Tuesday, April 19, 2011

410. Vicarious liability & Duty of Care

Vicarious liability is a doctrine of English tort law. Employers will be held liable for the wrongdoings of their employees while the employee is conducting his duty. Intentional wrongdoings not in the course of ordinary employment were historically not the employer's liability.

But now, the employer is vicariously liable if the employee's intentional wrongdoings (e.g. deceit, fraud or sexual assault) is closely connected with the employee's duties.

EMPLOYER'S LIABILITY
Employers are vicariously liable for negligent acts or omissions by their employees in the course of EMPLOYMENT. For an act to be considered within the course of employment, it must either be authorised or be connected with an authorised act such that it can be considered a mode, though an improper mode, of performing it.

COURTS will sometimes distinguish between an employee's "detour" or "frolic". For example, an employer is vicariously liable if the employee had gone on a mere detour in carrying out his duties. If an employee acts in his own right rather than on employer's business, the employer is not liable for the employee's frolic.

Generally, an employer will not be liable for assault or battery committed by employees unless the use of force is part of their employment (e.g. police officers).

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 is a pupil (e.g. principal abusing the child on a field trip).



DUTY OF CARE
is a legal obligation for an individual to conform to a standard of REASONABLE care
while performing any act that could foreseeably harm others.

THERE ARE 4 ELEMENTS - LAW OF TORT - NEGLIGENCE
To succeed in an action for negligence, the plaintiff must show that:
1. the defendant owes him a duty of care.
2. the defendant has breached that duty of care
3. the breach causes damage/loss to the plaintiff
4. the damage/loss is not too remote (not controllable, not foreseeable, not an expert on the particular subject matter).


It is the first element (defendant owes him a duty of care) that must be established to proceed in an action of NEGLIGENCE. The plaintiff must BE ABLE TO SHOW a duty of care imposed by the law which the defendant has breached.



THE STANDARD BY WHICH DUTY IS MEASURED
Once a duty exists, the plaintiff must show that the defendant has BREACHED IT.
This is the 2nd element of negligence. Breach involves testing the defendant's actions against the standard of REASONABLE PERSON. This varies depending on the facts of the case. For example, doctors will be held to reasonable standards for members of his profession rather than the GENERAL PUBLIC, in negligence actions for MEDICAL MALPRACTICE.

Once the appropriate STANDARD has been found, the BREACH is proven when the plaintiff shows that the defendant's conduct fell below or did not reach the relevant STANDARD OF REASONABLE CARE.

However, if the defendant took every possible precaution and exceeded what would have been done by an REASONABLE PERSON, yet the plaintiff was injured, the plaintiff cannot recover in negligence.

No comments:

Post a Comment