LAW1113 Lecture Notes - Lecture 16: Vicarious Liability, Independent Contractor, Sexual Assault
Topic 15: Vicarious Liability
Broadly, vicarious liability is a mechanism pursuant to which one person may be
found liable for the tort committed by another.
Important features of vicarious liability:
it operates strictly.
the person who commits the tort remains liable, but the person who is
vicariously liable is liable as well – and so the plaintiff can choose who to
sue.
the relationship between the tortfeasor and the defendant must be of a
kind that can give rise to vicarious liability – eg employer / employee.
Rationale
• Employer is better placed to carry costs –enables just and practical remedy
for harm suffered;
• Deters future harm by incentivising safe practice;
• There are two innocent parties; however, the employer is less innocent than
the victim of the tort: the employer benefits from the enterprise from which
harm flows; set it in motion; has capacity to minimise risk.
Vicarious liability
• An employer will be vicariously liable for the torts committed by an
employee in certain circumstances.
• The law draws a distinction, for the purposes of vicarious liability, between
employees and independent contractors
• Employers may be vicariously liable for the acts of employees, but not for the
actions of independent contractors
Employee v independent contractors
Contract of service (employee) v Contract for services (independent
contractor)
Historical Position – a narrow control test: an employer must be in a
position not only to tell the worker what to do, but also how to do it
Today – balancing a variety of indicia to determine the character of the
worker: Hollis v Vabu
Control – the emphasis being on capacity to exercise control,
rather than actual control
Holidays and other independence over working hours
Skill level – the more skill needed tends toward IC
Identification – whether the worker is presented as an emanation
of the person paying her
The provision of equipment and how expensive it is/ its nature
Document Summary
Broadly, vicarious liability is a mechanism pursuant to which one person may be found liable for the tort committed by another. Important features of vicarious liability: sue. it operates strictly. The relationship between the tortfeasor and the defendant must be of a. Employee v independent contractors contractor) worker: hollis v vabu position not only to tell the worker what to do, but also how to do it. Contract of service (employee) v contract for services (independent. Historical position a narrow control test: an employer must be in a. Today balancing a variety of indicia to determine the character of the. Control the emphasis being on capacity to exercise control, Skill level the more skill needed tends toward ic. Identification whether the worker is presented as an emanation. The provision of equipment and how expensive it is/ its nature. Holidays and other independence over working hours rather than actual control of the person paying her.
