Vicarious Liability and Joint Tortfeasors

TL;DR

Vicarious liability makes one person responsible for the torts of another, even if they didn't commit the act themselves. This usually applies when there's a specific relationship and the tort occurs within the scope of that relationship. Joint tortfeasors are two or more people whose separate acts combine to cause the same single damage to you.

1. The Mental Model

Imagine someone else crashes your car because you lent it to them for work; vicarious liability is about holding you, the car owner, partly responsible because of your connection. Joint tortfeasors are like two separate drivers who, by their individual bad driving, both crash into your car at the same time, causing one big mess.

2. The Core Material

Vicarious Liability

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Vicarious liability means Party A is held responsible for a tort committed by Party B. This isn't because Party A did anything wrong directly, but because of their special relationship with Party B and the context of Party B's actions. It's often justified by saying the employer (Party A) has more resources, control, and benefits from the employee's (Party B's) work, so they should bear the risks too.

You need to satisfy three conditions for vicarious liability to apply:

1. There must be a tort committed by Party B (the primary tortfeasor). If there's no underlying tort, there's nothing to be vicariously liable for.
2. There must be a relationship between Party A and Party B capable of giving rise to vicarious liability. The most common relationship is employer-employee. The courts have broadened this to "relationships akin to employment" where Party A exercises control over Party B, and Party B's work is integrated into Party A's business.
3. The tort must have been committed "in the course of employment" or "within the scope of the relationship." This doesn't mean it has to be an authorised act. It can include unauthorised methods of doing an authorised act, or even acts explicitly forbidden, as long as there's a close connection between the tort and the nature of the employment or relationship.

graph TD
    A["Tort Committed by Employee/Associate?"] -->|Yes| B["Relationship Capable of Vicarious Liability?"]
    B -->|Yes| C["Tort 'In Course of Employment' or Akin?"]
    C -->|Yes| D["Employer/Principal Vicariously Liable"]
    A -->|No| E["No Vicarious Liability"]
    B -->|No| E
    C -->|No| E

Joint Tortfeasors

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Joint tortfeasors are two or more people who are responsible for the same damage to you. This can happen in a few ways:

1. Acting in concert: They agree to commit a tort together (e.g., two people planning and executing an assault).
2. Employer and vicariously liable employee: The employer is vicariously liable for the employee's tort. Here, both are "jointly" liable for the same harm.
3. Breaching a joint duty: Two people owe a single duty to you, and both breach it (e.g., two property owners fail to maintain a shared wall that collapses).
4. Independent acts causing single, indivisible damage: This is the tricky one. If two different people commit separate negligent acts, and these acts combine to cause a single, indivisible injury to you, they can be treated as joint tortfeasors for that damage. Think of two cars crashing into your car at the same time due to their individual negligence.

The key is that the damage is one and the same. If their acts cause separate and distinct damages, they are "concurrent tortfeasors" but not "joint" in the strict sense for that specific damage, though the outcome for you might feel similar.

Contribution Between Tortfeasors

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When you successfully sue one of several joint tortfeasors (or concurrent tortfeasors for the same damage), that tortfeasor might be able to get contribution from the others. This means they can claim back a portion of the damages they paid to you from the other responsible parties. The court decides the amount of contribution based on what's "just and equitable," considering their responsibility for the damage.

3. Worked Example

Imagine you're walking past "The Daily Grind" coffee shop. Barista A, while making your latte, playfully throws a coffee bean at Barista B. Barista B ducks, and the bean hits you in the eye, causing a minor injury.

1. Tort Committed: Yes, Barista A committed battery against you (unlawful application of force).
2. Relationship: Barista A is an employee of The Daily Grind. This is a classic employer-employee relationship.
3. Course of Employment: Was throwing a coffee bean "in the course of employment"? While not authorised, it was an impulsive, ill-judged act within the general environment and context of their work duties. There's a "close connection" between the employment (working in a coffee shop) and the tort (using work materials, engaging with a colleague).

Therefore, "The Daily Grind" (employer) would likely be vicariously liable for Barista A's battery against you. Barista A is also directly liable. They are joint tortfeasors because their relationship makes the employer responsible for the employee's tort, leading to both being liable for your single injury. If you sue The Daily Grind, they might then seek contribution from Barista A to recoup some of the damages they pay you.

4. Key Takeaways

• Vicarious liability holds one party responsible for another's tort due to a specific relationship and scope of action.
• The employer-employee relationship is the most common scenario for vicarious liability.
• "In the course of employment" can include unauthorised or even forbidden acts if closely connected to the job.
• Joint tortfeasors cause the same, single damage, either by acting together, through vicarious liability, or by independent acts that combine.
• When multiple parties are liable for the same damage, they might be able to claim contribution from each other.
• Vicarious liability isn't about the employer's direct fault, but about policy reasons for assigning responsibility.

Common Mistakes to Avoid

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• Don't confuse vicarious liability with direct liability; they are distinct ways of being held responsible.
• Don't assume all torts committed by an employee automatically lead to vicarious liability; the "course of employment" test is crucial.
• Don't assume any two parties causing harm are "joint tortfeasors"; their acts must result in the same indivisible damage.
• Don't forget that even if an act is prohibited, it can still fall within the "course of employment" for vicarious liability.

5. Now Try It

You're advising a client who was injured when a delivery driver, D, speeding and texting on their personal phone while on a delivery route for "Speedy Couriers" (SC), crashed into them. D was explicitly told not to use their phone while driving.

Determine if SC could be vicariously liable for D's negligence. What factors would you consider, especially regarding the "course of employment" test given the explicit prohibition? What would success look like in advising your client?