The Vicarious Liabilitys Doctrine - Essay Example

Name Tutor Course Date Vicarious liability Introduction Vicarious liability is considered the supreme liability of a party- usually the lawful principal – for misdemeanours of another party. As such, conventional vicarious liability is regarded as a type of secondary liability that is strict, contrary to secondary liability that is inflicted on principals or parties in a standard that is duty based like negligence (Mcivor, 2011). Within the general law, the respondent superior’s legal doctrine is the major vehicle for holding principals accountable for the torts as well as other delicts of their various agents. Under such doctrine, principals are equally and severally accountable for the wrongs that are committed in the employments scope by agents whose conduct they have every legal right to direct servants of agency. Most business accountability for torts and within the United States for misdemeanours also, is vicarious liability inflicted under respondent superior or comparable doctrine. The vicarious liability’s doctrine The vicarious liability’s doctrine commonly functions in the torts’ law. It has turned out to be well-established within English law and it has been termed as Master and Servant liability historically, which obviously signifies the conditions where the doctrine turns out to be applicable in the law of torts (Giliker, 2010). Employers for instance are vicariously accountable for their employees’ torts that are committed in the course of the employment. There are a number of reasons that have actually been advanced as a validation for the vicarious liability’s imposition. These include and not limited to: 1. the master is considered to have the deepest pockets. The defendant’s wealth or the reality that he can access resources through insurance, has in a number of cases had an inert influence on legal principles’ development. 2. Accident prevention is encouraged by vicarious liability by providing an employer with a financial interest by encouraging his workers to be careful about others’ safety and 3. While the employer gets profit from his employees’ activities, he should as well bear any losses caused by those activities (Mcivor, 2011). So as to ascertain liability, some issues need to be considered. For instance, whether a tort was committed or not; whether the tortfeasor was an employee or not; and whether the employee was acting during employment when the tort occurred. Under general law, a conspiracy member is able to be held vicariously accountable for the offences of his co-conspirators in case the offences carried out by the co-conspirators were predictable and if they were carried out with the intention of promoting the conspiracy objective (Diamond and Lucia, 2008). The common rule within the law of tort is that an individual who approves a tort will individually be accountable for harm or damage as an outcome. On the other hand, vicarious liability describes the situation in which an individual is accountable for another’s torts without direct ratification or authorization. The leading example of vicarious liability is an employer’s liability for his employees’ torts carried out during employment’s course (Cousins, 2008). It is actually not necessary during such situations for the boss to have infringed any task that was obligated to the harmed party, and hence it functions as no-fault or strict liability. It is likely that the harmed party may possibly be either the boss or an unfamiliar person, and the boss is able to be held vicariously accountable in both circumstances. The most significant feature to defining a case for vicarious accountability is that the offender be acting like an employee or servant, and that the offence done be linked to the employee’s employment course. Vicarious liability can simply be inflicted once it is established that the worker was acting in employment’s course. This measure is generally important, and needs a clear link between the duties of employment and the acts of the employees complained of. As such, several employers will actually be insured so as to avoid such accountability (Diamond and Lucia, 2008). Additionally, so as to institute vicarious liability, it is imperative to indicate that a worker was hired in a contract of service, or a contract for services in an independent contractor’s case. Furthermore, English law has ascertained that a worker is able to held vicariously accountable for an infringement of statutory responsibility by a worker, for instance in situations like bullying or harassment in the place of work (Cousins, 2008). Vicarious liability during employment period In order to hold an employer liable, the offence ought to be carried out during the period of employment. This measure is a matter of fact, and generally it is irrelevant whether the offence executed by the worker was approved or not. A worker will simply avoid accountability in this circumstance in case it can be indicated that a worker acted on his own frolic, that is to say, if the worker acted in a manner that was not related to his employment. In recent times, the courts have actually been ready to inflict liability in circumstances that are far-reaching on the matter of whether the offence was carried out during the period of employment. Relevant in this circumstance is Lister v. Hesley Hall Ltd’s case. This case ascertained that a worker is not able to avoid liability through showing that a worker got involved in a wrongdoing that is unauthorised and intentional (Diamond and Lucia, 2008). Hence, the significant element in instituting vicarious liability is the relation with the period of employment. On the other hand, it is considerable to appreciate that an employer is not able to avoid liability in case a worker acts in a manner that may possibly be illustrated as incidental to his or her employment as well as the responsibilities to which he or she is delegated with. Thus, in ascertaining whether vicarious accountability is present, the arising issue is firstly, if the action complained of was carried out during the period of employment and secondly, if the deed is rationally incidental to the employment duties of the employee (Cousins, 2008). In case there is an association, it is inappropriate whether the worker’s act was not authorised. Following Lister, a latest tendency has been to inflict liability upon employers for violent actions carried out by workers. In the Court of Appeal case of Mattis v. Pollock (t/aFlamingos Nightclub) an owner of the nightclub was held vicariously accountable for the aggressive acts of a hired doorman. The Court of Appeal adopted Lister’s rationale and held that a wide technique was needed in gauging whether a person’s acts were adequately linked to the responsibilities of his or her employment in order to justify inflicting vicarious liability (English Vicarious Liability Cases, 2010). Vicarious Liability in a statutory duty It is possible that an employer can be held vicariously accountable for a worker’s infringement of a statutory responsibility. This responsibility is not similar to that of a general law duty such that the responsibility does not come up through operation of general law measures, but through statute. By itself, the statute inflicts an obligation on the worker individually and no reference is made to the employer. Employers are able to be held accountable for the infringement of a statutory obligation even where statutory obligation is owed by the worker individually and personally (Cousins, 2008). This situation would potentially originate within the harassment context in the place of work, where one worker has been bullied or harassed by another. On the other hand, emphasis shall be put on the legislature’s intention in making the statute when deciding if vicarious liability ought to be imposed. Conclusion Where vicarious accountability is inflicted on employers, both the employee and employer will jointly be held liable. This functions to permit employers to claim a payment from the worker under the Civil Liability (Contribution) Act 1978. Basically, it is evident that vicarious liability will keep on operating significantly for a worker’s acts carried out during the period of employment. On the other hand, Lister’s case has expanded the course taken by various courts in establishing the situations for the vicarious liability applicability, and has widened the degree of the criteria of the period of employment. Although crucial, this measure has increased to the extent of allowing vicarious liability’s claims in circumstances where accountability would not have questionably been inflicted. The liability’s extension to statutory duty simply emphasizes this point. Consecutively, in the future, vicarious liability’s expansion will have extensive implications for an employer. Works Cited Giliker, Paula. Vicarious Liability in Tort: A Comparative Perspective. Cambridge, UK: Cambridge University Press, 2010. Print. Mcivor, Claire. Vicarious Liability in Tort. S.l.: Hart Pub, 2011. Print. Cousins, Jeremy. Vicarious Liability: Where Does the Workplace End?Melbourne: Leo Cussen Institute, 2008. Print. Diamond, John L, and Lucia M. Diamond. Cases and Materials on Torts. St. Paul, MN: Thomson/West, 2008. Print. English Vicarious Liability Cases. S.l.: General Books, 2010. Print. Read More