Why is an employer vicariously liable for the torts of their employees?

business hand pushing risk assessment button on a touch screen interfaceWhere there is a failing of civil duty on the part of an employee in the course of their employment, the employer could be held liable for the employee’s wrongdoing . When considering why an employer should be vicariously liable in such a way, the relationship between Master and Servant is a founding principle. This is illustrated in the early cases of Joel v Morison and Limpus v. London General Omnibus Company . It was in the later case where Judge Wightman stated:

“A master is undoubtedly responsible for any damage occasioned by the negligence or carelessness of his servant whilst employed upon his master’s business.”

Although the Master and Servant Acts were abolished in 1875, the Common Law developed under the regime of the Acts, and the principle of Respondeat Superior, remains . Furthermore, a general duty of care, as a common law concept, was founded in Donoghue v Stevenson, the snail in the bottle case, where Lord Macmillan put forward that where a business acts for its own gain it owes such a duty of care to all those that use its products, to take such reasonable precautions so that not to endanger health by using them. It follows that all persons owe such a duty of care to those that, it would be reasonable to expect, could be affected by their actions .

In Lister v Hesley, Lord Millet made reference to the works of Fleming and Atiyah when observing that, when entering into a business for gain, an employer should be correspondingly liable for the torts of their employees where the risk of particular tortious behaviour is an inherent risk of the business conducted. Similarly, in Mattis v Pollock, where the claimant sued the owner of the nightclub where he had been stabbed by a bouncer, the Court of Appeal found that Pollock was vicariously liable for the tortious behaviour of one of his employees due to the closeness in connection between the tortuous behaviour and the duties Pollock required from him in the course of his employment. Both of these cases were referred to in Gravill v Redruth Rugby Club when, in delivering the decision of the Appeal Court, it was asserted that an employer should be liable for their employees’ torts arising from activities which carry a risk which can be reasonably regarded as part of the business being carried out.

It is important to remain cognisant that when considering the employer’s vicarious liability for their employees’ tortious behaviour, the employee will almost certainly be liable for that act in their own right. However, when seeking legal redress a plaintiff will normally seek restitution from the employer rather than the employee as they are normally better placed to deal with the matter financially, such as having specific liability insurance in place to protect their business . This point was made in 1862 by Judge Willes in Limpus v London General Omnibus Company .

In summary, an employer owes a duty of care to those with whom their business interacts and in accepting the rewards for operating a business they must correspondingly accept the risks associated with its operation. Where there is a lack of reasonable care in the operation of a business the employer should be liable, and as part of their operation this extends to the activity of their employees.  Ensuring the right policies and employee training programmes are in place can go a long way to mitigate against this area of employment risk.

Jim Taylor LLM

The opinion given in this article is for general information only and is intended to illustrate and highlight themes which may affect employers and their employees. It should not be taken as specific advice on any situation or the appropriate course of action for any particular company or employer. Should you wish to discuss a similar situation or any other matter please contact Ascent HR Limited. ©Ascent HR Limited.

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