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EMPLOYER’S LIABILITY.
Employers’ liability denotes duties which the employer owes at common law
towards persons he/she employs. It can be the liability of the employer to pay
damages to his servant for personal injuries which the servant has sustained
while in the ‘course of employment’.
In tort, employer’s liability refers to the duty imposed upon the employer to take
reasonable care to ensure the employees’ safety.
There are two ways by which the employers’ liability arises:
 The employers’ personal liability
Where the employer is personally liable as a result of an accident which is due
to his own acts or faults.
 Vicarious liability
Liability of the employer for acts of his employees in the course of their
employment.

Historical development of employers’ liability

It started in 1837 (early 19th C). This period was dominated by the economic
theory of ‘Laissez fare’. Under this theory, the welfare of the community was
served by living each individual free to pursue his own interest. The status of
employer’s liability under that theory can be found in PRISTLEY v. FOWLER
(1837) 3 M & W 1. In this case, the plaintiff was employed by the defendant
(butcher). The plaintiff was instructed by the defendant to deliver goods which
were overloaded in the van by another employee. The Van broke down and the

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plaintiff fractured his thigh. The plaintiff sued the defendant claiming to be
compensated for the damage caused to him.
It was held that the defendant was not liable because the act was due to
negligent act of overloading the van by another servant.
This was therefore the first case recorded to have established the doctrine of
common employment.
The doctrine of common employment excluded/relieved the master from liability
for injuries caused to his servant by negligence of a fellow servant whom they
are engaged in common employment.
Several authors have commented on the basis of this decision:
✓ It was the age of ‘Laissez fare’ which required servants to take care of
their own safety.
✓ The contract of service (assumption) contained an implied term that the
servant agreed to run a risk incidental to the employment including the
risk for negligence on the part of his fellow servant. This reason was, to a
great extent, recognised by the court.
✓ There was an assumption that, it was necessary to limit the liability of the
master (why?) because industries were at the earliest stage of
development. Due to low level of science and technology there were many
industrial accidents hence compensation to victims of a vast number of
industrial accidents appeared to place a heavy financial burden on
employers which could put a break to economic development. Thus, the
vast of those industrial accidents remained uncompensated.
Also, In the case of Bartonshill Coal Co vs. Reid (1858)3 Macq. 266, the court
agreed with the application of the doctrine of common employment. It rejected
the argument that the employee agreed to take the risk of negligence on the part

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of the employer himself. Until 1880 compensation to workmen (employees) who

were injured from employment was through a common law action.
The plaintiff was required to prove negligence on the part of the employer.
But recovery of damages was limited by the following constraints:
The defences available to the employer such as;
 Contributory negligence on the part of the employee,
 The doctrine of Volenti Non fit Injuria,
 The doctrine of common employment.
The right of action was personal to the injured employees hence died with him.
In the 19th C more changes in favour of employees occurred.
These were facilitated by the interaction between;
 Public opinion
 Legislative policy; and
 Judicial function
In England, the Employer’s Liability Act of 1880 to a great extent limited the
application of the doctrine of common employment. The employer was made
liable for any personal injury caused to an employee by any defects in ways of
employment.
The National Insurance (Industrial Injuries) Act of 1946 was also passed to
compel Insurance of Servants against personal injuries arising out of and in the
course of employment.
Generally, in 1948 the doctrine of common employment was abolished by the
Law Reform (Personal Injuries) Act, 1948 vide Sec. 1(i).
In Tanzania the Doctrine was abolished by the Law Reform (Fatal
Accidents and Miscellaneous Provisions) Ordinance (CAP 360) Part VI
Sec. 13 together with Part V Section. 11.

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The influence of the judiciary in the development of employer’s liability appeared

due to efforts of courts in limiting the application of the doctrine of common
employment.
In Smith vs. Barker (1891) Ac 325 it was stated that in the contract of
employment the employer is required to take reasonable care to provide adequate
and safe system of work and maintain them in a proper condition. Also, that the
employer is required to carry out his operations so as not to expose those
employed to unnecessary risks.
Thus, here the court is imposing a duty to take reasonable care on the part of
the employer.
In 1912 Lord Shaw In Battler (Black) And Another v. Fife Coal Co Ltd
(1912) AC 149 described the duty of the master at that ‘the master is only
responsible for the performance of such duties as he can reasonably be supposed
to undertake in person such as the provision of competent staff of men and
women, adequate material and a proper system and effective supervision.
In 1938 the employers’ duty was redefined in Wilsons & Clyde Coal Co vs.
English (1938) AC 57 where Lord Wright held the duty to be three-fold:
 The provision of competent staff
 Provision of adequate material
 Provision of proper system and effective supervision
The Employers’ Liability concept is confined in a situation where there is
Employer-employee relationship (contract of service);
In distinguishing between the contract of service and the contract for services
there have been tests which have endeavoured to make a clear distinction
between the two. They include ;

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❖ Control test
❖ Organizational test
❖ Multiple test

Control test
This test distinguishes a servant (employee) from an independent contractor.
 The question here is whether the employer has sufficient control over the
manner the work is to be done.
 The master has the right to order or refuse what should be done and how
it should be done.
In the case of Yewens vs. Noakes (1880) 6 QB it was held that a servant is a
person subject to the command of his master as to the manner in which he
should do his work.
Also, in the case of Gould vs. Minister of National Insurance and Another
(1951) 1 ALL ER 368
Things that point to the existence of control:
 Power to select the servant
 Payment of wages and other remunerations
 The right to control the method of doing the work
 The employers’ right to suspend, dismiss or take disciplinary
proceedings.
The control test has come under criticism especially in cases of skilled or
professional people.

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Lord Parker in Morren vs. Swinto (1965) 1 WKLR 576 at p. 582 said ‘clearly
superintendents and control can not be a decisive test when one is dealing with
a professional man or man of some particular skill and experience.
Instances of such kind have been in the form of master of a ship and
Engine driver or a professional architect.
In such cases there can be no question of employer telling him how to do the
work.
In the case of LANE V SHIRE ROOFING COMPANY (1995) IRLR 493 at 495
the Court of Appeal recognised this
“First, the element of control will be important; who lays down what is to be
done, the way in which it is to be done, the means by which it is to be done, and
the time when it is to be done? Who provides (hires and fires) the team by which
it is to be done, and who provides the material, plant and machinery and tools
used?”
In situations which lacks clarity as whether a person is an employee or self –
employed the court have reiterated to apply control test to determine the fate of
the employee. The control exercise need not be done directly. In MOTOROLA
LTD V DAVIDSON;, Melville Craig Group Ltd [2001] IRLR 4 concerned an
individual who was engaged by an agency to work at Motorola‟s premises. The
individual was dismissed by the agency at the request of the company. The
level of the control, even though exercised by a third party, was sufficient to
establish an employment relationship between the company and individual.

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The organisational test

This is sometimes termed as “Integration test”. Sometimes it is difficult to
establish categorically the nature of employment relationship just by looking on
control test.
Some of employees, because of their professional skills, the employer cannot be
said to be controlling each and every conducts of such employees.
Was evolved in the case of Stevenson, Jordan and Harrison Ltd
vs.McDonald (1952) 1 TLR 101, Denning LJ ‘Under a contract of service a man
is employed as part of the 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’
◼ Under this test, skilled persons and professionals qualifies as employees
although the employer has no control over the manner in which they
discharge their duties.
◼ The major difference between this test and control test is that there is still
an element of control, while under the control test the employer controls
‘how’ the work is done under the organisational test the employer controls
the ‘when’ and ‘where’.
In the case of Cassidy vs. Ministry of Health (1951) 2 KB 343, Lord Justice
Somervell pointed out that there are many contracts of service where the master
cannot control the manner in which the work is to be done as in the case of
captain of ship.
Lord Justice further stated that under the contract of service a man is
employed as part of the business whereas under the contract of services his work
although done for the business is not integrated to it but only accessory to it.

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A good example of a situation where an organizational test can easily

be tested is in Hospital workplace.
 It is hard to see how the hospital management can exercise control over
doctors who in surgical room.
 The only visible possibility of control here is in selection process other than
in operation.
However, it has to be distinguished here between a doctor who has been hired
as an expert for a certain specific task (Independent contractor) and one who
is employed as an employee.

The Multiple Test

This test proposes that, all factors must be taken into account. The test can be
found in: Mixed Concrete (South East Limited) vs. Minister of Pensions and
National Insurance (1968) 2 QB 497. The court said that, a contract of service
is said to exist if the following conditions exist: The servant agrees that.
In consideration of wage or other remunerations, he will provide his own work
and skills in the performance of some service of another.
In the performance of that service, he will be subject to the others control in a
sufficient degree to make that other a master (employer)
The other provisions of the contract are not inconsistent with it being the
contract of service.
 The test is the combination of the control test and organisational test.

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Several factors are considered under multiple test in order to draw a

distinction between contract of service and contract for service.
These are like;
◦ The power of selection of employee by the employer
◦ The payment of wages by the employer
◦ National insurance stamps
◦ Income tax
◦ Holiday monies and pensions; and
◦ The power to suspend and dismiss
For the Tanzanian position provided in the case of : DPP vs. Eliatosha Moshi
and another (1983) TLR 143. The Liability of employer is also limited to acts
done and injuries sustained by employees in the course of employment

 What amounts to ‘the course of

employment?’
The servant is acting in the course of employment:
o whenever he is doing the work of his employer
o When the act done is incidental in performing something which only
concerns the business of the employer.
o There is no single universal test that determines whether the act is
done in the course of employment or not.
o In Station vs. National Coal Board (1957) 1 WLR 893 it was held:
in bringing the action within or without the course of employment a
broader view of all surrounding circumstances in each case must be
considered.

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 How is employers’ liability enforced?

The injured employee can claim for compensation either under Common Law or
under Employees’ Compensation Statute.
Both ways aim at compensating employees who get injured while in the course
of employment.
Normally compensation is given in monetary terms.
The amount that is awarded is for the purpose of putting the injured employee
as nearly as possible in the same position as he would have been had he not
sustained injuries.
In Tanzania the employer’s liability can be enforced using:
 Common law principles
 The provisions of Occupational Health and Safety Act, 2003 (Act No 5
of 2003); and
 The provisions of the Workers Compensations Act, 2008 (Act No 20 of
2008)

The Occupational Health and Safety Act, 2003

The Occupational Health and Safety Act, 2003 provides for the safety, health,
and welfare of persons to ensure that employers in Tanzania are providing
employees with a safe working environment.
Owners of factories and workplaces are required to register their
buildings before use or occupation.
Section 15 of the act provides that there shall be a register of factories
and workplaces in which - the Chief Inspector shall enter such Particulars in

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relation to every factory and workplace as he may consider necessary for the
purpose of this Act.
Section 16 (1) and (2) of the Act is to the effect that before any person
occupies or uses as a factory or workplace any premises, which were not so
occupied by him at the commencement of this Act, that person shall apply for
the registration of premises.

 Procedures for registration

The procedures for registration are provided for under section 17 of Act No 5
of 2003. According to Sec 17(1) the law is to the effect that subject to the
Provisions of section 16, such person shall send to the Chief Inspector a written
application containing the particulars set out in the First Schedule to this Act
together with the prescribed registration fees.
Also, section 17(2) stipulates that where the Chief Inspector is satisfied
that the premises are suitable for use as a factory or workplace, he shall register
the premises and shall issue to the applicant a certificate of registration in the
form set out in the Second Schedule to this Act.
However, despite the fact that a workplace or premise may have been
registered Sec 17(3) is to the effect that there is a control mechanism by issuing
the compliance licence in the form set out in the Third Schedule to the occupier
of a factory or workplace every twelve months, upon fulfilling occupational health
and safety requirements and on payment of the prescribed compliance license
fee.
The law further under section 17(4) empowers the Minister upon
consultation with the Minister for Finance, prescribe fees for registration and for
compliance referred to in this section.

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Section 17(5) makes it an offence to any person who, occupies or uses as

a factory, or workplace any premises, without a certificate of registration or
compliance licence and upon conviction shall be liable to a fine of not less than
one million shillings, and not more than five million shillings or to imprisonment
for a term not exceeding twelve months, or to both, and if the contravention in
respect of which a person was so convicted is continued, commits a further
offence and upon conviction is liable to a fine not exceeding one hundred
thousand shillings, for each day on which the offence was continued.

 Refusal of registration
The chief inspector may refuse to grant registration upon application but he is
supposed to put grounds of refusal in writing.
✓ Section 19(1) of The provisions of Occupational Health and Safety Act,
2003 (Act No 5 of 2003), the Chief Inspector may after consideration of
the application for registration grant or refuse to issue a certificate of
registration or compliance licence to the applicant.
✓ Sub section 2 of section 19 is to the effect that where the Chief Inspector
refuses to issue a certificate of registration or compliance license, under
subsection (1), he shall state in writing the grounds for the refusal.

 Safety provisions
Safety provisions are provided for under Part IV of the Act which runs from
section 24 to section 53 of Act No 5 of 2003;
For instance, section 24 deals with medical examination, section 27 deals with
safety devices.

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 Health and welfare provisioning

Part V deals with health and welfare provisioning which runs from section 54
which deals with supply of drinking water, section 55 deals with sanitary
conveniences.
Section 56 deals with Washing Facilities; accommodation for clothing is
provided for under section 57 of the Act; first aid facilities are provided for under
section 58 of the Act.
Moreover section 59 of the Act provides that the owners of the factories
or working places shall be provide and maintain for the use of all workers whose
work is carried while standing, suitable seats to enable them to take advantage
of any rest period which may occur in the course of their employment.
Generally
According to section 55 (1) Sufficient and suitable sanitary conveniences shall
be Provided for persons employed in a factory or workplace and shall be
maintained and kept clean and effective Provision shall be made for lighting the
sanitary convenience.
Section 56 (1) states that there shall be Provided and maintained for the
use of all persons employed adequate and suitable facilities for washing which
shall be kept in a clean and orderly condition.
Section 57 (1) There shall be Provided and maintained for the use of all
Persons employed adequate and suitable accommodation for clothing not worn
during working hours. Sub section 2 is to the effect that separate changing
rooms for each sex equipped with individual clogging clothes facilities shall be
provided and properly maintained.

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According to section 58(1) there shall be provided and maintained a first

aid box or cupboard to the prescribed standard and the first aid box or cupboard
shall be distinctively marked ''FIRST AID'' having only appliances or stocks of
first aid equipment.
In addition, section 58 (2) is to the effect that each first aid box or
cupboard shall be placed under the charge of a responsible person who has
received first aid training from a recognized institute and who shall always be
readily available during working hours. Also sub section 3 further stipulates that
a notice shall be affixed in every work room stating the name of the person in
charge of the first aid box or cupboard provided in that section of the works.
Lastly under section 58 (4) of the same section where an injured person
requires further medical attention, as the case may be, a reliable and suitable
means of transport shall be provided to transfer the injured person to the nearest
medical facility.

o Safety Special Provisions

Under Part VI provides for Safety Special Provisions: also see sections 60-65 of
Act No 5 of 2003.

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DOCTRINE OF VICARIOUS LIABILITY

The principle of vicarious liability is deep-rooted in common law. Its origin may
be found in early medieval law, although it began to assume a crucial role in
the post-medieval period particularly, as commerce grew.

Though the doctrine has its roots in the earliest years of the common law, it
was Sir John Holt, C.J who began the task of adapting medieval rules to the
needs of modern society, and his work was continued by the great Victorian
Judges.
By the beginning of the 20th Century, it was steadily established that, the
master's liability was based not on the fiction that he had impliedly command
his servant to do what he did, but on the safer and simpler ground that it was
done in scope or course of his employment.

In Tanzania, the doctrine of vicarious liability is recognized even under

customary law. This position is to be found in the decision of East African Court
of Appeal, in the case of Kibaka v. Kitonto (1965) E.A 278, that decision was
adopted by the late Maganga J. as he then was in the case of Mariba Wanyangi
v. Romare (1977) L.R.T no.9, Mwalusanya J. Also In the case of Salim
Ramadhani v. Iddi Bakari Busa (Civil Case No.71 of 1992), quoted the two
cases with approval holding many of our tribes including warangi tribe recognize
the doctrine of vicarious liability1.

1
Binamungu, C.S (2004), Law of Torts in Tanzania ,Research and Publication Department, Mzumbe University,

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Rationale of the Rule VICARIOUS LIABILITY

First, the employer is in a better position to absorb the legal costs either by
purchasing insurance or by increasing his prices. This is evident in Tanzania
under the Workers' Compensation Act, whereas every employer is required to
take an insurance cover to keep himself insured and maintain an insurance
certificate throughout his operation.
It has been argued that, vicarious liability is a common sense rule, for
employees are usually people of meagre means, thus it is only fair for an injured
party to seek compensation from those who control and profit by the organisation
in which he is employed. That justification is what constituted the idea of "deep
pockets", this proposition is found in the words of Lord Wilberforce in
KOORAGANG LTD v. RICHARDSON & WRETCH LTD. [1982] AC 471
Secondly, the burden of such liability on the employer encourages him to ensure
the highest possible safety standards in managing his business.
Thirdly, the employer commands or exercise control over his employees
therefore, he is responsible for the acts of the latter. Thus, however, this is a
demonstrable fallacy because in many cases the employee is more skilled than
employer (example; doctors, pilots, lecturer) and so cannot be said in any
meaningful senses that employer has control.
Fourthly, when the employer is careless in selecting an employee who
discharges his duties negligently thus, the employer must accept the
responsibility because, by selecting negligent employee, he set in motion the
trend of events.

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Fifthly, the employer derives benefit from the service of his employee, so it is
only right that he takes the burdens as well.
Finally, by imposing liability on the employer, the employer is thereby given an
incentive to ensure that the event does not occur again and that none of his other
employees do the same thing.

❖ SITUATIONS WHICH AN EMPLOYER MAY NOT

BE LIABLE FOR ACTS OF HIS EMPLOYEES.

An act of violence will usually take the employee outside the scope of employment
and the employer will not be liable. In Warren v Henlys Ltd [1948] 2 All ER
935, a petrol pump attendant assaulted a customer during an argument over
payment for petrol. It was held that, the employer was not liable. Likewise, if an
employer allows an employee to use the employer's vehicles for the employee's
own use, the employer will not be liable for any accident that may occurs.

FROLIC:
The court will not hold the master liable if it is shown that the servant committed
tort while on the frolic of his own: that is, he did the wrong when doing his own
business. This position is well illustrated by the case of Macheme Kaskazini
Corporation Ltd. (Lambo Estate) v. Aikaeli Mbowe [1984] T.L.R. 70 (CA). CA.
In this case, the respondent sued the appellant and his employer jointly and
severally, in negligence for damaging his house and goods. The appellant's
employee, after working hours, used the car of his boss to visit his relative. On
his way back crashed into the house of the respondent.

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The Court of Appeal observed that Simon was not engaged in his
employer's business at the material time; and that, the visit to his relative had
absolutely no connection with his employment. His driving the vehicle was
unauthorised act outside the scope of his employment. One has to take a note
that, unauthorised and improper methods of performing a central task do not
take an employee outside his course of employment. Under the case of Century
Insurance v. Northern Ireland Transport Board [1942] Ac 509.

DETOUR:
In this, the master is not liable for the wrongs committed by his servant when it
is established that, the servant was in detour: that is, he did not follow the exact
route instructed by the master. In Ssembati V. Uganda Enterprise Co Ltd &
Another [1970] ULR 561 (CA), the defendant was a driver driving transit goods
from Uganda to Kenya, employed by Uganda Enterprises Co Ltd. He was once
given copper from Kilembe mine to Nairobi-Kenya. On arriving in Kenya, the
defendant hired maize to be taken to one Kugis residing at Bukoba.
This was contrary to instruction given by his employer and he was prohibited
from hiring any goods not owned by his employer. On the way to Bukoba, after
arriving at Mutukura, he caused injuries to the child of the appellant who was
playing along the road. The Court of Appeal of Eastern Africa found out that the
driver deviated at the high degree on driving to Tanzania and since the driver
was an abled person was to pay the damages on his own and not via employer.
However, the courts have reluctantly observed the above rule.
For example, in the case of Karisa And Another v. Solanki And Another
(1969) EA 318, the court held that, although the driver did not follow the exact

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instructions the employer was still liable because the evidence showed when the
driver committed the tort it was for the joint benefit of the owner and himself.

PROHIBITION;
Sometimes a prohibition imposed by an employer on an employee will limit the
scope of employment. Thus, in Twine v. Bean's Express Ltd (1946) 62 TLR
155, a prohibition against drivers giving lifts to hitchhikers was held to limit the
scope of employment. However, this was not considered relevant to Rose v.
Plenty [1976] 1 WLR 141, since Rose was not a mere passenger being given a
lift, but he was the method by which plenty did his job. In the case of
Randy Hall v. Darren Craig Dorsey (1919), it was held that, to exonerate
themselves from liability, masters have to show that the conduct of servants in
particular instance was distinctively remote and disconnected from his
employment so as to put (servants) virtually strange. This has always been
difficult for employers to prove.

Employer/independent contractor relationship:

The common law distinguishes between classes of persons described respectively
as employees and independent contractors.
This distinction is required to be made for a variety of purposes including the
applicability of the doctrine of vicarious liability, where in exclusive
circumstances; the employer is made liable for the torts of independent
contractors as well.

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