• If my employee causes injury to others during employment, what is my liability?

    Here is a post from the first law firm I worked at – Stewart McKelvey (I articled there in the early 90s) – about the responsibility of an employer for injury caused by employees. Here is the basic structure of the issue:

    1. Where the injury is damages from a breach of a contract that the employer has with a third party, generally the employer will be liable for those damages, subject to the particular terms of the contract and ordinary principles of common law on remedies for breach of contract. It is, after all, a contract of the employer.

    2. Where the injury is a tort, the issue is whether the employer is either (i) liable under the terms of a contract for the injury (contracts often make a party liable to indemnify the other party for injury caused by its employees, agents and other representatives), or (ii) vicariously liable for the acts of the employee.

    3. Where the issue is breaking the law, the employer can be found responsible for the actions of employees (in addition to other liability – i.e. civil liability under 2(i)). This is a very complex question and not covered here.

    The post addresses 2(ii) and covers the analysis of whether the employer is vicariously liable. The basic concept is the question of what rules should apply to determine when one person (the employer) should be responsible for the actions of another (“Vicarious liability”). Unsurprisingly, the application of the test to any particular case is very fact dependant (in the lead case on this issue, the employee had sexually abused children under the care of the employer, which operated a residential care facility).