Chris Bryden & Michael Salter provide an update on vicarious liability
Over the past two decades, a palpable shift in tortious liability to the party most able to pay has been detectable as an underlying theme in the common law. The clearest and most obvious example of this judicial thinking has been the growth in the scope of vicarious liability of employers for the torts of their employees. Such liability is strict; if the employee is liable then, so long as that employee can be connected to the employer, the employer will become jointly and severally liable. Given that the employer is likely to have deeper pockets than the employee, or be backed by a policy of insurance, this will usually afford a financial remedy to the wronged party.
Employee frolics
Employers were until relatively recently offered some protection from this strict liability for their employee’s wrongs. Judicial tests of being engaged in the business of the employer were developed by the common law; where an employee was engaged in a “frolic of their own”, an employer was not liable.
