Doctrine of vicarious liability

The doctrine of vicarious liability generally operates within the law of torts. It has become
well-established in English law and historically has been called Master and Servant liability,
which clearly indicates the circumstances in which the doctrine becomes applicable in tort law.
The general rule in tort law is that a person who authorises a tort will personally be liable for
damage or harm as a result. However, vicarious liability defines the circumstances in which a
person is liable for the torts of another without express authorisation or ratification. The most
common example of vicarious liability is the liability of an employer for the torts of his
employees committed in the course of employment. It is not necessary in such circumstances for
the employer to have breached any duty that was owed to the injured party, and therefore it
operates as strict or no-fault liability. It is possible that the injured party could be either an
employee or a stranger, and the employer can be held vicariously liable in both situations. The
most important element to establishing a case for vicarious liability is that the wrongdoer be
acting as a servant or employee, and that the wrong done be connected to the employee's course
of employment. Vicarious liability can only be imposed if it is proved that the employee was
acting in the course of employment. This criteria is essential, and requires a clear connection
between the employment duties and the employee's acts complained of. As such, most
employer's will be insured in order to avoid such liability. In addition, in order to establish
vicarious liability, it is necessary to show that an employee was employed under a contract of
service, or in the case of an independent contractor, a contract for services. English law has also
established that an employer can be held vicariously liable for a breach of statutory duty by an
employee, for example in circumstances such harassment or bullying within the workplace.

Vicarious liability in the course of employment

For an employer to be held liable, the wrong must be committed within the course of
employment. This criteria is a question of fact, and it is immaterial whether the wrong
committed by the employee was authorised or not. An employer will only avoid liability in this
situation if it can be shown that an employee acted on a frolic of his own, or in other words, if
the employee acted in a way that was unconnected with his employment. Recently, the courts
have been willing to impose liability in far-reaching circumstances on the issue of whether the
wrong was committed in the course of employment. Important in this context is the case of
Lister v. Hesley Hall Ltd. This case establishes that an employer cannot avoid liability by
showing that an employee engaged in an intentional and unauthorised wrongdoing. Thus, the
important factor in establishing vicarious liability is the connection with the course of
employment. However, it is important to note that an employer cannot avoid liability if an
employee acts in a way that could be described as incidental to his employment and the duties
to which he is entrusted with. Therefore, in establishing whether vicarious liability exists, the
question to be asked is firstly, whether the act complained of was committed in the course of
employment and secondly, whether the act is reasonably incidental to the employee's
employment duties. If there is a connection, it is irrelevant whether the employee's act was
unauthorised.

In the wake of Lister, a more recent trend has been to impose liability upon an employer for
violent acts committed by employees. In the Court of Appeal case of Mattis v. Pollock (t/a
Flamingos Nightclub) a nightclub owner was held vicariously liable for the violent acts of an
employed doorman. The Court of Appeal applied the rationale of Lister and held that a broad
approach was required in assessing whether an individuals acts were sufficiently connected with
the duties of his employment so as to justify imposing vicarious liability.

Vicarious Liability under a statutory duty

An employer can also be held vicariously liable for an employee's breach of a statutory duty.
This duty differs to that of a common law duty in that the duty does not rise by operation of
common law principles, but by statute. As such, the statute imposes a duty on the employee
personally and makes no reference to the employer. An employer can be held liable for the
breach of a statutory duty even where the statutory duty is owed by the employee personally and
individually. This circumstance would potentially arise in the context of harassment within the
workplace, where one employee has been harassed or bullied by another- see the case of
Majrowski v. Guy's and St Thomas's NHS Trust. However, emphasis will be placed on the
intention of the legislature in creating the statute in deciding whether vicarious liability should be
imposed.

Conclusion
Where vicarious liability is imposed on an employer, both the employee and employee will be
held jointly liable. This operates to allow the employer to claim a contribution from the
employee under the Civil Liability (Contribution) Act 1978. It must be noted that in the context
of an independent contractor, an employer would be held vicariously liable where he authorised
or ratified the tort.
It is clear that vicarious liability will continue to operate significantly for an employee's acts
committed within the course of employment. However the case of Lister has expanded the
approach taken by the courts in determining the circumstances for the applicability of vicarious
liability, and has broadened the extent of the in the course of employment criteria. Although
essential, this criteria has expanded to the point of allowing claims for vicarious liability in cases
where liability would not have arguably been imposed. The extension of the liability to statutory
duty only highlights this point. In turn, the expansion of vicarious liability will have far-reaching
implications for employer's in the future.

Present scenario of vicarious liability

Does vicarious liability by government make any sense?
This essay considers a single aspect of the modern application of the vicarious-liability doctrine
of Respondeat Superior. This is the theory that the master must pay for the sins of his servant or,
in todays vernacular, the employer must pay for real or imagined wrongs committed by his
employees. More specifically, Ill analyze the application of this wealth-spreading doctrine when
the employer is a governmental entity.
A policeman chasing an armed robber fires and misses his intended target, killing a ten-year-old
boy on his way to school. The bereft parents sue the city for their sons wrongful death. A
morally challenged supervisor of the county deed records terminates an attractive young female
trainee when she rejects his inappropriate advances. The young lady sues the county, alleging
harassment and unlawful termination. A school district fails to meet national measures mandated
by the federal government. A lifetime federal judicial appointee fines the district for its misdeed.
In the immortal words of humorist Dave Barry, I am not making this up. Actions resembling
instances like these occur daily, pervasively, and repeatedly in these litigious United States. In
many instances, the lawsuit does not even name the human being who caused the harm; if the
peace officer, the supervisor, and the school administrator are named as parties, they customarily
play a nominal role and the city, the county, the state, or the district pays the cost of their legal
defense and also reimburses or indemnifies them for any personal judgment against them.
Who really pays the costs of defense, the judgments, the fines, and all other system-assessed
charges? Uncle Pungle pays and pays and pays. No government creates anything but chaos; no
government produces goods, services, or ideas in a marketplace consisting of willing producers
and purchasers. In actions against governments and their employees, the entity spends money
and incurs expenses and liabilities, but it is the unwilling taxpayer who bears the burden of the
ultimate discharge of all costs, claims, and judgments. In most instances, the individual human
being causing the resulting putative harm pays nothing at all.
Deviation from the fundamental tenets of the Anglo-American common law ordinarily causes
unintended outcomes inconsistent with classical liberty. Application of the current notions of
governmental vicarious liability demonstrates the effect of such deviations. No one should
consider this paper an unlimited endorsement of the common law as anything resembling a
perfect jurisprudential system: creation of a perfect rule of law requires ordination by someone or
something greater than frail and fallible human beings. Nonetheless, one can make the case that
the elemental English common law, in theory, most nearly approached the grand norm, the finest
legal system created by mankind. Certainly in its basic construction and early development, the

common law endorsed personal responsibility and nourished individual freedom in an opentextured jurisprudential system until the Instrumentalists denigrated these solemn values.
Solving Disputes

The common law solved interpersonal disputes, disagreements that the parties could not resolve
privately, by employing deterrence and ordering restitution. It recognized and nurtured individual
responsibility by wise application of these seminal concepts. Deterrence simply means action
prohibiting, constraining, or channeling human conduct. Restitution refers to restoring that which
has been lost or taken away. If an individual carelessly injured a neighbors person or damaged
his property, the law required the errant actor to make the victim whole by restoring him as
nearly as possible to his condition before the intrusion. Thus, for example, if a man trespassed on
a landowners property and took his crop, the law ordered restitution requiring the trespasser to
return the property and to pay the money value of the lost crop and the lost use of the land. In
similar fashion, if a man promised to sell his crop to his neighbor for a certain amount of money
and failed to keep that promise, the law could order the landowner to restore his neighbor to the
benefit of their bargain, either by compelling him to keep his contract and deliver the crop or, if
that were not possible or feasible, to pay the value of the crop to the neighbor. The juridical
actions in these simple examples deterred the trespasser and the promise-breaker by
demonstrating that private property and solemn contracts were special and sacred, and that the
law common to the community would not tolerate these or future breaches.
Hence, in our initial modern examples, assuming a judge or jury determined culpability, the
common law would deter the fleeing felon or careless cop by requiring him to pay the value of
the schoolboys life to the mourning parents as restitution. Likewise, the common law would
compel the lecherous supervisor and the failing teachers to reimburse those who suffered harm at
their hands and, by ordering such restitution, deter future similar conduct.
Effective enhancement of personal responsibility by deterrence and restitution requires that an
erring actor suffer real consequences. If the law shields him from the results of his malevolent or
foolish behavior, he will neither learn not to repeat his mistake nor be induced to avoid the same
or similar misconduct. To repeat: in almost every instance of governmental-entity liability, the
harm-causing individual pays neither defense costs nor restitution and restoration expenses.
More to the point, the errant actor incurs no adverse consequences of any significance
whatsoever. Even in the most patent instances, government employees are placed on paid
administrative leave and imbued with a sense of entitlement and victimization far removed from
notions of responsibility.
Those who concocted Respondeat Superior theorized that the master controlled his servants, that
a businessman who hired employees directed them what to do and how to do it. Hence, the
doctrine presumed that a vigilant employer would always hire careful and kind employees; that

he would train and oversee their workplace activity to ensure quality and safety; and that he
would discipline or terminate any dangerous or incompetent soul in his employ.
Thus even in its inception, vicarious liability deviated from the common-law tradition. After all,
the ancient Saxon Witan imposed strict responsibility on the actor, and his family, for intentional
and careless behavior harming another; it even enforced strict liability on inanimate objects
occasioning human damage. Respondeat Superior made sense in the nineteenth century only
when the master or employer in fact controlled and directed the servant or worker, and not when
the latter departed from standing orders and made a mess on his own. The doctrine as conceived
and expanded amounted to an anti-capitalistic riposte to the real or feigned excesses of the
dawning industrial age.
Today the existence of all forms of vicarious liability in all work-related domains makes no sense
both as a theory and as applied in the context of the present. Few owners or managers direct and
control the daily activities of their workers, even in the smallest aggregate. While labor-union
membership wanes in the rust belt, union power thrives in the government sector, where firemen,
policemen, teachers, and office workers wield political power and jealously protect their
members from employment sanctions. Hence public-employee unions often supplant the owner
or manager, effectively controlling workers while avoiding liability. Further, owners and
employers both public and private endure increasing legal constraints on their ability to hire and
fire, promote, or discipline under rules enforcing diversity, tolerance, and other egalitarian
notions. Chastisement, discipline, and discharge become difficult if not impossible in the modern
workplace. In such a cauldron, application of fault-based responsibility and restitution on the
erring actor becomes well-nigh impossible.
If Respondeat Superior seems out of place in the private market, it becomes even more unreal in
the ever-growing government-employment sector. In addition to union command and lifetime
job-security features, government workers receive greater insulation from the consequences of
their choices. First, public entities are armed with the power of conceded force, and the
government worker exercises that force. Power begets dreams of elitism and favoritism, as well
as senses of entitlement and omnipotence. Few government workers recognize, or concede, that
they acted carelessly or improperly, and if they do see fault they tend to use the greater public
good alibi as absolution. The law imposes no personal responsibility on the government actor,
and he normally accepts none.
Second, one might argue that deterrence, restitution, and restoration in the government sector
control and direct the public entity in place of the individual actor. Nonsense. Here the
public-private dichotomy differentiates the issue. One could contend that imposition of
liability on a private business for the misbehavior of its workers induces the business to more
carefully hire, train, and oversee the workforce, and that it will lose market share if it does not

channel its conduct in such a fashion. A government entity, by definition, is not subject to this
market force: it does not operate in a market and it does brook any competition.
More from the Taxpayers

Further, one might urge that requiring a private owner to pay damages to an injured patron will
deter future undesirable conduct; an uninsured loss will directly affect the financial success of an
enterprise, and an insured loss will cost higher future premiums in addition to any self-retained
liability. Again, by definition a government bureaucracy does not live in the marketplace: a
liability loss merely means more assets must be sequestered from the supporting taxpayers.
In addition, anecdotal and empirical evidence strongly suggests that judges and jurors will more
harshly judge a government employer; if true, this harshness coupled with a perception that any
award comes from free money, translates into larger compensatory and punitive damage
judgments. After all, it seems easier to punish a faceless artificial entity than to assess damages
against an individual human being, and the law of human action that one is less careful with
anothers property than with ones personal assets seriously compounds the excess of resulting
judgments.
Enormous judgments thereby effectively transfer income and assets in unrealistic and windfall
amounts from the productive taxpayer to the recipient, notwithstanding the merits of his case.
The size of awards for contract violations and relatively minor personal injuries should never
cloud the seminal issue, the survival of the essential character of our legal system. The traditional
formal attribute of the Anglo-American system of justice lies in its fair resolution of disputes
under a rule of law common for all persons within a clearly defined and strictly limited
jurisdiction. The seminal foundational theory of personal legal responsibility undergirding the
common law has served us well for more than one thousand years. Erosion of that theory based
on bad values and poor insight signals that the end to a worthy system may reside nearby in a
future quite different from our legal landscape.