What is vicarious liability?

Vicarious liability occurs when an individual is responsible for the actions of another person.  In personal injury law, this mainly applies to situations that involve employer-employee relationships.

In other words, under vicarious liability, an employer may be held liable for a wrongful act or wrongdoing committed by an employee during working hours. For example, the NHS typically pays compensation for injuries caused by medical negligence committed by its staff.

If you or a loved one suffered harm because of someone acting negligently during the course of their employment, you may be eligible to claim compensation from their employer.

To find out if you have a valid vicarious liability claim, do not hesitate to call 0800 470 0474 for a free case assessment from a qualified solicitor. Alternatively, you can enter your details into our contact form to request a call back.

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Table of Contents

• What does vicarious liability mean?
• How does vicarious liability apply to personal injury claims?
• How is vicarious liability determined?
• Can an employer defend a claim for vicarious liability?
• What does 'in the course of employment' refer to?
• What is the difference between full and vicarious liability?
• What is the difference between strict and vicarious liability?
• Can businesses be vicariously liable for independent contractors?
• Am I eligible to make a vicarious liability claim?
• Time limits to start a claim for compensation
• How can I get compensation if vicarious liability does not apply to my case?
• Will I need a solicitor to make a compensation claim?

What does vicarious liability mean?

Vicarious liability is a legal principle that holds one party responsible for the actions of another based on the relationship between them. It is closely related to the concept of strict liability and typically applies to employer-employee affiliations.

Under this principle, an employer may be responsible for the actions of their employees in the course of employment. For example, if an employee caused an injury to a customer whilst working, the employer may be considered as being vicariously liable.

Vicarious liability can arise in two ways:

• Through common law – this is established by the courts in cases where an employer can be held liable for injuries and losses caused by an employee through negligence or assault;
• Through statute – laws such as the Equality Act 2010 hold employers liable for discriminatory acts by employees. This may extend beyond the employer-employee relationship to agency workers, self-employed workers and even independent contractors.

How does vicarious liability apply to personal injury claims?

As stated above, an employer or business may be held vicariously liable for the actions of its employees, both under statutory and common law.

In personal injury terms, this means that a claimant may seek compensation from the employer as opposed to the individual who was directly responsible for any injury or losses they suffered.

This shifts the financial burden of compensation from the employee, who may have limited resources, to the employer, ensuring that the injured party has the means of recovering their losses.

Most companies are legally required to take out Employer’s Liability (EL) Insurance. The EL covers the cost of any compensation payments that are paid because of an accident or injury suffered by an employee in the workplace.

This means that the employer recovers the compensation costs from their insurance company rather than sustaining the financial loss directly.

However, it’s essential to note that EL insurance primarily covers claims from employees. For claims involving third parties, such as customers or members of the public, that result from an employee’s actions, public liability insurance is typically required.

How is vicarious liability determined?

Two legal tests are applied to determine if an employer is vicariously liable for the employee’s wrongdoing:

• First, there is a relationship test – it must be proven that there is a legally recognised relation between the two parties that justifies holding the employer responsible;
• Secondly, there is a close connection test – the wrongful act must be closely connected to the tasks the employee was authorised to perform. In other words, the employee’s actions should be sufficiently linked to their job duties to make it fair to hold the employer responsible.

Examples of negligence in the workplace that could give rise to a vicarious liability claim include:

• A delivery driver causes a road traffic accident while on their delivery route due to speeding;
• A construction worker operates heavy machinery negligently, injuring a co-worker or member of the public;
• A waiter negligently spills a hot drink or food on a customer, causing them a burn injury;
• A supermarket employee fails to clean up a spilt liquid, which results in a slip and fall injury;
• A security guard uses excessive force when detaining a customer, or a bouncer assaults a patron;
• An office worker makes a negative remark about a co-worker’s race, gender, or disability.

If an employer is found liable for the wrongful actions of their employees, they could face compensation fees and even employment tribunal hearings.

Can an employer defend a claim for vicarious liability?

If a vicarious liability claim is made against an employer, they may attempt to deny it to minimise premium increases, inconveniences caused by legal cases and reputational damages. They have several potential defences they can raise to avoid or minimise their liability:

• They may argue that there was no valid employer-employee relationship;
• They can say that the employee acted outside the scope of their employment and unrelated to their job duties;
• Establish a statutory defence by showing they took all reasonable steps to prevent discrimination in the workplace;
• Prove that they offered adequate training and instructions to prevent wrongful acts.

If the employer is nonetheless found liable for the acts committed by their employee, they can still challenge the amount of damages claimed by the injured party.

To avoid the risk of a claim for vicarious liability, employers should take the following measures:

• Actively monitor the workplace by conducting regular risk assessments and documenting them;
• Address any complaints from employees and establish a clear procedure for reporting incidents;
• Provide training regarding safety protocols and proper conduct in the workplace;
• Create and maintain clear and detailed documents regarding the company policies and the training provided to employees;
• Consult with a specialist lawyer to assess vicarious liability risks and recommend protective measures;
• Make sure they have the appropriate insurance to cover any potential liability.

What does ‘in the course of employment’ refer to?

The term ‘in the course of employment’ refers to actions undertaken by an employee during their work duties, within work hours or at the workplace. It is crucial in determining whether an employer is liable for the wrongful acts committed by an employee.

Activities considered within the course of employment typically include performing job tasks, attending work meetings, and other work-related duties.

On the other hand, actions taken outside of work hours or at unauthorised locations are generally not considered to be within the course of employment.

For example, an employee commuting to work is typically not deemed to be within the scope of employment. On the other hand, employers can be liable for incidents occurring at social events arranged by them, such as Christmas parties.

When determining whether an employee’s actions are in connection with their work, the court will consider various factors, such as:

• Did it take place at work or outside of work?
• Is there a sufficient connection between the incident and the workplace?
• Did it occur within working hours?
• Did they use a work uniform or equipment?
• Were other employees or the employer involved in any way?

What is the difference between full and vicarious liability?

Full liability and vicarious liability are two different forms of liability that can sometimes overlap. Under full liability, a party is directly and solely responsible for their own actions or omissions that cause harm or damage.

In a workplace environment, this means the employer themselves acted negligently or wrongfully, such as by violating safety regulations. It may also include situations when an employer expressly authorised an employee to commit a wrongful act.

On the other hand, vicarious liability arises when one party is held accountable for the actions of another due to a specific relationship between them. In this scenario, an employer can be held liable for the wrongful actions of an employee, even if they did not directly authorise the act.

What is the difference between strict and vicarious liability?

Vicarious liability and strict liability are two distinct legal concepts that share a common element – holding a party responsible for damages without having to prove fault.

Under strict liability, a party is held liable for harm caused by their actions or products, regardless of intent or negligence.

A typical example refers to claims for injuries caused by faulty products. In such cases, the product manufacturer or distributor is strictly liable for damages without the claimant needing to prove that they were negligent. They must only prove that their product was defective.

Similarly, under vicarious liability, employers can be liable for the acts of their employees, even if they did nothing wrong themselves. In this case, it must only be proven that the employee caused harm in the course of their employment.

Can businesses be vicariously liable for independent contractors?

Generally, vicarious liability is associated with the employer-employee relationship. Businesses are not typically liable for the actions of independent contractors, as these operate at their own risk and under their own account.

However, there are situations where a business might be held responsible for the actions of an independent contractor, such as:

• It has a certain degree of control over the contractor’s work.
• The contractor it hired is not competent or qualified for the job.
• The contractor was hired for work that is inherently dangerous.
• It failed to fulfil a duty of care that could not be delegated to the contractor.

If you were injured due to the actions of an independent contractor, you should consult with a specialist lawyer as soon as possible. They can let you know if you can make a claim under vicarious liability rules.

Am I eligible to make a vicarious liability claim?

If you had an accident due to the actions of an employee, their employer could be liable to pay you compensation. To determine if vicarious liability applies to your situation, your solicitor will ask the following questions:

• Did you suffer harm?
• Was the harm a direct result of the employee’s wrongful actions?
• Was the employee acting in the course of their employment?

If the answer to these questions is yes, you can hold the employer vicariously liable for your injuries and claim compensation from them. Your solicitor will contact them or their insurer and help you gather all the evidence you need to support your claim. This could include:

• Employment contracts and company records;
• Job descriptions and work schedules;
• Statements from witnesses;
• Photographs or videos of the accident scene;
• Medical records detailing your injuries;
• Evidence of financial damages.

Time limits to start a claim for compensation

The time limit to make a personal injury claim is governed by the Limitation Act 1980 and is typically three years. This means that you generally have three years from the date of the accident or the date of knowledge of the injury to start your claim.

There are some exceptions to this rule:

• Child injury claims have no limitation period until the child’s 18th birthday, from which they have until they’re 21 to begin a claim.
• If the injured person lacks mental capacity, the time limit is suspended. There is no limitation date for a litigation friend to represent them.

Even though you may have a lot of time, you are strongly advised to start the claim process as soon as possible. Any delays can make it more difficult to gather evidence and build a strong case.

How can I get compensation if vicarious liability does not apply to my case?

If you had an accident at work or somewhere else and vicarious liability does not apply to your case, you may be able to pursue compensation through other routes. For example:

• You could make a direct claim against the negligent party – this involves proving they breached their duty of care towards you and directly caused your injuries.
• You could claim under your own insurance policies. For example, if you have comprehensive motor insurance and you suffer a road accident.
• If you were the victim of an assault or another violent crime, you may be eligible to claim compensation from the CICA.
• If your injuries affect your daily living or ability to work, you may also be entitled to state benefits, such as Personal Independence Payment (PIP) and Universal Credit.

Will I need a solicitor to make a compensation claim?

While you are not legally required to have a solicitor to make a claim, this is highly recommended, especially for complex claims like those involving vicarious liability. The benefits of having legal representation include:

• They can help you gather and organise the necessary evidence to support your claim;
• They know precisely how much your claim is worth;
• They are skilled negotiators and can help you achieve a fair settlement;
• They will handle all the legal aspects of the case and allow you to focus on your recovery.

The solicitors we work in partnership with will offer you a 100% no win no fee agreement, which means that there is no financial risk to you if your case fails.

You do not have to pay them anything upfront, and they will only be entitled to a percentage of your compensation (capped at 25%) if they win your claim. If your vicarious liability claim is unsuccessful, you won’t pay a penny.

To learn more about vicarious liability and how it might apply to your claim, call 0800 470 0474 for a free case assessment or use our claim form to request a call back.