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Vicarious Liability

Definition
A situation where an employer is responsible for damages
caused by the torts of his employees to a third party while
acting in their course of employment.
Strict Liability

Joint Liability

- An employer will be liable irrespective of


fault.
- Even if an employer has nothing to do with
the tortious act, he will be held liable.
- Both employer and employee can be held
liable for the tortious act.

Why is it imposed?
1. Control of employees
- An employer is in control of the conduct of his
employees.
- Thus, an employer should be made liable/responsible
for his employees acts.
2. Benefit and burden principle
- An employer benefits from the work of his
employees.
- Therefore, an employer should also be made liable
for any damage caused by the employees in the
course of their employment.
3. Deep-pocket argument
- An employer will be in the best financial position to
meet a claim as an employer has the resources
(money).
- An employer is best able to absorb loss; they are
often insured.
- Thus, third parties should sue an employer and not
his workers.
4. Recruitment
- Any tortious act committed by an employee indicates
that the employer is negligent in selecting his
employees.
- Therefore, an employer should be responsible for his
employees tortious act.

5. Promotion of care
- To promote care and ethical work practice by
employees so they do not easily turn a blind eye.
- Encourages higher standards of safety.
Elements
1. The tortfeasor must be an employee of the master
(employer)
- Employer: somebody who has the right to hire and fire.
- It must be determined that a person is an employee and
not an independent contractor.
- Full time indicates that a person is an employee.
- There are three tests to help determine who an
employee is:
i. Control test
- The test was laid down in Short v J & W Henderson
where Lord Thankerton listed the four factors to be
considered:
i)
Power of selection by the employer
ii)
Power in determining salary or other
remuneration
iii) Power of right of the employer to control the
method in which the work was done
iv) Power and right of the employer to terminate
the employees services
- The degree of control exercised over a persons work
by the employer is looked into.
- Where the employer had control over the work
and was in such a position to determine how,
what, and when tasks should be done.
- E.g: Helpful in determining whether a factory
worker is an employer.
- If a person is engaged to do a particular work, but
has discretionary power on how, what, and when a

task is to be done, such person is an independent


contractor.
- Thus, vicarious liability does not apply.

ii. Business integration or Organisation test


- The test was established in Stevenson, Jordan &
Harrison v MacDonald Evans where a distinction
between a contract for service and contract of
service was made.
- A person in a contract of service: employee
- A person is employed as part of the business
and his work forms an integral part of it.
- A person in a contract for service: independent
contractor
- Although work is done for the business, it is not
integrated into it, but is only accessory to it.
iii. Multiple test
- The test was established in Ready mixed Concrete
Ltd v Minister of Pensions & National Insurance where
three factors need to be fulfilled in order for there
to be a contract of service:
i) Employee or servant agrees that he will use his own
expertise and the employer pays him in monetary form or
any other remuneration.
ii) Employee or servant agrees that he will be bound by the
employers instructions.
iii) All other conditions in the agreement are consistent with
the nature of the job being a contract of service.
- Special rules:
i) Health authorities
- Nurses, radiographers, house-surgeons, and
assistant medical officers are employees of the
hospital for purposes of vicarious liability.
ii) Borrowed employees

- The principle as laid down in Mersey Docks &


Harbour Board v Coggins & Griggiths (Liverpool)
Ltd is:
- If B, an employee of A, is lent to C, and B
subsequently commits a tort, A will be
vicariously liable for the tort committed,
unless A has stripped himself of all
possession and control.
2. The employee must have committed a tort.
- In Imperial Chemical Industries v Shatwell, it was
established that for an employer to be vicariously liable, a
tort must have been committed by the employee and all
the elements of the particular tort must be satisfied.
3. The tort must have been committed in the course of
employment
- Acting in the course of employment:
i)
The act is a wrongful act authorized by the
employer
ii)
It is an unauthorized manner of doing something
which is authorized

Negligent and careless acts:


The employer will not be liable if the employee is careless in
doing something that he is not employed to do.
- Century Insurance Co Ltd v Northern Ireland Road
Transport Board
The court held the defendant (employer) vicariously liable
for the act of his employee throwing a burning match onto
the ground and causing the plaintiffs property to be
destroyed in the course of his employment as it was an
unauthorized manner of performing his task of delivering
petrol.
- Ilkiw v Samuels

The court held the defendant vicariously liable for the


injury of the third party that arose from the employees
negligent conduct as a driver within the course of his
employment in allowing the third party to drive the lorry.
Frolics and detours:
Acts done not for the employers benefit or for the employees
own personal benefit is considered as a frolic and detour.
- If an employee engages in a task for his own personal
benefit, the employer will not be vicariously liable for any
tort committed during such period as it is outside the
course of employment.
- Storey v Ashton
The court held the defendant not vicariously liable for the
plaintiffs injury as the tort arose from the act of the
employee taking a detour to run his own errands when he
should have been delivering wine from a cart.
Prohibitions by employer:
An act may be within the employees course of employment
even though it has been expressly forbidden by the employer.
For it to be so:
- The act must be related to the employees job
- The act must be done for the benefit of the employer
- Limpus v London General Omnibus
The court held the defendant vicariously liable for the
plaintiffs injury as the act of the employee obstructing a
rival bus was in the course of his employment even
though the employer had printed specific instructions not
to obstruct other bus drivers, as the act was related to his
job, and as he was still driving with passengers.

- Iqbal v London Transport Executive


The court held the defendant not vicariously liable for the
plaintiffs injury as the employee was a bus conductor,
who is prohibited from driving the bus, thus making the
act not within the course of his employment.

- Rose v Plenty
The court held the defendant vicariously liable for the
plaintiffs injury as the tort occurred while he was
delivering milk, which is within the course of his
employment, and the prohibition of employing boys only
affected the manner or method in which the worker was to
perform his duties as a milkman.
- Twine v Bean
The court held the defendant not vicariously liable for the
hitchhikers death that arose from the employees act of
giving the hitchhiker a lift, as the employee had been
expressly forbidden by the defendant from doing so, thus
making the act outside the course of his employment as it
was not for the defendants benefit.
Employers Indemnity
An employer has a right to claim indemnity for the loss
attributable to the employees breach of contract.
- Sec. 10, CLA 1956: permits contribution from an employee
who is or would, if sued, have been liable in respect of the
same damage, whether as a joint tortfeasor or otherwise.
- Lister v Romford
The plaintiff suffered injuries from the negligent conduct of
an employee to which the bus company was vicariously

liable for, and therefore the plaintiff claimed compensation


from the bus company, who then claimed indemnity from
the employee.
Defences
1. Contributory negligence
2.

Volenti non fit injuria