chapter  16
12 Pages

VICARIOUS LIABILITY

Employers are said to be ‘vicariously’ liable for the torts of their employees which are committed during the course of employment. In effect, this means that employers will be liable to third parties with whom they have usually had no direct contact in situations when they cannot be said to have any personal blame, merely because they have employed someone who has committed a tort. Several justifications have been suggested since the 19th century for the existence of the rule, which may appear to be particularly harsh as it seems to contradict the fault principle and it was originally based on the legal fiction that employers have ‘control’ over their employees and order them to do the tortious acts in question but, more recently, it has been recognised that the rule has a more pragmatic basis, which is that employers, as opposed to employees, can best afford to bear the cost of compensating injured third parties. Large companies usually insure against this type of liability, or are their own insurers. The question as to who has the benefit of insurance cover may influence the court in deciding who should be regarded as the employer (see British Telecommunications plc v James Thomson & Sons (Engineers) Ltd [1999] 1 WLR 9). A distinct advantage of vicarious liability to claimants is the fact that even if the particular individual who committed the tort is unidentifiable or cannot be traced, it will usually be possible to identify the employer, and if that employer is a corporation it will be possible to bring a claim even if the employee/tortfeasor has fled the jurisdiction to escape legal action. However, it should be noted that there are limits to vicarious liability. In general, it is confined to situations involving employers and employees and does not extend to husbands and wives or parents and children. Nor does vicarious liability cover ‘looser’ relationships. For example, in Hussain and Another v Lancaster CC [1999] 4 All ER 125 the Court of Appeal held that a council could not be liable for tenants’ torts (see Chapter 11). However, it is difficult to find consistency in the cases, and in Banks v Ablex Ltd [2005] EWCA Civ 173 it was held that in principle an employer could be vicariously liable for bullying acts of an employee, in breach of the Protection from Harassment Act 1997, though in this instance the claim failed. Particular difficulties can arise in relation to public organisations like local authorities, especially when they use specialists such as educational psychologists (see the House of Lords decision in Phelps v Hillingdon London Borough Council [1999] 1 WLR 500).