy) remains the most common type of legal relationship giving rise to vicarious liability.
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