Vicarious Liability

The term vicarious liability refers to the situation where X is liable to Y for damage caused to Y by the negligence or other tort of Z. it is not a fault based tort or a tort in its own right but a rule of responsibility which renders the defendant liable for the torts committed by another. The relationship is that of master servant or employer – employee.

It is a rule of convenience. Although the primary tort feasor is personally liable for his negligence, the claimant will however have the choice to sue the employer because he has the deeper pocket. The modern theory of vicarious liability is based not on fault but on consideration of social policy. A person who has employed others to advance his own economic interest should be held responsible for any harm caused by the activities of those employees and that the innocent X action should be able to sue a financially responsible defendant who can always take out an insurance policy against liability.

The vicarious liability of an employer is limited in application. To establish vicarious liability, the claimant must show,

The employee committed a tort.
The existence of an employer/employee relationship.
The employee acted in the course of employment when committing the tort.

Commission of a tort by a servant

The vicarious liability of the master arises only on the primary liability of the servant. Where it is impossible to prove affirmatively which one of several servants was negligent as far as liability of hospitals is concerned it has been established in Cassidy v. Ministry of Health that where the plaintiff has been injured as a result of some operation in the control of one or more servants and which the particular servant responsible cannot be identified the hospital will be vicariously liable unless absence of negligence can be proved. The claimant must prove that the employee’s conduct satisfies all the requirements of the tort in question.

The existence of an employer/employee relationship

The court draw a distinction between a contract of service or employment and a contrast for services where a person is employed as an independent contractor. Generally, an employer is not vicariously liable for the tort of independent contractor. A number of factors are used by the court which include

The terms of the contract

The courts have stated that they will not be governed by the wordings of the contract but will examined the substance of the contract. In Ferguson v. Dawson, it was agreed between the parties that workers employed on the building site would be "self employed labour only sub-contractor". The plaintiff haven been injured on the defendant‟ s building site sued for breach of statutory duty. The court held that the relationship was one of employer and employee and the defendants were liable. The defendants could dismiss, move, tell them what work to do and provided then with tools thus were employees and not independent contractor.

Control

The traditional test for determining this question is that of control. A servant or is a person employed by another to do work on the terms of his employer whereas a JC is his own master. A servant is to obey the employee’s orders from time to time while a JC exercises his own discretion as to the mode and time of doing it. He is bound to the contact but not by his employer’s order. In Collins v. Hertfordshire Hilbery J., held that in a contract for services, a master can order what is to be done while in a contract of service, a master cannot only order what is to be done but how it shall be done.

In an advanced technological age, employees are frequently expected to exercise discretion and initiative in their performance professionals with skill and experience do not expect to be told what to do and how to action each working day. E.g. Doctors, Pilots, etc Cooke J in Market Investigations v. Minister for social Security said that control will no doubt always have to be considered although it can no longer be regarded as the sole determining factor.

Organizational test

This test was explained by Denning LJ stating, under a contract of service, a man is employed as part of a business and his work is done as an integral part of the business whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it. Stevenson, Jordan & Harrison Ltd v. Macdonald & Evan Ltd.

The relationship as a whole/multiple test

The court must take into consideration a number of factors in addition to the terms of the contract and the control test. They include: (a) payment of wages and National Insurance contribution (b) an indefinite term of employment (c) a fixed place and time of performance (d) provision of equipment/materials by employer (e) degree of financial risk/investment taken by the worker (f) whether the worker can profit from his/her performance (g) whether the worker must hire his own assistants (h) whether the work is integrated or accessory to the business (i) whether there are mutual obligations on both parties. A contract of employment is indicated where there is an obligation on the employer to provide and pay for work and an obligation on the worker to be ready and willing to work. In Stephenson v. Delphi Diesel Systems Ltd, Elias J., stated that the mutuality is to determine if there is a contract in existence or not while control is to determine the type of contract (of/for) services. In Market Investigations v. Minister of Social Security, where part time interviewers working under short term contracts for a market research company were held to be employees because the their employers exercised extensive control over their work.

In Ready Mixed Concrete Ltd v. Minister of Pensions and National Insurance, Mckenna J held that arrangements to deliver ready mixed concrete by owner drivers per distance at fixed mileage rates were not contracts of employment. Although the vehicles had to be painted in company’s color, drivers were obliged to wear the company uniform and comply with the company’s rules, the fact that drivers took the chance of profit and bore the risk of loss indicated that the drivers were independent contractors

In answering the question on whether a contract is one of service or for service the SC in Shena Security Ltd v. Afropak (Nig) Ltd., where there were two separate oral contract whereby Afropak subsequently terminated the contract unilaterally, the SC held that where there is a dispute as to kind of contract the parties enter, the factors which usually guide a court include:

If payment are made by way of “wages”/”salaries” or by way of “fees”/”commission”.
Where the employer supplies the tools and other capital equipment, there is a strong like hood that the contract is that of employment service. But where the person engaged has to invest and provide capital for the work to progress.
Whether the contract allows a person to delegate his duties.
Where the hours of work are not fixed, it is not a contract of employment.
A contract which allows the work to be carried out outside the employer’s premises is move likely to be a contract for service.
Where an office accommodation and a secretary are provided by the employer, it is a contract of service.

This tests enumerated by the SC encapsulate the control test, organization test and multiple test.

Lending a servant

Where X, the general employer of Y, agrees to land Y to Z and whilst in the temporary service of Z, Y commits a tort, the general employer will remain liable unless he can prove that at the time the tort was committed, he had divested himself of all control over the servant. In Mersey Dock & Harbour Board v. Coggins & Griffith Ltd, the appellants employed Y as a driver of a crane and hired him together with crane to the respondent. In course of loading a ship, Y negligently handled the crane and injured a third party. It was held that it is not sufficient to show that the respondents controlled the task to be done but the manner it is to be done and where a man driving a mechanical device such as a crane, is sent to perform a task it is easier to infer that the employer continues to control the method of performance. The appellants were vicariously liable. In Rotimi v. Adegunle where the appellant hired a lorry along with a driver from the respondent to convey some logs from Ibadan to Abeokuta and in the course of the journey due to the negligence of the driver, the lorry collided with a tree thus injurying the appellant. It was held that the respondents were vicariously liable.

The more complex the machinery more likely the general employers will be found vicariously liable and where the employer is unskilled and loaned out in a labour only contract the stranger the possibility that the hires will be found vicariously liable

Lord Porter in Mersey Dock & Hawley v. Luminar Leisure, a night club was found to be vicariously liable for a doorman hired under a contract for the provision of security services where the doorman could be shown to be acting under the orders of the night club manager. In Viasystems (Tyneside) Ltd v. Thermal Transfer Ltd, the court held that where both employers exercised some form of control over the employee then both might be liable. The court outlined three alternatives. The general employer, the temporary employer or both employers are jointly liable.

The employee acted in the course of employment

It has been established that the employer cannot simply argue that the employee was not employed to commit torts and was therefore acting outside the course of his employment as it would undermine the whole concept of vicarious liability. The employee is held to be acting in the course of employment if his conduct is authorized by the employer, is considered to be an unauthorized means of performing the job for which he or she is employed (actions closely connected to the job for which the tort feasor is employed). The course/scope of employment will depend on the facts of each particular case. In Century Insurance v. NI Road Transport Board, a driver of a petrol lorry was held to be acting in the course of employment when he discarded a lighted match which he used to light a cigarette while delivering petrol which caused an explosion. Lighting a cigarette was held to be an act of comfort and convenience which would not be treated as outside the scope of employment.

A deviation or interruption from a journey taken in the course of his employment will unless incidental, take the employee out of the course of employment for the time being. In Whatman v. Pearson where the employee had against strict instructions chosen to travel home for dinner by horse and cart. His employers were held liable for the damage caused when the horse escaped due to the employee’s negligence. In Storey v. Ashton, the court held that an employee who after business hours had driven to a friend’s house was not in the course of employment thus the employer was not liable for injuries suffered by the plaintiff due to the employee’s negligent driving. In Smith v. Stages, where two employees who normally work in Staffordshire had been sent to South Wales to undertake emergency work drove back immediately an completion of the job without any sleep. The court held the employers vicariously liable for stages negligent driving as the men were still acting in the scope of employment. In Staton v. NCB, where an employee was held to be in the course of employment while cycling to his employer’s office at the end of the working day to collect his wages. It was held to be accidental to his office.

Even if conduct is expressly prohibited by the employer, it does not mean an employee has acted outside the scope of employment. Where the prohibition limits scope of employment, there is no VL. Where the prohibition limits the conduct in the course of employment, the employer will still be VL. In Limpus v. London General Omnibus Co, the company’s instructions not to race with or obstruct other buses had been disobeyed by one of its drivers which led to a collision with the plaintiff’s bus. The court held the company vicariously liable for the driver’s negligent actions as it was an improper and unauthorized mode of doing an act which he was authorized to do. In Rose v. Plenty, where a milkman had been warned not to allow children to assist him nor to allow passengers on his float. He however engaged the plaintiff age 13, to help him who was injured due to the milkman’s negligence. The court held that is the purpose of the prohibited act was to further the employer’s business the act was in the course of employment. In Twins v. Bean’s Express Ltd, where giving a lift to are or had not been a mode of doing that which the driver was employed to do. The defendant’s employers were held not liable to an unauthorized passenger who was injured as a result of the servant’s coreless driving.

Employers have been found liable for crime such as assault, theft and fraud which are also torts. In Poland v. John Parr & Sons, where the defendants were found liable for their employed assaulting a boy whom he believed had stolen a bag of sugar from his employer’s wagon.

In Lloyd v. Grace, Smith & Co, a firm of solicitors was found vicariously liable for the fraudulent activities of its managing clerk who had defrauded a widow of her property as they had given the employee actual or ostensible authority. In Lister v. Hesley Hall Ltd, a warden of a home for boys with emotional and behavioural difficulties had systematically sexually abused some of the boys under his care. The employers were held vicariously liable as the intentional tort was closely connected to he work the perpetrator was employed to do. To establish a close connection, the court examined the nature and purpose of the job as well as the circumstances and context in which the act took place.

In Dubia Aluminium Co Ltd v. Salaam, work undertaken by a solicitor for a client which assisted a fraud was found by the H of L to be closely connected to his work. In Mattis v. Pollock (Flamingo’s Nightclub), the court found the employers VL when a guest at a nightclub was stabbed by the bouncer outside the club. The court held that since the employee had been encouraged by his employer to keep order by violent behavior, the employers were VL for assault linked to the incident in the nightclub. In Att.-Gen of the British Virgin Island v. Hartwell, where a policeman shot at his partner and her companion after abandoning his post and duties in a fit of jealous rage. The court held that the police authorities were not VL for the vendetta.

Liability for action of independent contractors

The employer of an independent contractor is generally not liable for any tort committed by the contractor in the course of the job for which he is engaged. The law considers that since the employer cannot control the way in which the contractor does the work, it is the contractor alone who is in a position to guard against risk incidental to the work and thus answerable for any damage caused to third parties as a result of his failure to take due precautions.

Exceptions

Authorization of Tort: Where X authorizes Y to commit a tort, X will be liable for it as well as Y. In Ellis v. Sheffield Gas Consumers Co, where X employed a contractor to dig a French in a public street and Z, a passerby falls into the trench and is injured, both the contractor and X will be liable to Z in public nuisance.
Torts of Strict Liability: Where in the course of doing work for an employer, an independent contractor commits a tort in which liability is strict e.g. trespass, nuisance breach of statutory duty or the rule in Ryland v. Fletcher, the employer in some circumstances maybe liable for the conduct of the contractor. In Itambong v. Akonye, where the Ministry of Works of Eastern Nigeria was under a statutory duty to maintain a certain road. The ministry was held liable for injury done to a third party in carrying out excavations on adjacent land which constituted a trespass.