Employers’ Vicarious Liability for Employee Negligence in Singapore
What is Vicarious Liability?
The meaning of “vicarious” is to act or do something for another person. In law, vicarious liability of an employer simply means holding an employer liable for a third-party’s injury caused by the wrongful act of its employee, if the act had been committed during the course of employment.
A good example would be where an employee’s negligence in not following safety measures at work results in a third-party’s injuries. Here, the employer can be held liable even though he was not negligent at all.
By imposing vicarious liability, the court’s aim is to provide just and practical remedies to a third-party injured by the wrongdoing of the employee.
How Can a Victim Prove Vicarious Liability?
There are situations where liability may be imposed on certain persons or corporations by statute. A good example is section 53 of the Personal Data Protection Act. This makes an employer liable for its employees’ unauthorised disclosure of personal data in the course of employment, even if the employer was unaware of its employee’s act.
In cases where vicarious liability is not automatically imposed by statute, the court uses a 2-stage inquiry to establish an employer’s vicarious liability:
- Was there a special relationship between the parties that would make it fair, just and reasonable to hold the employer vicariously liable?
- Was there a “sufficient connection” between the wrongful act and the employment relationship?
1. Was there a special relationship between the parties that would make it fair, just and reasonable to hold the employer vicariously liable?
The first stage examines if the nature of the relationship between the defendant (i.e. employer) and the tortfeasor (i.e. the party who caused the injury, such as the employee) was a “special” one making it fair, just and reasonable to hold the employer vicariously liable.
The court will assess if it will be fair, just and reasonable to impose vicarious liability on the employer bearing in mind the following factors:
- Whether the employer would be more likely than the employee to have the financial means to compensate the victim and could be expected to have insured itself against such liability;
- Whether the wrongful act had been committed as a result of work done by the employee on behalf of the employer;
- Whether the employee’s work was part of the business activity of the employer;
- Whether the employer, in hiring the employee to do the work, had created the risk of the employee committing the wrongful act; and
- Whether the employee had been under the employer’s control at the time the wrongful act was committed.
If the employee had been hired under a contract of service to serve in the employer’s business, there will usually be a “special relationship” between the employee and the employer making it fair, just and reasonable for the employer to be held vicariously liable.
However, if the tortfeasor is proven to be an independent contractor (hired under a contract for service), such a “special relationship” will usually not exist. This is because, an independent contractor is a party that is engaged in its own business and not the employer’s.
It would therefore not be fair, just or reasonable to hold the employer vicariously liable for acts that are outside the scope of its business.
Read our other article to understand the difference between a contract of service and a contract for service.
2. Was there a “sufficient connection” between the wrongful act and the employment relationship?
After determining that there is a special relationship between the defendant and the tortfeasor, the court moves on to the second stage of the analysis.
In this stage, the court looks at whether there was a “sufficient connection” between the wrongful act and the employment relationship, such that the relationship had created or significantly increased the risk of the harm that ensued.
Here, the court will consider certain factors to determine whether there was, in the circumstances of the case, the required close connection. These factors include the:
- Opportunity the employer afforded the employee to abuse his/her power;
- Extent to which the wrongful act may have furthered the employer’s aims (as this results in a higher likelihood of the employee committing the act);
- Extent to which the employee’s wrongful act was related to the risks inherent to the employer’s business;
- Extent of power conferred on the employee in relation to the victim; and
- Vulnerability of potential victims to wrongful exercise of the employee’s power as part of his employment.
The essential closeness of connection between the relationship between the defendant and the tortfeasor, and the wrongful acts, thus involves a strong causative link.
In other words, the employment relationship should have played a significant role in causing the employee to commit the wrongful acts which harmed the victim.
If the close connection is established, the employer will be held vicariously liable.
Should you wish to make a claim for vicarious liability, you may wish to speak to our personal injury lawyers.
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