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Employee theft is a major problem.1 While the thief inevitably commits the tort of conversion,2 the prospects of recovering against him are low. Where the victim is a third party rather than the employer, a claim against the employer may be more attractive. Brink’s Global Services Inc v. Igrox Ltd3 confuses, distorts and widens vicarious liability to allow recovery against the employer vicariously in circumstances where recovery against the employer should have occurred via different means.
1. Claims against employers
With employee torts there are three routes to claim against the employer: first, vicarious liability for the tort; secondly, breach of a direct duty of care to the victim of the tort to select proper employees,4 and train and monitor them; or, thirdly, the employer may have a non-delegable duty to the victim, the performance of which the employer cannot delegate to another,5 so that, even if the employer has selected, trained and monitored its employees properly, the employee’s tort will place the employer in breach of this duty.