Volunteers' Liability

Lyaiera

I've been having a think about this today. For a volunteer with an organisation should the volunteer seek the organisation to indemnify them against any action? I'm not sure if that's the correct way of phrasing but I mean should the volunteer seek a legal guarantee that the organisation will cover any awards the volunteer may have to pay should the volunteer be found against in a legal action from their time acting on behalf of the organisation?

Wouldn't it be possible (although difficult) should both the organisation and volunteer be sued for the organisation to claim that it was entirely the volunteer at fault and not the organisation in an attempt to limit their negligence (taken as given vicarious liability, etc.)

3DataModem

I don't see why... an employer doesn't indemnify it's employees against legal action they may be subject to as a result of their work duties.

Lyaiera

3DataModem wrote: »

I don't see why... an employer doesn't indemnify it's employees against legal action they may be subject to as a result of their work duties.

Many volunteer directors ensure that Director's Insurance is taken out in their name as a form of indemnification. Is this purely down to scale and likelihood of action rather than a principle.

ResearchWill

3DataModem wrote: »

I don't see why... an employer doesn't indemnify it's employees against legal action they may be subject to as a result of their work duties.

An employer does not need to because of the doctrine of Vicarious liability. As long as an employee is acting for an employer the employer is liable.

3DataModem

ResearchWill wrote: »

An employer does not need to because of the doctrine of Vicarious liability. As long as an employee is acting for an employer the employer is liable.

Civil cases yes, criminal cases no.

Lyaiera

ResearchWill wrote: »

An employer does not need to because of the doctrine of Vicarious liability. As long as an employee is acting for an employer the employer is liable.

Vicarious liability doesn't indemnify the volunteer though, it merely provides the deep pockets of the employer. Then the issue becomes whether the liability is joint and/or several.

ResearchWill

3DataModem wrote: »

Civil cases yes, criminal cases no.

No one can provide indemnity for criminal acts, I assume we are not asking can volunteers or an employee be indemnified for robbing a bank, only can they be indemnified for negligence.

ResearchWill

Lyaiera wrote: »

Vicarious liability doesn't indemnify the volunteer though, it merely provides the deep pockets of the employer. Then the issue becomes whether the liability is joint and/or several.

If the volunteer is classed as an employee and commits a civil wrong on the instruction of the employer then the employer is liable, end of. If a volunteer is driving a bus and the bus crashes then the employer is liable for the negligent acts of his employe, if the employee is using the bus to bring cocaine across the border with or with out employers knowledge then no indemnity is going to protect him.

A good upto date case on the issue http://www.bailii.org/ie/cases/IESC/2011/S8.html paragraphs 26 to 33.

Lyaiera

ResearchWill wrote: »

If the volunteer is classed as an employee and commits a civil wrong on the instruction of the employer then the employer is liable, end of. If a volunteer is driving a bus and the bus crashes then the employer is liable for the negligent acts of his employe, if the employee is using the bus to bring cocaine across the border with or with out employers knowledge then no indemnity is going to protect him.

I'm not sure what you're saying...

"If the volunteer is classed as an employee" surely the issue is whether the volunteer is an agent of the organisation for vicarious liability.

The agent crashes the bus acting under general instruction, the "organisation" is liable - I have no debate about that. The agent is also liable though, vicarious liability does not absolve/indemnify primary liability, it simply provides for secondary liability.

Edit: I looked at the paragraphs you mentioned in that case. I've only read what you suggested and that seems to be about establishing the employer's vicarious liability and not about removing the primary liability of the employer's subordinates. They are still liable, they simply haven't been pursued.

ResearchWill

Lyaiera wrote: »

I'm not sure what you're saying...

"If the volunteer is classed as an employee" surely the issue is whether the volunteer is an agent of the organisation for vicarious liability.

The agent crashes the bus acting under general instruction, the "organisation" is liable - I have no debate about that. The agent is also liable though, vicarious liability does not absolve/indemnify primary liability, it simply provides for secondary liability.

Ok let's use the old words for it is there a master servant relationship, does the event come under the Salmond test as set out in the case I quoted.


"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.
But a master … is liable even for the acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them."

Just because a person is not being paid does not mean the courts will not decide that there is a master servant relationship.

That is the very basic test. If there is an Agent principle situation then the rules of agency would apply which allows for viarious liability. If a volunteer is acting as an agent for a charity then a full indemnity clause should be inserted into the agency agreement, just to be sure.

Lyaiera

ResearchWill wrote: »

Ok let's use the old words for it is there a master servant relationship, does the event come under the Salmond test as set out in the case I quoted.


"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.
But a master … is liable even for the acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them."

Just because a person is not being paid does not mean the courts will not decide that there is a master servant relationship.

That's not what I was asking. The question of master/servant isn't at debate here. It can be taken that the master is vicariously liable for this volunteer servant's liability. The issue is whether the servant is loosely protected from having to pay damages on the basis it just doesn't make practical sense to go after the servant as they wouldn't have as much money as the master.

That is the very basic test. If there is an Agent principle situation then the rules of agency would apply which allows for viarious liability. If a volunteer is acting as an agent for a charity then a full indemnity clause should be inserted into the agency agreement, just to be sure.

That's what I was wondering. Would it be sound practice that the servant (a volunteer) has a clause in their contract in which the master indemnifies the servant (a volunteer.)

Edit: And I suppose are they standard practice when you volunteer with an organisation?

ResearchWill

Lyaiera wrote: »

That's not what I was asking. The question of master/servant isn't at debate here. It can be taken that the master is vicariously liable for this volunteer servant.



That's what I was wondering. Would it be sound practice that the servant (a volunteer) has a clause in their contract in which the master indemnifies the servant (a volunteer.)

Yes of course any such clause can be entered into any contract or even in a letter, while I can see it giving comfort.

To clarify while yes if an Employer is vicariously liable, the employee is to a legal extent liable, but the employer as he has the deep pockets gets stung. So in reality he pays, but say he can't afford to pay then the employee is yes still liable, but in this case the indemnity has no value as the employer is bust.

So my point is the only time an employee/volunteer would try and invoke the indemnity it may have no value.

Lyaiera

ResearchWill wrote: »

Yes of course any such clause can be entered into any contract or even in a letter, while I can see it giving comfort.

To clarify while yes if an Employer is vicariously liable, the employee is to a legal extent liable, but the employer as he has the deep pockets gets stung. So in reality he pays, but say he can't afford to pay then the employee is yes still liable, but in this case the indemnity has no value as the employer is bust.

So my point is the only time an employee/volunteer would try and invoke the indemnity it may have no value.

I could see scenarios where it would be useful. Possibly in a sound action based on vindictiveness and revenge rather than compensation.