Vicarious liability

Vicarious liability is indirect liability for the actions of another person, such as an employee.

Mrs X, a receptionist at a busy medical practice, was juggling a high volume of phone calls and patient inquiries. One morning, a caller reached out with concerns about her persistent headache and fatigue. Mrs X listened attentively, empathising with the caller’s discomfort. However, instead of transferring the call to a nurse or doctor as per protocol, she decided to offer some advice herself. Later that day the caller came into the practice with her condition only worse after proceeding with the unauthorised advice she unknowingly followed, believing that she had spoken to a medical practitioner the morning who offered advice. Our caller has now suffered and plans to sue the practice for medical negligence she believes took place.

An act of kindness on the one hand or a potential medical malpractice lawsuit on the other by your employee who acted outside her mandated scope of work.

Vicarious liability is indirect liability for the actions of another person, such as an employee. There is a very fine line when it comes to vicarious liability, and it holds an enormous risk to the employer. An employer is vicariously liable for the acts or omissions of its employees committed during the course and scope of their employment.

The general rule is that an employer will be held vicariously liable for the wrongful acts of an employee if the act in question was committed within the course and scope of the employee’s employment or whilst the employee was engaged in any act subsidiary to it.

When applying this legal principle to your day-to-day operations, it is important for all employers to ensure that employees are entrusted with only as much power as is strictly necessary to ensure that operations run smoothly. In order to reduce any risk of an employee acting outside of their mandated scope of employment (and subsequent vicarious liability for the employer), an unambiguous mandate with clear-cut lines which should not be crossed must be implemented and enforced by the employer to ensure that all employees are performing work within the confines of their mandate.

It might even be wise for employers to consult their insurance consultants or brokers, aiming to confirm they possess suitable coverage to reduce the potential risks linked to prolonged instances of employee misconduct. These situations could lead to legal responsibility towards external parties.

The legal principles for vicarious liability have been extended beyond the traditional principle of “in the course and scope of their employment”, to include other criteria when establishing liability, such as the creation by the employer of risk of harm. Keeping this perspective in consideration, employers ought to pursue comprehensive measures to guarantee the mitigation of the business’s risk concerning vicarious liability.