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  • Mariel Irvine

Vicarious Liability : a practical guide

You may not have noticed I have been quiet for some time. This is an extract from the opening chapter of my book on vicarious liability, published in November. It can be purchased at Wildys, Hammicks, Amazon or at the link below. If you read it, please let me know what you think of it!

There have been at least five decisions of the Supreme Court relevant to vicarious liability since 2012. A topic of importance in a minority of cases, and sometimes described as “geeky”, has been forced into the spotlight.

What is vicarious liability? It is a legal principle. When applied, one party is substituted for another and held liable for that other party’s wrongdoing. Sometimes the replacement party may be blameworthy or bear some “primary liability” of its own. At other times, it may have no primary liability. For example, in the Morrison case the company was vicariously liable for a vicious assault on a customer by an enraged employee on a petrol station forecourt.

It is an emotive issue when it concerns the imposition of liability on a blameless party, in circumstances where someone else is in the wrong. The applicability of the doctrine depends on public policy. A party is targeted in litigation because it has the financial means to satisfy a judgement, when the culpable party has not. In cases where the claimant rightly recovers compensation, the wrongdoer may be seen to escape Scott free.

When deciding whether the principle applies, the Supreme Court has suggested the depth of a party’s pockets is not the most significant of several factors to be taken into account. ....

Insurers remain unconvinced. Some believe the Market is being required to fund a system of no-fault compensation. On the one hand it is right that meritorious claimants recover compensation where they have suffered damage as a result of another’s wrong doing. On the other hand, there are many circumstances where insurers have indemnified policy holders who are blame free. Liability policy wordings have been reviewed following the imposition of vicarious liability for the commission of serious criminal offences. What can an organisation do to reduce the risk of engaging a future criminal who has no previous criminal convictions? Very little.

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