Introduction
The ambit of liability otherwise known as vicarious
liability arises when one party is responsible for the torts of another. This
situation occurs most frequently when an employer is held responsible for torts
committed by an employee. Vicarious liability is a form of joint liability
where both the person who committed the tort and their employer can be sued
although in most cases it is the employer because they have the insurance.[1]
Vicarious liability has certain three elements; Ratification, relation and
abatement.
Ratification is
agreement to accept the liability of the act of another. A person ratifying an
act has to do so having full knowledge of that the act is tortious. There is a
concept that there exists certain pre-conditions or pre-requisites whereby the
person possessing vicarious liability is aware of the likelihood of occurrence
of a tort or whereby the person is completely oblivious of the likelihood of a
tortious act taking place. Assessment of the choice of the person committing
the act needs to be done; there needs to be a correlation between the
ratification of the act and the motive of why the act was committed.
Relation assumes
pre-existing relationship between the person committing the act and the person
liable for the act for example the Employer/employee; master/servant;
company/director; principal/Agency relationships. The act for which we seek
liability has to be a tortious act.
Under principle and agency, there are no specific rules with
regards to vicarious liability. In order to establish liability under agency,
it is important to point out under whose authority they were operating and to
identify the terms of reference of this employee. Directors of companies may become liable for
the acts they have committed themselves or the ones they have directed their
subordinates to commit. However this has to be for the overall benefit of the
company. Under English law, in partnerships or firms, the firm or partnership
becomes liable for the torts that have been committed by either of the partners
in the course of doing business. In guardian/ minor no special liabilities
apply for minors and their torts. It depends on to what extent were the
guardians controlling or directing the tortious acts of the minors.
In the Master and Servant relationship, this is where
employers’ liability comes in. Every act which is done by a servant in the
cause of his employ is deemed to have been done under the master’s orders and
is indeed considered the master’s own acts.[2]
The master is vicariously liable for the acts of the servant. The question
therefore is if it an absolute principle and whether the master will always be
liable. The question of course of employment also arises where it is also
important to identify whether the act occurred during the course of employment.
In the case of Short
v. J. V. Henderson Ltd. (1946) TLR (HL) 420 the honorable judge stated that
the question of extent of liability depended on the master’s power to give
direction and to control the manner in which the work is being done. He further
stated requirements that determine liability and they included; the master's power of selection of
his servant; the payment of wages or other remuneration; the master's right to
control the method of doing the work; and the master's right of suspension or
dismissal." There is evolution whereby courts have come to conclude
that control is not exclusive.
There is also the concept of contract of service and
contract for services by an independent contractor. Independent contractors are
directly liable for a tortious act and not their employers as opposed to
employees under a contract of service whose degree of permanency causes the
liability of a tort to lie on the employer. In the case of Stevenson v. Montreal Locomotive Ltd, there were four issues
developed in order to distinguish between contract
of service and contract for services
by an independent contractor
1. Have to
look at who has wholesome control
2. Who has
the chance to profit/benefit
3. Who owns
or provides the tools
4. The risk
of loss
Another question we need to ask ourselves is whether the
unauthorized act was not so connected with the authorized act as to be a way of
performing the authorized act also known as the scope of employment. There is a
need to identify the totality of what the employee is authorized to do. You can
commit an unauthorized act that is considered as a mode or method of performing
the authorized act.
Abatement is simply
assisting another in committing a tort. In order to deal with the question
effectively, this essay will first begin by explaining the contest of slavery
to the law of tort and specifically vicarious liability and what this then
means for those employees of low means.
History
and Background of Slavery
Slavery is the state of bondage. It is the state of service.
An institution of the conventional law of nations, by which one person is
subjected to the dominion of another, contrary to natural right.[3]
Slavery occurred along time ago and its origins started in Africa, where it was
found that one indebted to the other would be subjected to work his way out of
the debt if he does not have a means to pay up. With the coming of missionaries
to Africa and the boosting of industries back home, this necessitated that they
needed cheap labour if not free to work on their farms, and this necessitated
the formation of the Trans-Atlantic Trade that forcibly embarked over twelve
million Africans for transport to the Americas between the sixteenth and
nineteenth centuries[4]
to Europe and the Americas.
Slaves were considered property under Roman law and had no
legal personhood. Unlike Roman citizens, they could be subjected to corporal
punishment, sexual exploitation (prostitutes were often slaves), torture, and
summary execution. The testimony of a slave could not be accepted in a court of
law unless the slave was tortured; a practice based on the belief that slaves
in a position to be privy to their masters' affairs would be too virtuously
loyal to reveal damaging evidence unless coerced[5]
Whereas elsewhere slave codes existed to bind the slaves to
their masters and also to restrict their movement among many more restrictions,
earlier on a wrong that was committed by a slave was not compensatory and in Cawthorne v Deas[6]
the judge held that wrongs committed by slaves were as if they had been
committed by natural elements such as air or fire hence there would be no
compensation. But with the development of the notion of strict liability many
argued that masters should be liable for their slaves wrongs, hence in Gaillardet v Demaries[7]
where it was argued that a masters liability is the burden that he has to bear
for owning such a species of property, it is absolute whether the slave is
supposed to be acting on their authority or not. This liability could also be
expressed in the sense that if the master would have disciplined his slave well
then he slave would not have committed a tort hence the master was negligent in
not ensuring the slaves behavior and conduct was top grade.
What emerged as a result of a slave being regarded as
property was the master servant analogy this was preferable to treating slaves
as cattle or dogs[8].
Slaves started being treated as servants but this was just a name to impose
liability on their masters but the conditions of work were still the same. This
doctrine had its problems as it was found that slaves and servants were not
analogous.
The master servant doctrine of liability that is part of
employers’ liability, was what emerged into the present day vicarious
liability. In order for vicarious liability to apply the courts must ask two
questions
● Was the
person who committed the tort employed by the defendant?
● Was the
tort committed in the course of that employment?
In relation to the first question, the two most important classes
of persons for whose torts another person may be ultimately liable are
employees and independent contractors. The general rule is that an employer is
legally responsible for the negligence of his or her employees, but not for the
negligence of an independent contractor. As with most broad legal principles,
there are many exceptions. However, the general rule applies in most common
circumstances.
A slave was an employee who worked on a forceful master
servant relationship for life, this has stuck in modern times whereas employees
are under a contract of service but not for life, an independent contractor is
one who is hired under a contract for services, the two are often mistaken when
it comes to employer’s liability. Certain tests have been brought out to
distinguish between the two.
The
control test.
In Short v J & W Henderson Ltd [9]
Lord Thankerton stated that there were four indications of a contract of
service; The master’s power of selection, if it is the master who chose the
particular worker then this specific selection makes him/her an employee; The
payment of remuneration, if the master personally pays remuneration to the
worker then he or she is an employee; The masters right to control the method
of doing the work, if the master can dictate the type of method that is to be
followed then he or she is an employee; The masters right of suspension or
dismissal, if it is the master who can suspend the worker then he or she is an
employee. Control was found to be an inadequate indication for an employment
contract hence this led to the to emergence of yet another test to cover up the
inadequacy of control.
Organization/Integral
test
This test asks whether the person’s work is an integral part
of the business. A person employed to work on the till in a shop would usually
be an employee. However, if the till was broken, the person called in to fix it
would probably be an independent contractor, as his or her work would be
incidental to the business of running the shop.
In Stevenson, Jordan
and Harrison Ltd v Macdonald,[10]
Lord denning stated about the integration test that ‘one feature seems to run
through instances is that 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 only as an accessory.
Economic
reality test.
This is a more modern approach where the courts take a
multiple factor approach; in this all aspects of the relationship are to be
assessed. In Montreal v Montreal
Locomotive works ltd [11]
Lord Wright suggested that it is important to assess control, ownership of the
tools of work and the chance of profit or a risk of loss. These three factors
were also considered by judge Mackenna in Ready
Mixed Concrete (south east) ltd v Ministers of pensions and national insurance.[12]
In the event of borrowing an employee sometimes an employee
may be borrowed or on loan from another employee, the torts committed by this
employee are generally vicariously liable by the original employee. This was
decided in Mersey Docks and Harbor Board
v Coggins & Griffith[13]
where the harbor authority had loaned a crane plus the driver to a party, the
crane driver negligently drove it and injured someone, the harbor authority
were held liable in that the driver acted in the capacity and method that had
been vested in him by the original employee hence the authority was held
liable.
The House of Lords laid down a number of principles to be
used in deciding future cases: The permanent employer would usually be
considered liable, unless they can show good reason why responsibility should
be placed on the employer who has borrowed the worker. In deciding whether
there is good reason to place responsibility on the borrowing employer, a key
question is who had the immediate right to control the employee’s method of
working. Courts should identify the act which caused the negligence, and ask
who had responsibility for preventing that act. Other important questions to
consider were: who paid the worker: who had the right to dismiss him or her,
and for how long was the employee borrowed? The terms of the contract between
the two employers were not to be considered conclusive. On the facts of the
case, the court concluded that the Harbor Board had not shown good reason for
liability to be placed on Coggins & Griffith, and so the Board were held to
be the crane driver’s employer.
The principles laid down in Mersey Docks were traditionally
used to enable the courts to choose between two possible employers, so that one
or the other would end up taking full responsibility. However, in Viasystems (Tyneside) Ltd v Thermal Transfer
(Northern) Ltd (2005), the Court of Appeal decided that in some cases it
would be more appropriate to use those principles to share liability between
two possible employers.[14]
The claimants in the case owned a factory, where they were having some
construction work done. During the work, a fitter’s mate, Mr. Strang, damaged
the sprinkler system, causing a flood which damaged the property. The claimants
had hired a company, Thermal Transfer, to do the work. Thermal Transfer had
sub-contracted some jobs to a second company, Darwell, and a third company, CAT
Metalwork, had supplied the fitter and his mate, Mr Strang, to Darwell. It was
not in dispute that Viasystems had a claim against Thermal Transfers in
contract, but they also sought to sue Darwell and CAT Metalwork in negligence,
claiming they were vicariously liable for Mr. Strang. Mr. Strang under the
instructions of, CAT Metalwork’s fitter, but both of them were under the
supervision of a foreman employed by Darwell. The Court of Appeal found that
both of them Darwell and CAT Metalwork, had the right and the responsibility to
control the way Mr. Strang did his work, and so it was fair that both their
companies were found to be vicariously liable for him. The Court held that both
should contribute equally to the damages.[15]
‘Business on his
own account’ Test
This is a growing test and was used by the Appeal court in
the case of Hall v. Lorlmer.[16]
This case was concerned with whether a freelance television technician for the
purposes of tax law. As a self-employed technician he could pay less tax than
if he was a permanent employee. The Inland Revenue argued that he was an
employee because he was subject to the control of the television companies in
that they told him where, when and for how long to work.
The Court of Appeal took a slightly different approach. They
held that the crucial factor was that he was not in business on his own
account. Workers will be viewed as in business on their own account if, for
example, they provide their own equipment, take financial risks, hire helpers,
have managerial and investment responsibilities, charge varying amounts for
different jobs, send out invoices for their work and have quite a few clients.
Nolan LJ said in Hall
v Lorlmer that just because people do highly-skilled work does not mean
they are more likely to be self-employed, for a brain surgeon is usually an
employee while a window cleaner is usually self-employed. Nor, in this day and
age, does the fact that a person is on short-term contracts with different
employers matter. He pointed out that the label that people give themselves is
relevant but never decisive. He concluded that the ‘business on their own
account’ test is not the exclusive test in deciding whether workers are
employees.
Liability
of the employer
As mentioned before, employer liability arises out of the
Master and Servant relationship which is a principle that seeks to explain
vicarious liability of employers for their employees. An employer will only be
liable for torts that an employee commits in the course of employment. This is
determined on the facts of each case. This may, at first, appear to be
straightforward: as long as the tort was committed when the employee was doing
his or her job, the employer is liable. Problems arise, however, when an
employee was doing his or her job in an unauthorized manner or in a way
expressly forbidden by the employer. The courts often struggle to determine
what exactly the phrase ‘in the course of employment’ means, and there is no
definitive test
The classic test is that of Salmond[17]
which stated that tortious acts are done in the course of employment if they
are:
● wrongful
acts actually authorized by the employer, or
● wrongful
and unauthorized ways of doing acts authorized by the employer also known as
scope of employment
Salmonds method becomes irrelevant and unhelpful in cases of
intentional wrongdoing particularly where the employee sets out to benefit
himself. The esteemed worship H.M Okwengu in the case of Harun Thungu Wakaba and 20 others v the Attorney General held that
the state is liable for the torture,both physical and psychological, inhuman,
cruel and degrading acts that were carried out by state agents in this case the
police. The state was forced to pay for their misconduct and violations of the
people’s right not to be tortured.[18]
Hence Lord Steyn stated that the test for whether the
employee has acted in the course of employment was whether the tort was so
closely connected to his employment in that it would be fair and just to hold
the employer vicariously liable.[19]
Earlier on during slavery this connection was not needed and this is because
since the slaves were always under the master’s authority for life then they
were always within the course of their employment.
An employer will be vicariously liable for an employee’s
tort when the employee has carried out an authorized act in a careless way. In Century Insurance Co v Northern Ireland
Road Transport[20]
while delivering petrol to garage, the driver was smoking a cigarette whilst
petrol was flowing from the truck to an underground tank, he carelessly threw
away the burning match and this caused an explosion. This act of smoking was an
authorized act as it was not forbidden but he did it in a careless way hence
his employers were held vicariously liable. The employer is also vicariously
liable if he has allowed the employee to do an unlawful act or abated him to do
a tortious act. Another instance in which the employer will be vicariously
liable is if the employee has carried out an authorized act in an unauthorized
way, in Poland v Parr[21],
an off duty employee who suspecting that a boy would steal sugar from the cart,
punched the boy and the boy got injured, the employers were held liable as the
unauthorized way the authorized act was carried in to the benefit of the employer
The last situation that can guarantee the employer being vicariously liable is
when the employee has carried out an act that had been expressly forbidden but
was for the benefit of the employer, in CPR
v Lockhart,[22]
an employee was allowed to use his personal car on outside jobs, provided that
it had insurance, the privy council held that his employers despite this
stipulation were liable for the damage he caused when he drove an uninsured
car.
Employer’s
indemnity
As vicarious liability means that two parties are held
responsible for a tort, the Civil Liability (Contribution) Act 1978 applies.
This means that an employer found vicariously liable may, in turn, sue its
employee to recover some or all of the damages awarded against it. Common law
also allows the employer to recover damages from the employee in certain
circumstances
Conclusion.
During days of slavery masters were held responsible for
every tort there slaves committed as it was negligent on their part not to
discipline them well and that is what resulted in them committing the torts in
the 1st place. During this era employers are held liable for particular torts
of their employees as they are seen as being negligent enough to not to hire
efficient workers who are skilled well and do not commit torts during their
course of employment.
The masters indemnity during those days of slavery was that
he could sell off the slave, punish him or her physically or loan his or her
out so that she can work to pay the damages she caused her or his master to pay.
The employer’s indemnity gives employers a chance to sue their employees on
damages caused but their torts, this may be through disciplinary action such as
dismissal or giving the employee a chance to make the money lost.
The logic of the ill and vile practice has however come to
be of use to employees of low means, this is evident in the event that slaves
were generally low employees who were worth nothing if not very little, hence
low employees for example nurses , if nurses commit a tort in the course of
their employment it is not them that are sued primarily for reasons of
vicarious liability but secondarily because they cannot pay in damages as much
as the hospital can as the hospital has more money than them.
[2]
