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Criticisms Section is badly written
This whole section is horribly written. 'I' and 'we' don't belong in an ecyclopedia entry. And I'm not sufficiently versed in legalise to even try rewriting this. Instead of outright deleting it, could someone better edumacated take a stab at rewriting it?Kairos (talk) 00:53, 27 November 2008 (UTC)
Misspelled version of this page created - likely to be speedily deleted. Text copied here in case it's any use to anyone in editing this article.
- Vacarious liability refers to who the blame for a breach of duty of care falls upon, an example of this would be, whether an employer is obliged to take responsiblities for their employees negligence. If the action was done within the scope of the employees employment then the employer would be obliged to assume responsibility and pay compensation for the damages, however if the employee acted outside the scope of his/her employment then they would be held accountable for there negligence actions. Eg, if a student trips over a cleaner whilst he/her was cleaning then the student would sue education QLD (employer) rather then the cleaner, however if the cleaner should get frustrated with a student (who is a constant litterbug) and hits the student then they would be responsible for their negligence as it was not in the scope of their employment.
The "however" below (whereas my reading suggests "likewise"), together with the other words I emphasize, seems to indicate the paragraph might accidentally reverse the sense in one ore more sentences:
An employer will not be held liable if it is shown that the employee had gone on a "frolic and detour", wherein the employee was acting in his or her own right rather than on the employer's business. Neither, generally, will an employer be held liable for assault or battery committed by employees, unless the use of force was part of their employment (e.g. police officers, nightclub bouncers), or they were in a field likely to create friction with persons they encountered (e.g. car re-possessors). However, the employer of an independent contractor is not held vicariously liable for the tortious acts of the contractor, except where the contractor injures someone to whom the employer owes a non-delegable duty of care, such as where the employer is a school authority and the injured party a pupil.
Shouldn't that read:
- likewise, the employer of an independent contractor is not held liable.
- however, the employer of an independent contractor is held liable.
- I think the point the author was trying to make is that an employer can be liable for intentional torts of an employee whose job involves use of force (i.e. a bouncer), but can not be held liable for the intentional torts of an independent contractor whose job involves use of force, unless the independent contractor injured someone the employer had a duty to protect. Certainly, the law places less liability on an employer for the acts of an independent contractor. bd2412 T 00:32, 28 August 2006 (UTC)
Response to Flipped Sense
The quoted paragraph's arguments are these:
1. Vicarious liability applies to employer-employee relationships all the time except in very limited circumstances - frolic and detour, assault.
2. However, the limited circumstance of assault will not prevent vicarious liability in limited circumstances - part of employment etc.
3. So, the general rule re employer-employee relationships is that vicarious liability applies to virtually all situations and even the exceptions to those situations are themselves limited.
4. However and in contrast to the employer-employee situation, vicarious liability does not generally apply to contractors but, of course, there are some exceptions.
Recent developments in vicarious liability
Page probably needs updating in light of recent developments in English common law. In particular, the House of Lords case Lister v Hesley Hall  appears to have done away with the authorised/unauthorised test, and endorsed a 'degree of connection' test instead...
VICARIOUS LIABILITY AND STATUTORY OBLIGATIONS Essay
An anonymous editor posted the following material. While insightful, it does not conform to the Wikipedia:Neutral point of view policy, and frequently uses styles such as first-person that are avoided in Wikipedia. We may be able to extract useful and nonredundant content from it, so I'm putting it here. Deco 00:48, 30 January 2007 (UTC)
VICARIOUS LIABILITY AND STATUTORY OBLIGATIONS
Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. The time-honoured phrase is 'while acting in the course of his employment'. It is thus a form of secondary liability. The primary liability is that of the employee who committed the wrong. (To a limited extent vicarious liability may also exist outside the employment relationship, for instance, in some cases of agency.)
This principle of vicarious liability is at odds with the general approach of the common law. Normally common law wrongs, or torts, comprise particular types of conduct regarded by the common law as blameworthy. In respect of these wrongs the common law imposes liability on the wrongdoer himself. The general approach is that a person is liable only for his own acts.
Whatever its historical origin, this common law principle of strict liability for another person's wrongs finds its rationale today in a combination of policy factors. They are summarised in Professor Fleming's Law of Torts, 9th edition, (1998) pages 409-410. Stated shortly, these factors are that all forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. This is 'fair', because it means injured persons can look for recompense to a source better placed financially than individual wrongdoing employees. It means also that the financial loss arising from the wrongs can be spread more widely, by liability insurance and higher prices. In addition, and importantly, imposing strict liability on employers encourages them to maintain standards of 'good practice' by their employees. For these reasons employers are to be held liable for wrongs committed by their employees in the course of their employment.
With these policy considerations in mind, it is difficult to see a coherent basis for confining the common law principle of vicarious liability to common law wrongs. The rationale underlying the principle holds good for equitable wrongs. The rationale also holds good for a wrong comprising a breach of a statutory duty or prohibition which gives rise to civil liability, provided always the statute does not expressly or impliedly indicate otherwise. A precondition of vicarious liability is that the wrong must be committed by an employee in the course of his employment. A wrong is committed in the course of employment only if the conduct is so closely connected with acts the employee is authorised to do that, for the purposes of the liability of the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment: see Lister v Hesley Hall Ltd  1 AC 215, 245, para 69, per Lord Millett, and Dubai Aluminium Co Ltd v Salaam  UKHL 48,  2 AC 366, 377, para 23. If this prerequisite is satisfied the policy reasons underlying the common law principle are as much applicable to equitable wrongs and breaches of statutory obligations as they are to common law torts.
This approach accords with the trend of judicial decisions and observations and also academic writings. In Dubai Aluminium Co Ltd v Salaam  UKHL 48,  2 AC 366, the House of Lords in the United Kingdom applied the principle of vicarious liability to an equitable wrong. In the shot-firing case of Harrison v National Coal Board  AC 639, 671, Lord MacDermott observed:
Vicarious liability is not confined to common law negligence. It arises from the servant's tortious act in the scope of his employment and there can now be no doubt that [the employee] breaking the shot-firing regulations committed a tort.
In the following year Lord Guthrie, sitting in the Court of Session, followed this observation when deciding the shot-firing case of Nicol v National Coal Board (1952) 102 LJ 357. In the further shot-firing case of National Coal Board v England  AC 403, 422, Lord Oaksey expressed approval of Lord Guthrie's decision:
Unless there is something in the statute which creates the obligation indicating that no action shall be brought at common law in respect of its breach, the ordinary rules of the common law of tort are applicable, including the doctrine respondeat superior.
In Canada Craig JA expressed a similar view in the British Columbia Court of Appeal in Re Nelson and Byron Price & Associates Ltd (1981) 122 DLR (3d) 340, 347. So did Professor Atiyah in his well-known book Vicarious Liability in the Law of Torts (1967), at pages 280-284. Like opinions are expressed in Fleming, Law of Torts, 9th ed, (1998), page 567, and Clerk and Lindsell on Torts, 18th edition, (2000), para 5-47, and see also 19th edition (2006) para 6-51.
The sole reported exception to this trend appears to be the decision of the High Court of Australia in Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36. In that case a regulation, regulation 31, prescribed precautions which should be observed before loading or unloading a ship. In default a penalty was imposed on the person in charge. The High Court held the employer of the person in charge was not liable for the latter's breach of the regulations.
The principle of vicarious liability imposes upon an employer liability for his employee's acts, not his wrongs. Vicarious liability exists not because the employee is liable but because of what the employee has done. Regulation 31 imposed no duty on the employer. The duty was imposed solely on the person in charge.
In times past this 'employer's tort' analysis of vicarious liability had respectable support in England. But since then, successive Law Lords at the House of Lords in the United Kingdom has firmly discarded this basis in favour of the 'employee's tort' approach. An employer's liability is not confined to responsibility for acts done by an employee in the course of his employment. An employer's liability goes further. He is liable for the wrongs of his employee committed in the course of employment. Reasons of policy so dictate. The employee's wrong is imputed to the employer: see Staveley Iron and Chemical Co Ltd v Jones  AC 627 and Imperial Chemical Industries Ltd v Shatwell  AC 656. This approach has received wide academic support: Fleming Law of Torts, 9th ed, (1998), page 412, Clerk and Lindsell on Torts, 19th edition (2006) para 6-50, Markesinis and Deakin's Tort Law, 5th edition, (2003), page 582, Salmond and Heuston, Law of Torts, 21st edition, (1996), pages 431-433, and Munkman on Employer's Liability, 13th edition, (2001), page 114. In the United Kingdom this approach is now settled law. It seems likely this is also the law in Australia: see Hollis v Vabu Pty Ltd (2001) 207 CLR 21, para 34-35.
As I see it, the matter of most concern to modern day employers is the prospect of abuse in cases of alleged workplace harassment. Employers fear the prospect of a multiplicity of unfounded, speculative claims if they are vicariously liable for employees' harassment. Disgruntled employees or ex-employees, perhaps suffering from stress at work unrelated to harassment, perhaps bitter at being dismissed, will all too readily advance unmeritorious claims for compensation for harassment. Internal grievance procedures will not always satisfy an employee who is nursing a grievance. Although awards of damages for anxiety under the 1997 Act will normally be modest, a claimant may well pursue his present or erstwhile employer, not the alleged wrongdoer himself. The claim may be put forward for the first time years after the alleged harassment is said to have occurred. The alleged perpetrator may no longer be with the employer and may not be traceable. This is a real and understandable concern. But these difficulties, and the prospect of abuse, are not sufficient reasons for excluding vicarious liability.
In short, vicarious liability does not depend upon an employer having done anything wrong or even having broken any legal duty imposed upon him/it. It merely requires that an enterprise pay for damage done by its employees through a form of harassment, tort and/or misconduct in the course of their employment. A concept which now has a very broad meaning, and certainly embraces conduct which an employer is ought to actively try to deter and could have done nothing more to prevent.
Contribution by Sebastian Kornhauser into the analysis and interpretation of the Law of Tort from research in relation to 'Vicarious Liability and Statutory Obligations' - January 2007
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