How does 'vicarious liability' apply to an injury claim?

Vicarious liability is where one party is held responsible for the actions or omissions of another party. How does vicarious liability come into play when making a personal injury claim?

Injuries in the workplace

In the workplace, an employer may be held liable for the acts or omissions of its employees, providing it can be shown that the injury occurred in the course of their employment.

If an employee injures someone else whilst carrying out his job, the employer may be vicariously liable. The injured employee would then make a work injury compensation claim against the employer, rather than the employee.

An example of vicarious liability might be when a road user is involved in a road traffic accident with a van being driven by an employee in the course of his employment. If the van driver was at fault, then his employer may be held vicariously liable for the employee's actions.

If an employee failed to secure a safety device on a machine and another employee sustained an injury as a result, the employer may be vicariously liable for the employee's omission.

Employers are legally required to hold Employers' Liability Insurance which will cover the cost of any compensation paid to claimants as a result of an injury in the workplace.

Employers generally assume that they will be vicariously liable for any harm that their employees might cause in the course of their employment.

See also:

Can I claim for an injury if partly to blame for an accident?

Employers may dispute vicarious liability

A claim on an employer's EL policy could result in an increase in their future premiums. It is, therefore, not unheard of for an employer to dispute a claim based on vicarious liability.

Vicarious liability might be disputed on the following grounds:

  1. The employee did not harm the claimant in the course of their employment.
    For example, if the van driver caused an accident when returning home in the company vehicle, having finished work for the day, it may be argued that the employee was not acting in the course of their employment.
  2. The person who caused the injury was not technically employed. The injury might have been caused by an agency temp or an independent contractor, for example.

Whether a person is a contractor or an employee may be determined by a number of factors, such as the degree of control the employer has over the worker and how he is paid.

If the person who failed to secure the safety device was an independent contractor, rather than an employee, then the employer may not be vicariously liable.

An exception to this would be if the employer had failed to supervise the contractor or appointed an incompetent contractor. He may then be vicariously liable due to his negligence.

See also:

Do I have to be an employee to make a work injury claim?

What if an employee deliberately harmed another person at work?

If an employee assaulted or used force against another person at work, a court may decide that the harm took place outside the course of employment and, consequently, that the employer was not vicariously liable.

An exception to this might be where the use of force is part of the job. A nightclub doorman, for example, is expected to use controlled and proportionate force as part of the role. If another person is injured as a result of the doorman's actions, the employer may be vicariously liable.

See also:

Can I make an injury claim against a work colleague?

What happens if the employee is no longer employed?

An employer's liability does not end once the employee leaves the company or organisation. A claim may still be brought against an employer for the actions of s former employee, providing the actions took place during the employee's period of employment.

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Howard Willis, Personal injury solicitor

Howard Willis, Personal injury solicitor