Vicarious Liability

Vicarious Liability

Vicarious liability is a liability which arises due to the special relationship between the employer and employee, master and servant, and etc. Some of the justifications:

i) Master is liable because of employing a negligent employee

ii) Failure in controlling the employee

iii) Master derives benefit from the employee’s services

iv) Master is in a better financial position to compensate the injured party (deep pockets)

v) Master would be in a better position to insure against losses.

In order to prove vicarious liability, 3 elements have to be proven.

i) There must be a wrongful or tortious act by the tortfeasor

ii) There exists a special relationship recognized by law between the person alleged to be vicariously liable and the tortfeasor.

iii) The tort is committed within the course of employment.

2. Special Relationship

Tests are employed to determine whether there is a special relationship (whether it is a contract of service or contract for services).

Control Test

1. Short v Henderson

Lord Thankerton held that the four indicia of a contract of service are… (a) the master’s power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master’s right to control the method of doing the work; and (d) the master’s right of suspension or dismissal.

2. Collins v Hertfordshire County Council

In this case, there was a junior surgeon and a visiting surgeon. The issue was on vicarious liability. Court held that the junior surgeon is an employee while the visiting surgeon is not. Thus, the hospital is only vicariously liable for the junior surgeon.

In a contract for services, the master can order or require what is to be done, however, for a contract of service, the master can require what is to be done and also how it shall be done.

Organisation Test

1. Stevenson Jordan

In 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, although the work is done for the business, it is not integrated into it but is only accessory to it.

2. Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd

In this case, the plaintiff was a sawyer at the defendant’s sawmill and he sustained injuries while carrying a log with a co-worker. The Court held that since the defendants determined the wages and the number of logs to be sawn, the plaintiff’s work was an integral part of the defendant’s business and was therefore an employee of the defendants.

Multiple Test

1. Ready Mixed Concrete

In this case, one Mr. Latimer worked for Ready Mixed Concrete. Mr. Latimer’s contractual terms included the need to wear the company uniform, to maintain the lorry at his own expense and pay its running costs, the mutual intention that he was an independent contractor, the company paid for the petrol and etc. Court held that he was an employee of the company.

3 Elements:

 i) There is a payment of wage or other remuneration for the performance of the worker’s service

ii) The worker agrees, in the performance of service, to be subject to the other’s control in a sufficient degree to make that other master.

iii) The other provisions of the contract are consistent with its being a contract of service.

 Malaysia

1. Bata Shoe Company (Malaysia) Ltd v Employees Provident Fund Bhd

Court employed the control test. The salesmen in retail shops are not employees of Bata because:

i) the company does not select such salesmen for appointed.

ii)Their wages are not paid by the company.

iii)The company has no direct control over the manner in which the work is to be done by the salesmen.

iv) Furthermore, the right of suspension or dismissal is exercised by the manager.

Hospital Staff

1. Cassidy v Ministry of Health

The plaintiff went to the hospital for a routine operation but came away with stiff fingers due to the doctor’s negligence. The Court held that the hospital was vicariously liable although they have no control in how the work is done. However, they were liable because they employed the staff and chosen them for the task. They also have the power of dismissal.

2. Roe v Ministry of Health

The plaintiff underwent a surgery. At the time, the anaesthetic was stored in glass ampoules immersed in a phenol solution. However, the glass had micro-cracks which were invisible to the eye but it allowed the phenol to penetrate. When the anaesthetic was administered, it caused permanent paraplegia. Court held that the micro-cracks were not foreseeable given the scientific knowledge at that time. Therefore, the hospital had applied the best practice and was not negligent.

3. Tan Eng Siew v Dr Jagjit Singh Sidhu

The doctor worked in the hospital for a short period and the hospital claims he is independent. The hospital provided him the facilities needed to carry out his work. It was held that the doctor was an independent consultant and the hospital is not vicariously liable.

Lending a Worker

If an employer lends out his worker to another party, the original employer is still liable for the tort of his worker, unless he has divested himself of all possession and control.

1. Mersey Docks

A crane driver was hired from Mersey Docks by the hirers. The driver drove the crane negligently and injured someone. The Court held that Mersey Docks is still liable even if the employee was lent to a hirer.

3. In the Course of Employment

A conduct is said to be within the course of employment if:

i) it is expressly or impliedly allowed by the employer;

ii) when the employee does something that is authorized in an unauthorized manner; or

iii) when the employee does something that is closely connected to what he is employed to do.

1. Staton v National Coal Board

An employee was going to collect his wages when he was involved in an accident. The Court held that even though the employee had finished his working hours, the collecting of the wages was still in the course of employment.

Carelessness of worker in the performance of his job

The commission of a careless act by a worker may still be within the course of employment as long as it wasn’t done on his frolic.

1. Century Insurance Co Ltd v Northern Ireland Road Transport Board

The driver was delivering petrol to a petrol station. He was pumping the petrol underground when he lit his cigarette and threw it away. It resulted in an explosion. Court held that it was not in the course of employment since the lighting of the cigarette was not part of the job.

Unauthorised mode of doing something authorised

If the employee makes a mistake in the course of his job, the employer may be liable.

1. Bayley v The Manchester, Sheffield, and Lincolnshire Railway Company

A railway porter saw a man of whom he thought would go onto the wrong train and pull him off the train by force. The man was injured. Court held that although the porter was negligent, he was still acting within the scope of his employment.

Tort committed in protection of employer’s property

1. Poland v John Parr and Sons

An employee saw a lorry belonging to his firm off which a boy wanted to steal sugar. He pushed the boy off the lorry and injured him badly. The company was held to be vicariously liable since it was for the employer’s benefit.

Worker delegating his responsibility

A servant cannot delegate his responsibility to a third party, thus, an employer will be held liable if the third party commits a tort.

1. Ilkiw v Samuels & Ors

A lorry driver was under instructions from his employers not to allow anyone else to drive the lorry. He allowed a third party who was incompetent to drive. Court held that the employer was vicariously liable.

Worker acting for his own benefit

If the worker does an act for his own benefit, he may still be acting within the scope of his employment.

1. Zakaria bin Che Soh v Chooi Kum Loong & Anor

In this case, the worker was a driver. After sending a director home, he took the vehicle for lunch and met with an accident. Court held that it was still within the course of employment as it was reasonably expected that he would go for lunch.

2. Samin bin Hassan v Government of Malaysia

The plaintiff was knocked down by the defendant who was driving a land rover belonging to Telekom Berhad. The defendant alleged that he wanted to test the brakes when he actually went for lunch. Court found that the employer was not vicariously liable.

Acting against employer’s express prohibition

Even if a worker acts against the employer’s express prohibition, it doesn’t necessarily mean that he is acting outside the scope of his employment.

1. Joseph Rand Ltd v Craig

The workers were rubbish collectors and the employer had expressly prohibited them from throwing the rubbish in places other than the rubbish dump. Some employees deposited the rubbish on the plaintiff’s property. Court held that the employer was not vicariously liable.

2. Harrison v Michelin Tyre Co Ltd

In the premise of the factory, the employee drove the vehicle closely to other workers as a prank. The employee caused the plaintiff to fall and injure himself. Court held that although the employee’s act was prohibited, it was still within the course of employment.

3. Limpus v London General Omnibus Company

A bus driver racing to a stop to collect passengers deliberately obstructed the driver of a bus of a rival company, overturning the latter's vehicle. The bus driver had been given instructions against obstructing other buses. Court held that the employer was vicariously liable as the defendant was doing an authorized act in an unauthorized manner.

Employee acting on a frolic of his own   

1. Joel v Morison

If the employee was going against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.

2. Keppel Bus Co Ltd v Sa’ad bin Ahmad (controversial)

The bus passenger argued with the bus conductor. The conduct struck the claimant in the eye. The Privy Council held that an employee who struck the plaintiff while working as a conductor on the defendant’s bus was not doing so in the course of employment and neither was he authorized to strike the plaintiff.

3. Roshairee bin Abdul Wahab v Mejar Mustafa bin Omar & Ors

The 1^st defendant was in charge of the camp orientation. The 2^nd defendant was a part time lecturer who was involved. The defendants tortured the plaintiff while caused injury to the latter. The ragging was done in the premises of the government and the government didn’t authorize such acts. Court held that the government was vicariously liable for the act of the 1^st defendant. The 2^nd defendant was acting as an independent entity.

4. Bohjaraj a/l Kasinathan’s case

The plaintiff, who was a passenger on a bus operated by D2, was assaulted by D1, the bus conductor, when the plaintiff commented on D1’s rudeness to a few schoolchildren. Court held that D1 was in the course of employment and thus, D2 was vicariously liable.

Fraud of the worker

An employer may be liable for the fraud committed by his employee if such act was within the apparent scope of the employer’s function.

1. Lloyd v Grace, Smith & Co

In this case, the clerk took some deeds under the employer’s care and transferred the deeds to himself. Court held that the fraud was committed within the scope of employment and the employer is thus liable.

Commission of theft by employee

An employer may be liable for the theft committed by his employee if it occurred within the course of employment.

1. Morris v CW Martin & Sons Ltd

When an employer has a duty to take care of goods or belongings of another and he entrusts that duty to a servant, he is liable if that servant is careless or if the servant steals the goods.

Sexual abuse by employee

1. Lister & Ors v Hesley Hall Ltd

An employee can be held vicariously liable for sexual abuse committed by an employee.

Liability in Respect of Independent Contractors

A person is not liable for the tort committed by his independent contractor under a contract for services.

Alcock v Wraith:

Facts: Mr. and Mrs. Swinhoe lived in terrace No.50. They employed an independent contractor, Mr.Wraith, to do some re-roofing. The re-roofing caused damage to Mr. Alcock who lived in terrace No.47. Mr. Alcock claimed for damages against Mr. and Mrs. Swinhoe and also Mr.Wraith. Court held that Mr. Wraith’s liability is indemnified by the couple.

“…where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work.”

Exceptions:

1. Cases regarding nuisance

Matania v National Provincial Bank Ltd

This case was concerned with a claim for damages for nuisance caused by dust and noise during building operations on premises of which Mr. Matania occupied the second and third floors. The employer was liable for the nuisance caused by the independent contractors as the work constituted a hazardous operation.

2. Cases involving non-delegable duties of an employer for the safety of the employee

i) Alcock’s case

ii) DBKL v Ong Kok Peng

In this case, the employer hired some independent contractors to do repairs on a lift. It was negligently done which resulted in an injury to the plaintiff. Court held that the employer was vicariously liable as it was a non-delegable duty.

3. Cases involving the withdrawal of support

i) Bower v Peate

When a man orders a work to be done, which in the natural course of things, injuries consequences to others is expected, is bound to prevent the mischief and cannot avoid responsibility by employing someone else to do the work.

ii) Dalton v Angus and Hughes v Percival

The exception was limited to work on a party wall. It was held that the duty went as far as to require the defendant to see that reasonable skill and care were exercised in those operations which involved the use of a party wall. The defendant could not get rid of such responsibility by delegating the performance of it to a third party.

4. Cases involving extra-hazardous activities

i) Honeywill and Stein v Larkin Brothers Ltd

Extra-hazardous activities are acts which in their very nature brings special danger to others; such as acts that cause fire and explosion.

ii) Brooke v Bool and Salsbury v Woodlands

A person who does work which involves danger to another person’s property is liable for any damage resulting to it from the failure to take proper care and is equally liable if he delegates such duty to another person.

5. Where the employer is under some statutory duty under which he cannot delegate

i) DBKL v Ong Kok Peng

Facts: The plaintiff fell into a lift shaft that was under repair. The owner hired independent contractors to repair such lift. Court held that the owner of the premise was still liable. The maintenance of the lift was a statutory duty imposed on the defendant by the Factory and Maintenance Act. The defendant cannot escape liability by delegation.

- A non-delegable duty to take care means that the employer has to exercise such duty of care, whether by his contractor or not, otherwise he would be equally liable as the contractor, and even most times for the contractor’s liability.

6. Escape of fire

i) Lee Kee v Gui See & Anor – escape of fire

7. Escape of substances

i) Rylands v Fletcher – escape of water

8. Operation on the highway which may cause danger to highway users

Gray v Pullen

The defendant’s house was adjoining a highway. He employed a contractor to cut a trench across the highway to connect a drain from his house to a sewer. A highway user was injured when the trench wasn’t filled in properly. The defendant was liable for the contractor’s negligence.