Vicarious liability

Vicarious liability – does it affect me?

What is vicarious liability?

Vicarious liability occurs where a person can be held liable for the actions of another person. Under the Wildlife and Natural Environment (Scotland) Act 2011 a landowner, shooting business or manager can be held criminally liable for the actions of their employees, contractors or agents.

This applies to the following offences:

• Killing, taking or disturbing wild birds and their nests.
• Prohibited methods of killing and taking.
• Possession of pesticides.

Does vicarious liability affect me?

• Do you employ a gamekeeper?
• Do you outsource pest or predator control?
• Do you lease shooting on your ground?

If the answer to any of these questions is Yes, vicarious liability affects you.

In order for vicarious liability to apply there must be other people involved. If YOU commit an offence YOU will be liable.

There must be an element of management, control or instruction for it to apply.

Consenting, conspiring or neglecting activities can lead to you being vicariously liable.

What can I do about it?

To defend yourself against vicarious liability you must be able to show that you did not know the offence was being committed and that you took all reasonable steps and exercised due diligence to PREVENT the offence being committed.

This can include:

• An appropriate contract.
• Clear instructions and division of responsibility.
• Prohibition of illegal activities.
• Providing best practice guides.
• Regular updates and training.
• Provision of general licences.
• Annual reviews and spot checks.

For further information and guidance please contact the BASC Scotland office on 01350 723226. BASC Scotland advises members to seek legal advice for individual employment contracts. Scottish Land & Estates provides a due diligence and good practice guide at a cost of £30. Contact their office on 01316 535400 for more information.