ABSTRACT
Vicarious liability arises out of the employer/employee relationship, although it can be found in the principal/agent relationship and as an exceptional case in the employer/independent contractor relationship. Vicarious liability is dependent upon this type of relationship being established, and a claimant can sue both the employer vicariously and the employee personally, although in the majority of claims it is the employer who will be pursued due to the presence of compulsory insurance. For vicarious liability to arise three criteria must be established. Firstly, it must be established that there is an employer/employee relationship. Secondly, the tort depends on the primary liability of the employee being established. Finally, the employee must have committed the tort during his or her ‘course of employment’. During the 20th century, the tort of employers’ liability was developed by the judges, who introduced the concept of ‘non-delegable’ duties.
