VICARIOUS LIABILITY AND DEFENCES TO NEGLIGENCE

 VICARIOUS LIABILITY

Vicarious Liability is an exception to the principle that a person should not be held liable in absence of fault of his own.
Vicarious liability refers to situation where, for example Ali is liable to Chong for damage or injury suffered by Chong due to the negligence or other tort committed by Bobby.
Ali need not have done anything wrong and need not owe a duty of care to Chong.
Most important condition for imposing a liability on Ali is the nature of relationship between Ali and Bobby
Under vicarious liability - employer liable for the negligent act of his servant/ employee.

The reasons why an employer has to be liable for the negligence of the employee :
  • Employer employ the negligent worker
  • Employer failed to control the employee
  • Employer benefit from the employee’s work - set the whole thing in motion
  • Employer has deeper pocket


However, before you sue the employer for the wrongdoings of his employee, make sure these requirements are fulfilled
  1. Wrongful act
    1. The court will see whether a tort has been committed
  2. The existence of a special relationship
    1. The employer will only be liable if the tort is committed by his employee/ agent
    2. If the tort is committed by independent contractor, then the employer will not be liable
    3. Several tests to determine existence of contract of service:
   Control test
   Integration Test
   Multiple Test
  1. The tort is committed by the employee during the course of employment


DEFENCES TO NEGLIGENCE

 Volenti Non Fit Injuria
      Prevents the defendant’s wrongful conduct from being a breach
      There must be consent or assumption of risk by the plaintiff
      The consent or assumption of risk must be voluntary – whether express or implied
      There must be full knowledge of the nature and extent of risk of injury 
      Must be to the act complained of

Inevitable Accident
      Something which is not avoidable by any such precautions as a reasonable man could be expected to take
      Defendant must prove that what happened is beyond his control and could not be avoided by the exercise of skill and care – e.g. latent defect in a vehicle


VICARIOUS LIABILITY AND DEFENCES TO NEGLIGENCE VICARIOUS LIABILITY AND DEFENCES TO NEGLIGENCE Reviewed by Kamaruddin Mahmood on 10:13:00 PTG Rating: 5

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