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Vicarious Liability of Employers

What is Vicarious Liability?

Vicarious liability holds someone responsible for the harm caused by another person’s actions due to their relationship with the person causing the harm. It is a type of strict liability, which holds a person or organization accountable for harm even where there is no evidence of direct fault or criminal intention on the part of the person or organization. Employers can sometimes be vicariously liable, meaning they’re accountable for the harm their employees cause. Victims can claim against an employer or organization for more full compensation, as these entities likely have insurance or greater resources than the individual who caused the harm.

When is an Employer Vicariously Liable?

For the majority of claims, determining the defendant’s legal responsibility for the claimant’s harm is not particularly complicated. However, it can be difficult and complicated to establish vicarious liability of an employer for harm caused by their employee. There are several elements that a claimant must satisfy in order to make a successful claim for vicarious liability against an employer. They must establish a relevant connection between the harm caused and the employment of the person (the tortfeasor) who caused the harm. As outlined in Bazley v. Curry (1999) some key issues that the courts will consider in determining if vicarious liability exists for a particular claim include:

  • Degree of opportunity the employer afforded the employee to abuse their power;
  • The extent to which the act furthered the employer’s aims (and hence was more likely to be committed by an employee);
  • The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s business or workplace;
  • The extent of power held by the employee over the victim;

And particularly,

  • The vulnerability of potential victims to wrongful exercise of the employee’s power

Remember, a claim’s success depends on a valid cause of action. Without one, the claim will likely be dismissed. A valid cause of action is a set of facts which can justify an award of damages or other legal enforcement. It is common for employers to attack the claimant’s cause of action as being invalid in an attempt to have the courts strike down a claim of vicarious liability.

Even When an Employer is Vicariously Liable, the Individual is Still Personally Liable

The majority of vicarious liability claims are related to an employee of a business accidentally causing injury to a patron. In 2017, the Ontario Court of Appeal heard the case of Sataur v. Starbucks (2017). In this case, a Starbucks employee accidentally poured scalding hot water on Sataur’s hands, injuring them. The clear connection between the harm and the barista’s employment established Starbucks’ vicarious liability. However, Sataur also made claims against the barista themselves and the manager of the store for their negligence.

The courts confirmed on appeal that an individual employee can also be personally liable for their negligence, even when their employer is vicariously liable. Claimants can potentially recover a larger settlement by combining claims against both the employer and the employee. This is especially useful when the tortfeasor lacks the resources to adequately compensate the victim for the harm caused.

Harmed individuals should seek legal advice and not assume they should abandon a claim because the person who harmed them might lack the necessary resources for compensation. Employers often face vicarious liability, enabling victims to recover damages for the harm caused.

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