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Understanding vicarious liability in personal injury claims

David Cossalter

Written by:

David Cossalter

If you’ve been harmed by someone’s actions, you might be wondering who can be held responsible. In some cases, it’s not just the individual who caused the harm that can be held liable – their employer or another related party might also be responsible under a legal concept called ‘vicarious liability.’

This article aims to help you understand what vicarious liability is, how it might apply to your situation, and what you need to know if you’re considering making a personal injury claim.

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What is vicarious liability?

Vicarious liability is a legal principle that holds one party responsible for the actions or omissions of another party. Typically, this applies in situations where there’s a special relationship between the two parties, such as:

  • Employer and employee
  • Principal and agent
  • Partner and partnership
  • Parent and child (in some circumstances).
 

Under vicarious liability, even if an employer or principal wasn’t directly involved in the wrongful act, they can still be held legally responsible for the actions of their employee or agent.

When does vicarious liability apply?

You might have a claim involving vicarious liability if:

  1. The person who caused the harm was employed by or acting as an agent for another party
  2. The harmful act occurred during the course of their employment or agency
  3. The act was somehow connected to the employee’s authorised duties.
 

It’s important to note that the exact requirements can vary depending on your jurisdiction and the specific circumstances of the case.

Examples of vicarious liability

To help you understand how vicarious liability might apply in real-life situations, let’s look at some examples.

 

Employer-employee relationship

A delivery driver for a local pizza chain causes a car accident while making a delivery, injuring another motorist in a motor vehicle accident. The pizza company could be held vicariously liable for the driver’s negligence because the accident occurred while the driver was performing job-related duties.

 

The company could be liable because:

  1. The driver was acting within the scope of their employment

  2. The company benefits from the driver’s work

  3. The company has control of the driver’s activities during work hours.

Church-clergy relationship

In a recent high-profile case in Sydney, a church (the Roman Catholic Church for the Diocese of Saint Maron) was held vicariously liable for the actions of a priest who sexually abused a child (an institutional abuse claim).

 

The court found that the church was responsible because:

  1. The abuse occurred within the context of the priest’s role in the church.

  2. The Church placed the priest in a position of trust and authority.

  3. The church has a responsibility to properly screen, train, and supervise its clergy.

Hospital-doctor relationship

A surgeon makes a critical error during an operation, causing severe complications for the patient. The hospital could be held vicariously liable for the surgeon’s mistake as part of a medical negligence claim.

 

The hospital may be liable because:

  1. The surgeon was performing duties within the hospital’s facilities.

  2. Patients reasonably believe that the hospital is providing their care.

  3. The hospital has a duty to ensure the quality of care provided within its premises.

School-teacher relationship

A teacher fails to properly supervise students during a field trip, resulting in a student getting injured. The school could be held vicariously liable for the teacher’s professional negligence.

 

The school may be liable because:

  1. The teacher was acting within the scope of their employment

  2. The school has a duty of care towards its students

  3. The school is responsible for ensuring proper supervision and safety protocols are followed.

Security company-guard relationship

A security guard at a shopping mall uses excessive force while apprehending a suspected shoplifter, causing injury. The security company could be held vicariously liable for the guard’s actions, failing their duty of care.

 

The security guard may be liable because:

  1. The guard was performing duties within the scope of their employment

  2. The company is responsible for properly training and supervising its guards

  3. The company benefits from the guard’s services and has control over their activities.

Why is vicarious liability important for your injury claim?

Understanding vicarious liability is crucial because it can significantly impact your personal injury claim:

1. Increased compensation

By holding a company or organisation liable, you might have access to greater financial resources for compensation. In the aforementioned 2024 case against the Roman Catholic Church for the Diocese of Saint Maron, the plaintiff was awarded the sum of $1,480,251.65 jointly and separately from the first and second defendants. 

2. Broader responsibility

It encourages organisations to take responsibility for the actions of their employees or agents.

3. Improved safety measures

The threat of vicarious liability often motivates companies to implement better training and safety protocols.

4. Justice and accountability

It can provide a sense of justice, especially in cases where the individual wrongdoer may not have the means to compensate you adequately. 

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Challenges you might face in a vicarious liability claim

While vicarious liability can be a powerful legal tool, these claims can present unique challenges:

1. Proving the relationship

You’ll need to establish that a relevant relationship (like employer-employee) existed at the time of the incident.

2. Scope of employment

You’ll have to show that the harmful act occurred within the scope of the person’s employment or agency.

3. Independent contractor issues

If the person who caused harm was an independent contractor rather than an employee, it can be more difficult to establish vicarious liability.

4. Corporate structure complications

In some cases, complex corporate structures can make it challenging to determine which entity should be held vicariously liable.

5. Statutory limitations

Some jurisdictions have laws that limit vicarious liability in certain situations.

Variations by state in vicarious liability claims

In Australia, while the general principles of vicarious liability are similar across the country, there can be some variations in how they are applied.

New South Wales

  • NSW courts have been relatively broad in their interpretation of vicarious liability, particularly in cases involving intentional wrongdoing by employees. They follow common law principles.
  • The ‘close connection’ test is often applied, looking at whether the employee’s wrongful act was closely connected to their authorised duties.

Queensland

  • Queensland follows similar principles to other states but has some specific statutory provisions relating to vicarious liability in its Civil Liability Act 2003.
  • These provisions can affect how vicarious liability is applied in certain situations, such as against institutions for child abuse.

Australian Capital Territory

  • The ACT follows common law principles of vicarious liability.
  • Like other states, they consider the connection between the employee’s duties and the wrongful act.

Recent developments in vicarious liability law

The concept of vicarious liability has been evolving, with recent court decisions providing more clarity on its application. One significant case is the High Court of Australia’s decision in CCIG Investments Pty Ltd v Shokman [2023] HCA 21.

The Schokman case

The case, decided in August 2023, provides important insights into how courts interpret vicarious liability:

  • The case involved an employee who was urinated on by his inebriated roommate (also an employee) in employer-provided accommodation.
  • The High Court unanimously ruled that the employer was not vicariously liable for the roommate’s actions.
  • The Court emphasises that while the incident occurred during employment, it was not sufficiently related to the employment to establish vicarious liability.

 

This decision highlights the complexity of determining when an employer can be held responsible for an employee’s actions. Especially when those actions occur outside of direct work duties.

Types of vicarious liability

In the same judgement, the justices set out that there are three different concepts that are often confused with vicarious liability.

 

These are:

  1. Vicarious acts: This involved acts authorised by the employer. It’s more accurately described as direct liability rather than vicarious liability.
  2. True vicarious liability: Liability attributed to the employer for unauthorised wrongful acts committed by an employee, provided they’re connected to the employee’s duties.
  3. Duty of Care: This occurs when an employer fails to properly delegate a duty of care to an employee or contractor. 
 

Understanding what applies to your case is important to pursue a vicarious liability claim. Our team of lawyers can examine your case and best direct you.

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How vicarious liability might affect your claim

If vicarious liability applies to your situation, it could affect your claim in a few ways:

  1. Your claim may have multiple defendants
  2. With a company potentially liable, there may be more resources available for increased compensation
  3. Dealing with a company’s legal team and insurers can make negotiations more complicated
  4. There may be a longer legal process given the complexities of the claim
  5. Your case might have a broader impact and lead to policy changes within the organisation, preventing similar incidents in the future.

How GMP Law can help

At GMP Law, we understand the complexities of vicarious liability claims and the impact they can have on your life.

We offer compassionate, personalised legal representation, guiding you through every step of the claims process. Our expertise in this nuanced area of law allows us to build strong cases, negotiate effectively with companies and their insurers, and advocate fiercely for your rights in court if necessary.

If you’ve been harmed due to someone’s actions while they were working or acting as an agent for another party, don’t face this challenging time alone. Contact us today for a free, no-obligation consultation. 

Your rights matter, and we’re here to ensure they’re protected.

Frequently Asked Questions

Generally, the company is only liable for actions that occur within the scope of employment. Meaning, they would have to be on duty and working. However, there can be exceptions, such as if the employment created the opportunity for the wrongful act.

Vicarious liability typically doesn’t apply to independent contractors. However, as always, there are exceptions, such as if the company retained a high degree of control over the contractor’s work.

Yes, there are time limits (called limitation periods) for making personal injury claims, including those involving vicarious liability. These vary by state and the type of claim, typically ranging from three to six years.

Yes, in many cases you can pursue a claim against both the individual who caused the harm as well as their employer, principal or the institution.

David Cossalter

Author

David Cossalter

Managing Partner

As GMP Law's Managing Partner, David Cossalter is a seasoned legal expert specialising in complex personal injury cases. With over 20 years of experience, he prioritises client care while delivering exceptional results. He focuses on Wills and Estates litigation, Class Actions, and Public Liability.

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Class Actions
Class Actions
At GMP Law, we have extensive experience in class action lawsuits, amplifying the voices of individuals who have experienced similar harms or losses.
Services
Services
Gerard Malouf & Partners manage cases for clients across all areas of Personal Injury Law, Inheritance Disputes and Superannuation Disputes.
About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
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Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
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Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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