Vicarious liability

Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. 907 F. Supp. 1361, **36, citing 3 NIMMER ON COPYRIGHT § 12.04{A}{1}, at 12-70 (1995) The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee

Employers are liable, under the respondeat superior doctrine, for negligent acts or omissions by their employees in the course of employment (sometimes referred to as 'scope of employment'). To determine whether the employer is liable, the difference between an independent contractor and an employee is to be drawn. Since Hollis v Vabu [2001] 207 CLR 21, the requisite 'employer-employee' relationship is now established through the 'sufficient relationship' test which entails the balancing of several factors such as skill levels required in the job, pay schemes, and degree of control granted to the worker. For an act to be considered within the course of employment, it must either be authorized or be so connected with an authorized act that it can be considered a mode, though an improper mode, of performing it.

Courts sometimes distinguish between an employee's "detour" vs. "a frolic of their own". For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, whereas an employee acting in his or her own right rather than on the employer's business is undertaking a "frolic" and will not subject the employer to liability. The employer will be held liable if an employee does an authorized act in an unauthorized way.

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