Vicarious Liability

Liability imputed to one person for the actions of another, where the law contemplates that the other should be held responsible for a wrong in fact committed by someone else.


Liability of employer in respect of third parties
Generally, a person is only liable for acts committed by him or her personally. However, an employer may be liable vicariously to a third party if an employee commits a wrongful act or delict against the third party in the execution of his duties, provided certain requirements have been met.
Therefore, in establishing whether vicarious liability exists, the question to be asked is firstly, whether the act complained of was committed “in the course of employment” and secondly, whether the act is reasonably “incidental” to the employee’s employment duties.
These criteria are a question of fact, and it is immaterial whether the wrong committed by the employee was authorised or not. An employer will only avoid liability in this situation if it can be shown that an employee acted “on a frolic of his own,” or in other words, if the employee acted in a way that was unconnected with his employment.
An English judge wrote, in a case that considered the liability of a church for the sexual assault of one of its priests:
“The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for loss to third parties that result from the activity or enterprise.”
Where vicarious liability is imposed on an employer, both the employee and employee will be held jointly liable. This allows the employer to claim a contribution from the employee.

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