Vicarious liability is where someone (usually an employer) is liable for the actions and/or omissions of another person (usually an employee) that occur in the course of employment.
When looking at this in a medical negligence context, a hospital is the employer and they are liable for the actions and/or omissions of their employees (doctors, nurse and administrative staff) that occur in the course of their employment.
Elements of vicarious liability
Certain elements need to be satisfied for a patient (called the Plaintiff) to sue the hospital due to the negligence of one of its employees.
- The employee needs to be employed by the hospital.
- The Plaintiff must prove that there was actual negligence by the employee.
- The negligence occurred during the course of employment.
- The employee practised within their scope of employment.
Vicarious liability does not mean that the employee can’t be named as a second defendant and be liable in his/her own right. It is common for most medical negligence claims to list both the employee’s name (usually a doctor) and the hospital as co-defendants.
Defences to vicarious liability
A hospital may try to make use of a defence so that they are not liable for a person’s negligence:
- There is no employer-employee relationship because the person is a subcontractor practising in their own right.
- There is no negligence.
- The alleged negligent act did not occur during the course of the person’s employment.
- The person did not practice within their scope of employment.
If a hospital is found to be vicariously liable for a medical negligence claim due to the negligence of one of their employees, the hospital may take action to recover damages that were paid to the Plaintiff due to the actions of their employee. This is why it is recommended that all medical professionals obtain their own professional indemnity insurance.