What is 'vicarious liability' in a personal injury claim?

Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. How does a personal injury lawyer approach this sort of claim?

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

Therefore if an employee injures someone whilst carrying out his job, the employer may be vicariously liable. i.e. the injured person may be able to win compensation directly from the employer, rather than from the employee.

For instance - vicarious liability may occur where a claimant is involved in a road traffic accident with a van being driven in the course of the driver's employment. If the van driver was at fault, then his employer may be vicariously liable for his employee's actions.

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

Companies and organisations should have Employers' Liability Insurance in place to cover the cost of any compensation paid to claimants as a result of injury in the workplace.

When insuring their businesses, employers generally assume that they will have vicarious liability for harm that employees cause in the course of their employment.

An employer may dispute vicarious liability

Claims on insurance policies may lead to an increase in premiums, which may cause employers to dispute liability for injuries caused by their employees.

Generally, disputes are on the following grounds:

  1. The employee did not harm the claimant in the course of the employee's employment.
    For example - if the van driver caused an accident after he had finished his day's work and was returning home (in the company vehicle), it may be argued that he was not acting in the course of employment, but independently.
  2. The person who caused the harm was not an employee, but an independent contractor or another non-employee worker.

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 subject to vicarious liability.

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.

What about when another employee deliberately harms another person at work?

If an employee used force against another person at work, the court may find that the harm took place outside the course of employment; therefore, the employer was not vicariously liable.

An exception to this may be where the use of force is part of the job - for example, a night-club doorman - as he is expected to act aggressively in his role; although even this may be disputed.

What happens if the employee is no longer employed by an organisation?

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

Howard Willis, Personal injury solicitor

Howard Willis, Personal injury solicitor