That wrongdoers should be liable for their own actions is a fundamental principle on which the law of tort is based. Critically analyze how to concept of vicarious liability might seem to contradict this principle and explain why. The law of tort is based on the principle that tortfeasor should be held liable for their own acts that caused harm to another. However, Vicarious Liability contradicts this principle, they hold another person liable for the acts that the tortfeasor has done, even though he may not even know that act has been done.
This seems to be very unfair but in reality there are a few reasons why this is necessary. For someone to be vicariously liable for the acts of another there must be a relationship between both parties- this justifies giving the latter responsibility for the acts of the former. In order to decide whether vicarious liability applies in a particular situation, the cout would have to address two questions: was the person who committed the tort an employee of the defendant and was the tort committed in the course of that person’s employment?
If this two conditions are satisfied only can another person be held jointly liable for the acts of another. In the case of Ready Mixer Concrete v Minister of Pensions, the claimants were lorry drivers who did work for the defendants manufacturing company. They use lorries which had the company’s logo, had to wear the company’s uniform and paint their lorries with its colors and logo. They were held to be small business man and not the company’s employees as they were not guaranteed any work from the employers and maintained their own lorries.
Hence, a person can only be liable for the actions committed by another if a relationship is established. To be considered an employee, there are a few criterion to satisfy. In some cases a written agreement may be established which states that the other person is Not an employee but this is by no means decisive, the courts would take into account other factors. In Ferguson v Dawson, the claimants were employees even though the written contract had expressly stated that they were independent contractors. They are thus protected by the building safety legislations.
This is justified as employers cannot evade responsibilities simply by classifying them as self-employed. Sometimes employers would choose to employ workers from agencies, they would thus not be liable for these type of workers as they are merely of a temporary nature. In most cases they would not be vicariously liable for the act of such workers, however there are instances where there can be held liable. In the case of Hawley v Luminar Leisure. Mr Warren was a bouncer at the nightclub luminar leisure when he committed battery on the claimant, causing him permanent brain damage.
As Mr Warren was an agency worker, Luminar Leisure sought to evade responsibility, however he was still held liable as Mr Warren would be recognized by the public as working for Luminar Leisure and Luminar did not have to use an agency to supply door staff, but did so as they wanted to avoid certain aspects of employment law. Hence they were vicariously liable for Warren’s actions which they themselves could nothave known about. However, casual workers would not be considered an employee and hence the employer cannot he held liable for the torts commited by them (Carmichael v National Power) One employer may lend
An employer will only be liable for the torts committed by another if it is deemed that the tort was committed in a course of the wrongdoer’s employment. This seems to justify incurring vicarious liability on the employer as this means that the employer will be liable not only where they have permitted the employee to do the wrongful act but also where the employee had not been given such permission. The Salmond on Tort test laid down where something will be classified as ‘in course of employment’ 1. It is a wrongful act authorized by the employer