Vicarious Liability, or, Who’s Going To Pay For This?

Common sense would tell us that a person is responsible for his or her own actions. As a matter of legal liability, however, matters are rarely quite so straightforward. What if a person is at work when their actions cause harm? What if the wrongdoer does not have the ability to pay for the consequences of their actions? This is where vicarious liability comes into play.

In the context we are considering here, the common law doctrine of vicarious liability can function to impose liability on an employer for the actions of their employee. The employer can then be held accountable for the losses or injuries that were caused by the negligent or wrongful actions of that employee.

Vicarious liability is a legal doctrine that gives effect to the important public policy consideration that an employer should be incentivized to take all reasonable steps to reduce the risks associated with their business – for example, having appropriate training, licensing and supervision requirements for employees, and putting in place reasonable workplace policies designed to avoid or minimize foreseeable problems.

The victim of an accident or injury can always look to the person who is directly responsible for compensation for the losses that they sustain. Vicarious liability is so significant because individuals often do not have the financial resources to fully compensate an injured person for the losses they have caused. Through vicarious liability, the victim may be able to seek the shortfall in their compensation from an organization that is directly or indirectly responsible for the wrongdoer’s behaviour. And there’s a good chance the organization will have a greater capacity to shoulder the costs of compensation than the wrongdoer.

As a general rule, vicarious liability for an employee’s actions can be established against an employer where their employee’s acts were either expressly authorized by the employer, or were so connected to authorized acts that they effectively fell within the scope of the employee’s job.

Courts have examined the doctrine of vicarious liability a number of times, and they have developed a body of case law that serves as a guide post for circumstances in which an employer can be held liable. It is not possible to provide a comprehensive list, but the circumstances can include both unintentional (negligent) acts (such as motor vehicle accidents), and even intentional acts (like a workplace sexual assault).

In the case of negligent employee behaviour, it is usually relatively straightforward to determine if an employer should be held vicariously liable for it. But in the case of intentional wrongs, like a workplace assault or sexual abuse, it can be more difficult. In these cases, the employee’s behaviour may have effectively brought them outside the ordinary course of their employment, making it tough to show a close enough connection between the wrongful behaviour and the employer.

To determine if there is a close enough connection to give rise to vicarious liability, courts will consider whether the wrongful act was sufficiently related to conduct authorized by the employer. This analysis will typically include an examination of:

1. the opportunity that the employer provided to an employee to abuse their power;
2. the extent to which the employee’s actions may have furthered the employer’s goals;
3. the extent to which the wrongful act was related to friction, confrontation or intimacy natural to the employer’s business;
4. the extent of power conferred on the employee in relation to the injured person; and
5. the vulnerability of the injured person to the employee as a result of the power given to them by an employer.

Vicarious liability is an important tool for injured and aggrieved individuals who are looking for redress for what they have experienced. However, establishing vicarious liability in a particular case is never easy, and won’t be possible in every situation. If you are wondering if an employer can be held responsible for the actions of their employee, it’s best to speak with an experienced lawyer who can give you a professional opinion. A local Hamilton lawyer with experience in both employment law and injury & assault litigation can help you decide if a civil lawsuit is an option for you.