Law of Tort/Employment Law - Vicarious Liability
INTRODUCTION
Vicarious liability as a principle in the law of torts places tortious liability on an employer for wrongs committed by their employee. However, for the employer to be found vicariously liable for the wrongs committed by their employee, there are established tests that must be met. Therefore, it will be the purpose of piece of writing to discuss the various tests or elements that must be satisfied for an employer to be found vicariously liable for the wrongs of their employee, with the aid of case law and simplified illustrations.
Definition=
Vicarious Liability is a principle established in both the law of torts and employment
law where an employer is found liable for the wrongs committed by the employee
during their course of employment
JUSTIFICATION
OF VICARIOUS LAIBILITY
Firstly,
it is important to understand the reasons or basis for the principle of
vicarious liability in the law of torts.
The
Deeper Pocket Notion: one reason for holding an employer
Vicariously liable for torts committed by an employee is that the employer is
believed to have a ‘deeper pocket’ which would make the employer in a better
position financially to compensate for any loss caused by their employee.[1]
Economic
Enterprise Factor: this factor propounds the idea that an
employer and an employee are deemed to be in a relationship of economic
enterprise, which the employee is expected to carry out. Therefore, the
employer financially benefits from the good labour of the employee while
carrying out their enterprise, in the same vain, an employer must financially
suffer the loss from the bad labour of the employee while carrying out their
enterprise. This only balances the scales[2].
Duty
owed to an Employer: in the case of Christabel Kaumba v Charles Mushintu[3] it was held that the
primary duty of an employer is to pay the employee their wages and in return
the employee must work for their wages. This simply denotes that an employee is
expected to work for an employer which would also mean that the employee must
obey instructions of their employer. That being said, it is reasonable that an
employee is not found directly liable for torts/offences committed while
carrying out their duties as instructed or expected by the employer, but the
employer themselves be liable.
ELEMENTS
OF VICARIOUS LIABILITY
1.
1. A TORT
MUST HAVE BEEN COMMITTED
In
order to even consider whether an employer can be found Vicariously Liable,
there must be proof that a tort was committed in the first place. After this
has been established the rest may then be considered.
2. 2. EXISTENCE
OF AN EMPLOYMENT RELATIONSHIP
Secondly, it must be established that the
individual who committed the tort in question is an employee of the employer
being held vicariously liable. i.e an employment relationship by the parties
must be established. The three (3) tests in establishing an employment
relationship as explained below;
THE CONTROL TEST: this test is often said to be most crucial or
important test to satisfy in order to establish an employment relationship.
According to this test, an employer must have sufficient or substantial control
over the employees work and type of work thus, most likely one is not an
employee where their work or job is not under the control of the employer. But
what exactly amounts to control?
Well,
in the case of Short
v JW Henderson[4] where the court was
invited to determine exactly what would amount to control. The appellant was a
dock labourer who was accidently injured by the respondent’s employee in the
discharge of cement bags from the motor vessel. Lord Thankerton cited with approval Lord Justice-Clerk’ four indicators in establishing an employment
relationship under the control test;
“The master must have the
power in selecting his servant. Secondly, he also had the power in determining
the wages or other remunerations of his servant. Thirdly, he has the right to
control the method on how the work is done. Lastly, the master has the right to
suspend or dismiss the services provided by his worker”
In
essence according to the above case control must mean; power to employ, power
to determine an individual’s wages, power to stipulate the method of working,
and power to dismiss them.
In
another case of Bradel
v Bakker[5]
the court held that “control involves the
capacity to direct the time, place and what exactly to work on including
providing the employee with tools and equipment to carry out the work”
However,
it is important to note that in determining whether the control test has been
met, one is expected to weigh and balance the factors. If the factors that
point to the party being an employee outweigh those that point to the contrary,
then the party is deemed to be an employee. What must be drawn out from the
foregoing is that this test requires that a party exerts substantial or
sufficient control over the other party.
The
case of Ready
Mixed Concreate v Minister of Pension[6] is instructive in that
regard. It demonstrates the need to weigh and balance the factors of the case
to establish whether the amount of control a party exerted over another is
substantial or sufficient to establish an employment relationship. the facts of
the case were that a Driver contracted with Ready Mixed Concrete for the
delivery of concrete. Their contract declared them an ‘independent contractor’
meaning they were not an employee. Further, the contract set out their wages
and expenses, the Driver was required to purchase their own vehicle, but the
vehicle was to be painted in the company’ colours, they would drive the vehicle
though under observance of certain company rules, the Driver was to personally
cover for all expenses such as fuel, repairs and anything incidental to the
foregoing. The Driver had no specific hours they were expected to work; they
were to work on their own time provided they be always available whenever the
company needed them.
Therefore,
the company filed to seek the courts determination of whether the Driver was an
employee thus eligible to benefit from the National Insurance Act 1965.
The
court held that an employment relationship exists when
“(1) A person agrees to
perform a service for a company in exchange for remuneration; and
(2) a person agrees,
expressly or impliedly, to subject themselves to the control of the company his
‘master.’ Including control over the tasks performance, means, time; and
(3) the contractual
provisions are consistent with ordinary contracts of service.”
Therefore,
the court ultimately held that the company did not have sufficient control over
the performance of the Driver’s work. the Driver had freedom to make decisions
over the vehicle, his own labour, paid for their own fuel and repairs. This therefore,
pointed that the Driver was not an employee but a mere independent contractor.
|
WEIGHING AND BALANCING THE FACTORS |
|
|
FACTORS THAT POINTED TO THE DRIVER BEING
AN EMPLOYEE |
FACTORS THAT POINTED TO THE DRIVER NOT
BEING AN EMPLOYEE |
|
They were contracted by the
company |
They bought their own vehicle |
|
Had to paint the vehicle in the company’s
colours |
They had no specific working
hours |
|
They would undertake tasks
directed by the company |
They were allowed to employ other
workers to do their job |
|
|
Bore the cost for any damages to
the vehicle |
|
|
Paid for their own fuel and
expense |
The
table demonstrates that the factors that pointed to the drive not being an
employee clearly outweighed the factors to the contrary therefore, they driver
was according not an employee.
THE INTEGRAL TEST: this
test was espoused in the case Stevenson Jordan
& Harrison limited v McDonalds & Evans[7] where Lord
Denning J.S., held that this test determines whether a party plays an
integral and essential part of the employers business and if they do, they are most
likely an employee. It involves looking at the party’ position and role in the employer’s
business, for instance, where they hold a titled office in the employer’s
business that would most likely suggest (strongly) that they an employee.
THE ECONOMIC DEPENDENCY TEST: this
test seeks to inquire on whose financial means the party relied on or dependents
on. This is to say, where a party solely relies on another party for wages or
money as salary for their service, it shall strongly suggest that the parties
are operating under an employment relationship.
What
must be observed is that these tests must be applied in the exact order they
have been presented. i.e where the control test is unable to out rightly
determine whether a party is an employee or not, the integral Test then must be
applied to determine whether the party’s responsibilities or roles in carrying
out the employer’s business or tasks were integral or as important so as to
label them an employee. Where the integral Test fails to provide a clear
standpoint on the subject, the Economic Dependency Test must then be applied,
if found that the party solely relied on the employer as a source of income
then the shall be deemed as an employee of the said employer.
[the
reader is also advised to check out section 3 of the employment code Act under
definition of Employment Relationship. The said provision provides for the
tests outlined above]
3. 3. TORT MUST
HAVE BEEN COMMITTED DURING COURSE OF EMPLOYMENT
After
establishing an employment relationship, the final element to satisfy is
proving that the employee committed the tort while or within the scope of employment.
This is to say the tort must be committed while the employee was carrying out
duties or responsibilities required of them by their employment. The table
below exemplifies this point.
|
IT IS WITHIN THE
SCOPE OF EMPLOYMENT WHERE THE EMPLOYEE COMMITS THE TORT ; |
IT IS OUTSIDE THE
SCOPE OF EMPLOYMENT WHERE THE EMPLOYEE COMMITS THE TORT; |
|
On the premises of the employer |
Outside the premises of the employer |
|
During their working hours |
Outside working hours; on holidays |
|
While carrying out a task by the employer |
While carrying out their own activities; frolic of their own. |
In
the leading Zambian case of Giogio Franschini and Motor Parts Industries v Attorney
General[8]
a government driver was tasked with parking a motor vehicle at 5pm in Lusaka during
a journey from Chipata. Contrary to these instruction, the employee drove the
vehicle during the night and was involved in an accident whereby he collided
with another vehicle and caused damage.
The
supreme court held that the employer was liable for the driver’s actions as the
driver, despite disobeying instructions, was acting within the scope of his
employment. It further held that where an employee was doing something he or she
was employed to do, the employer would be liable. It is important to understand
the ratio decidendi in this case; the
court seemed to have conceded that disobedience to an employer’s instruction
would exonerate the employer’s lability from any wrongs committed by the
employee, however, the court must also look at the reasonableness of those
instruction. In the case above the employee was instructed to park the vehicle
at 5pm in Lusaka, however, due to factors like congestion, inaccuracy of the
exact time one would reach Lusaka from Chipata, that instruction seemed
unreasonable. (a question to considered in understanding this point is- what if
by 5pm the driver could not find a parking spot would he just have parked on
the middle of the road?). with that said, the driver despite driving after 5pm
was regarded to be operating within the scope of employment.
The
holding in the above case is similar to that in Manfred Kabanda and Kajeema Construction v
Joseph Kasanga[9] where the Supreme Court
held that an employer cannot escape liability merely because their employee
disobeyed them. The Supreme Court, per
Gardener J.S., stated that:
“An instruction to a
driver not to carry unauthorised passengers did not limit his employment
therefore, the employer remained vicariously liable for any negligence on his part
unless there was specific proof to the contrary… the prohibition against giving
lifts to unauthorised persons did not limit the servant’s employment, which was
to drive the truck, but was merely a direction as to the method of doing so.”
From
the above it could be said that what renders an employer vicariously liable are
the following;
(1) Where
the employer expressly authorises the wrongful act committed by the employee;
(2) Where
the employer authorises an act, but the employee performs the job in a wrongful
manner; and
(3) Where
the employer expressly forbids the act, but the act can be shown to have been
committed in the scope of employment, or for the purposes of the employer’s
business
In
another case of GCD
Hauliers Zambia Limited v Trans-carriers Limited,[10] an employee who was instructed to drive fellow
employees from Ndola to Lusaka caused a road accident while driving the said
employees using the employer’s car. The employee who caused the accident was
not employed as a driver however. The Supreme Court, per Ngulube C.J., held that:
“When there is credible
evidence that an employee was actually authorised to perform tasks such as
driving fellow workers- which would ordinarily not be associated with his
designation or job title, such evidence cannot be ignored and it will support a
finding of vicarious liability if the worker was engaged on his employer’s business.”
Therefore,
even though the driver of the car was not employed as such, vicarious liability
was applied on the employer as the accident was committed in the course of the
employee’ employment. This is to say, even though their ordinary course of
employment would not allow them to drive the employer’s vehicles, the fact that
they drove one of the employer’s vehicles under an instruction by the said
employer made their action within the scope of employment.
In
yet another case of Lister v Hesley Hall[11] the house of Lords held that
the court will look at the closeness between the employee’s wrongdoing and the
nature of the employee’s employment. Thus, the court will examine if the
employee’s act is so closely connected with his employment and within what is
authorised or expected of the employee, to deduce if it would be just to hold
the employer vicariously liable.
The
case involved a warden employed to run the day to day activities of a boys boarding
school, this involved supervising and care of the boys, disciplining the boys inter alia. It was found that the warden
sexually abused some boys of the school, the employers were unaware of this
fact however. The warden’s abuse of the boys was administered in the context of
their disciplinary responsibility of the boarding school.
The
employer argued that they could not be vicariously liable for the warden’s
actions as they were not aware neither did they instruct any form of sexual
abuse done by the warden.
The
Court held that vicarious liability may arise even for the unauthorised actions
of the employee provided that such actions are done under the umbrella or in
the capacity of undertaking the role of an employee under the management of the
employer.
The
key test therefore is whether the tort was committed by the employee acting
during the course and scope of their employment
The concept of ‘frolic of
his own’:
As
already outlined above, the employer is only liable for the employee’s action
if the said actions are committed during the course of employment; therefore,
where the employee commits a wrong outside the scope of their employment they
are said to be on a ‘frolic of their
own.’
In
the case of storey
v Aston,[12]
the defendant had two employees (a clerk and a driver) who they instructed
to deliver wine. The two employees delivered the wine as instructed and rather
than returning to the employer, the clerk instructed the driver to move to the
opposite direction to pay a visit to the clerk’s relatives. Due to negligently
driving, the driver ran over the claimant during the course to the clerk’s
relatives, on return the driver caused an accident. Therefore, the issue was
whether the employer could be held liable for the actions of the driver and
clerk. The House of Lords determined that the driver was acting outside the course
of their employment as he went on a ‘frolic of his own’ when they diverted to
pay a visit to the clerk’s relatives. Thus the employer was not vicariously
liable for the actions of the driver.
As already discussed, an
employer is vicariously liable for actions done by their employee as a general
rule. However, it follows that if an employee either during the course of their
employment then engages in a diversion or goes on a ‘frolic or their own,’ or is acting outside the scope or course of
employment, they employee will themselves be liable hence exonerating the
employer from any liability vicariously.
ADDITIONAL COMMENTARY
Vicarious
liability is a principle both in the law of tort and employment law, the
application and case law to that effect is the same. This topic summary may be
used in gaining an understanding and further applying the topic of vicarious
liability in both courses.
[this writing only serves for an educational purpose]
[1]Winfield, Percy Henry, Sir and Jolowicz on Tort. London :Sweet and Maxwell, 1971.
[2] Ibid
[3] [2015]
SCZ 122
[4] (1946)
62 TLR 427
[5] [44 E.R 233
[6]
(1968) 2 QB 497
[7]
(1952) 1 TLR 101
[8] [1984]
SCZ 12
[9] [1992]
SCZ 145
[10]
[2001] SCZ 7
[11]
(2002) 1 AC 215
[12] (1869)
LR 4 QB 476
This Article is Brought to you by:
LEGAL AID INITIATIVE
(Access to Knowledge )
About the Author:
