Last edited 12 Oct 2020

Vicarious liability

Vicarious liability is a situation in which one party is held responsible for the tort of another party (the tortfeasor).

Typically, vicarious liability arises where an employer is held liable for the actions or omissions of its officers or employees performing duties in the course of their employment. This liability is not dependent on the employer having done anything wrong themselves.

Very broadly, the tests for vicarious liability are:

Whether the employer was in control of the other party.
Whether the act or omission was closely connected with their duties.

This does not restrict vicarious liability to ‘authorised’ actions or omissions. Vicarious liability can exist if authorised actions have been carried out carelessly or wrongfully, although there becomes a point where the action is carried out in such a way that it is outside the course of their employment and they may be considered to be acting independently, in a personal capacity.

In construction, vicarious liability may arise where the employees of a contractor act in such a way in the course of performing their duties so as to cause harm to another employee, the worker of another contractor or a member of the public.

Vicarious liability may also arise where a ‘superior’ is deemed to be in control of a party even where they are not their employer, for example:

An employer might be held liable for the actions of clients or customers if they are under their control.
A contractor ‘lending’ an employee to a subcontractor may still retain effective control over them.
A subcontractor that is ‘integrated’ into a contractor organisation so that they are behaving as if they are an employee.

However, the interpretation of ‘control’ is likely to be applied narrowly in such circumstances. Control is not demonstrated by ‘supervision’, and might be difficult to establish if a subcontractor is skilled.

Employers can minimise their risk by adopting measures to ensure that those under their control perform their duties in a reasonable manner and are adequately trained.