Vicarious Liability of Employers

When an employee injures someone in the course of their employment, their employer can be held responsible or vicariously liable. The rationale is that it is the employer who introduced an enterprise that carries risk into the community and should bear the loss when that risk materializes.

Employers will be vicariously liable for the actions or their employees if:

  1. The actions of the employee are authorized by the employer; or
  2. The actions of the employee are not authorized by the employer, but are so connected to authorized actions that they may be regarded as modes of doing an authorized action.

Determining whether an unauthorized act by an employee may be regarded as a mode of doing an authorized act can be difficult. If there are precedents that unambiguously determine on which side of the line the case falls, that precedent should be followed. Conversely, if there are no precedents and the case is novel, whether vicarious liability should be imposed will be determined in light of broader policy rationales.

These considerations were at play in the recent case of Sambuev v. Handley, 2021 BCSC 1499 where the Court had to determine whether a trucking company should be held vicariously liable for the actions of its employee who assaulted another driver in instance of road rage. While the Court found that there was some precedent in other provinces that an employer should be held vicariously liable in such a situation, it found it the case was distinguishable and that it was not bound by the decision.

Nevertheless, in considering broader policy rationales, the Court found that the trucking company should not be held vicariously liable for a number of reasons including:

  • The company did not authorize the employee to use force against others. Rather, it specifically instructed the employee to avoid situations that could cause road rage;
  • The nature of working as a truck driver did not produce an inherent risk of an assault being committed by the employee;
  • The company did not afford the employee the opportunity to commit the assault as it happened on a public road as opposed to the company’s premises;
  • The victim was not a customer of the company and the employee did not stand in a position of power vis-à-vis the victim;
  • The assault did not advance the interests of the company; and
  • Imposing vicarious liability would be unlikely to have a deterrent effect as the company already warned its employees to avoid situations that could cause road rage.

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