Vicarious liability is a secondary, strict liability in the agency-respondent
TORT
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Institution
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Introduction
Vicarious liability is a secondary, strict liability in the agency-respondent superior doctrine in common law and can be justified (Best & Barnes, 2007). It imposes a liability for injury caused to the plaintiff to a third party. A person is assigned legal liability for acts and omission of another person where there exists a legal relationship between the two parties. The third party has the duty, right and ability to control the actions of the violator when the tort is committed. The relationships include husband-wife, employer-employee, driver-vehicle owner and parent-child relationships (Best & Barnes, 2007). Most cases on vicarious liability relate to employer-employee relationships where the employer is held liable for the negligence of his employee to people whom the employer owes a duty of care. However, the liability does not apply in the case of independent contractors (Horsey & Rackley, 2014). Independent contractors are distinguished from employees by considering whether the tortfeasor owns equipments necessary to dispense his work, whether the employer has complete control over the tortfeasor at work and whether the tortfeasor has managerial responsibilities. Independent contractors also have the ability to hire subordinates and do not receive a salary, but rather receive a payment for work performed (Horsey & Rackley, 2014).
The elements required to prove vicarious liability are that a tort perpetrated, a relationship must exist between the primary tortfeasor and the person held to be liable (Pennings, Konijn & Veldman, 2008). The commission of a tort must occur during the course of the primary engagement of the tortfeasor by the person to be held vicariously liable. In the case of employment contracts, the employer is held liable because the employee is held to be acting as an agent to his boss. The principle applied is that of respondent superior or let the master answer (Best & Barnes, 2007).
Justification
Vicarious liability is justified both legally and ethically (Lunney & Oliphant, 2008). First, under the rule of efficient loss distribution, the employer can spread the losses incurred in compensating the plaintiff to the society in the form of insurance claims and increasing price of their commodities (Best & Barnes, 2007). Insurance companies can in turn spread the loss to the society by charging premiums to a large number of people. Moreover, the loss is recovered over a long period of time from the profits made on goods and services rendered by the employer. Therefore, unlike the employee, the employer does not pay the costs from their own pocket since in most cases the employers are body corporate (Lunney & Oliphant, 2008). The law, under efficient and fair compensation, allows the plaintiff to receive compensation from a person who has the financial capability to satisfy the claims. The plaintiff therefore stands to benefit most when the employer is held culpable because he has deeper pockets than the person working for them (Lanham, 2006).
Second, the employer gains economic benefits from the activities of his employee and it would be fair for them to incur the losses arising from such activities. The benefits and losses of the enterprise should rest with one person and the master or employer has to carry the burdens arising from the conduct of their servants (Best & Barnes, 2007). Third, the doctrine is applied as deterrence to the commission of tort. Given that the employer or parent will be held liable for offences committed by persons under their direct responsibility or supervision there is an incentive to encourage them to act responsibly and to punish those that engage in wrongful acts. The number of torts committed is likely to reduce significantly by imposing a financial interest on the employer to prevent the accident (Faure, 2009). Fourth, the employer is the most suited person to pass on the liability to the society in the form of prices increase on their commodities and by making insurance claims. The employer or master is in the best position to assess the magnitude of liabilities arising from the conduct of business for which the servant/ employee is engaged.
Master- servant
A master who commits a tort is held liable. In law, a person who performs an act through another person is assumed to have performed it himself. Therefore, a master is held liable for torts committed by his servants or employees because he has control over the action of the servant (Best & Barnes, 2007). Moreover, he selects and trusts the employee to perform the duties on his behalf and sets the entire enterprise in motion and should be held responsible for any outcomes. The employer is also liable torts arising from the action of the employer out of employment if the function being performed is non delegable (Lanham, 2006).
The control test is used to determine the existence of a relationship as outlined in Mitchell and Booker case (Faure, 2009). An employee is considered to be under direct command of the master and subject to the hire or fire rule (Best & Barnes, 2007). Therefore, employers were not held vicariously liable for torts committed by their professional employee such as doctors and accountants. The Cassidy case of holding the hospital liable for negligence of doctors working under them and set a precedent. The control test was found to be inadequate to exclusively determine who is an employee.
The test to the nature of employment requires that person under an employment contract be regarded as employed while those under contract for services be regarded as independent contractors (Card, Cross & Jones, 2014). The employer is only vicariously liable for torts committed by their employees. The principal is not vicariously liable for torts of his independent contractor since the principal has no control over work done, the contractor is best suited to prevent or spread risks arising from the enterprise. He also stands to make profit from good decisions made in their work and should be liable for the acts or omissions (Faure, 2009). These justifies imposing the vicarious liability on the independent contractor. However the employer is liable for torts of independent contractor performing a non delegable duty (Best & Barnes, 2007). Hospitals and schools have a non delegable duty to their patients and pupils respectively since they are considered vulnerable population and the principal has committed.
Principals can be held liable for wrongful action of their independent contractors if they ratify such action. Consequently, they become joint tortfeasor along with the independent contractor. In cases of strict liability, the employer is held liable if there is a breach of a statutory duty by the contractor in performing hazardous work (Card, Cross & Jones, 2014).
Car owners
The owner of a motor vehicle is held vicariously liable for accidents caused by other people driving the vehicle, including his child, driver or a person who has hired the vehicle (Card, Cross & Jones, 2014). However, where the owner has entrusted the custody thereof to a car repair workshop, the owner of the workshop is deemed to be an independent contractor and legally liable. Similarly, the owner of domestic or wild animals is vicariously liable for harm caused by the animals since the animals lack conscience (Best & Barnes, 2007).
Conclusion
Vicarious liability has legal and ethical justification. A person who receives benefits from an enterprise should accept the burdens arising from the same. The master is usually better economically placed to compensate the plaintiff and to recover such costs from insurance claims or increasing the prices of their commodities or services. Finally, imposing vicarious liability acts as a deterrence to accidents in the society (Pennings, Konijn & Veldman, 2008). Vicarious liability applies to cases of employer-employee and vehicle owner-drive amongst other, but the such relationship should be distinguished from independent contractors.
References
Best, A., & Barnes, D. (2007). Basic tort law. New York, NY: Aspen Publishers.
Card, R., Cross, R., & Jones, P. (2014). Card, Cross and Jones criminal law. Oxford: Oxford University Press.
Faure, M. (2009). Tort law and economics. Cheltenham, UK: Edward Elgar.
Horsey, K., & Rackley, E. (2014). Tort law.
Lanham, D. (2006). Criminal laws in Australia. Annandale, N.S.W.: The Federation Press.
Lunney, M., & Oliphant, K. (2008). Tort law. Oxford: Oxford University Press.
Pennings, F., Konijn, Y., & Veldman, A. (2008). Social responsibility in labour relations. Austin: Wolters Kluwer Law & Business.