Vicarious liability Vicarious liability Defnition:
Defnition:
A rule of responsibility which renders the D liable for the
A rule of responsibility which renders the D liable for the torts committed by anothertorts committed by another. There must be an. There must be an employment relationship.
employment relationship. Justifcation:
Justifcation: 1.
1. Employer to Employer to be held liable fbe held liable for employing or employing a negligent emploa negligent employee, foryee, for ailure to controlailure to control the employee. the employee. 2.
2. Since the employeSince the employer derives benet frr derives benet from the employee!om the employee!s services, he shs services, he should be made liable for aould be made liable for any wrongfulny wrongful conduct of the employee in the performance of his wor".
conduct of the employee in the performance of his wor". #.
#. $Deep %poc$Deep %poc"et! co"et! concept& master is ncept& master is in the better nancin the better nancial standing to cial standing to compensate #ompensate #rdrd party. party.
E
Elleemmeennttss EE''ppllaannaattiioonn ((aassee ))eelldd First: Employee First: Employee committed a committed a wrongul or wrongul or tortious act tortious act
A tort e.g trespass, A tort e.g trespass, negligence,
negligence,
nuisance has been nuisance has been committed by committed by employee employee Second R: Second R: Existence o an Existence o an employer-employee employee relationsip relationsip Distinction between Distinction between a contract of service a contract of service *employee+& a *employee+& a special relationship special relationship e'ist and a contract e'ist and a contract for service for service *independent *independent contractor+ contractor+ (ontract of service (ontract of service *employee+& The *employee+& The person wor"s as part person wor"s as part
full time lecturer full time lecturer
of the organisation and his wor" forms an integral part of that organisations. (ontract for service *independent contractor+&Even though he is also done for the organisation, but it is only ancillary and is e'ternal factor to the organisation.
independent contractor
There are # tests to determine this (ontrol Test Di-culty to apply lac" of control of employers over the method in which the wor" is to be done. Short v /0 )anderson td. ord Than"erton factors to be considered i+ Employer has a power to select employee ii+ Determine salary iii+ (ontrol iv+ 3ower to terminate (ollins v )ertfordshire (ounty (ouncil (ontract of service e'isted if the employer had the power to instruct the employee and to control the method in which the wor" has to be done.
!rganisation test
(ontract of service& captain of a ship,
4at usoh bin Daud v Syari"at
)eld Since wages and no
Di"culty in apply: not being able to present a clear and candid answer in many situations#
driver, 5ournalist. 0or"s as part of the organisation and his wor" forms an integral part of that organi6ation
(ontract for service& ship!s pilot, ta'i driver, contributor to newspaper. Even though the wor" is done for the organi6ation, it is not integrated into it but is only accessory to it. 5aya Seberang Ta"ir 7act 3 wor"ed as sawyer at D!s sawmill. 3 sustained in5uries while carrying a log with another co&wor"er. (onse8uently D refused his further employment. D contend that 3 was not their employee but an employee of 9 who was the contractor of D of logs to be sawn were determinable by D, the 3!s wor"s was an integral part of D!s business and 3 was therefore D!s employee. D must ta"e reasonable care to avoid from unneccesary ris". D was found vicariously liable for not providing a proper and e:ective system at wor". 4ultiple test& common sense approach ;eady 4i'ed (oncrete td < 4inister of 3ensions and =ational >nsurance # factors need to be fullled before a contract of service is established
1.Employee or servant agrees that he will use his own
e'pertise and the employer pays him either in monetary form or in any other form of renumeration. 2.Employee or servant agrees, whether impliedly or e'pressly , that he will be bound by the employer!s instruction, which is re?ective of employer& employee relationship. #.All other conditions in the agreement are consistent with nature of
the 5ob being a contract of service. 4alaysia court
favour control test
0or"ers have been held to be non& employees on the basis that the D was not responsible for payment of wages and did not have control over the manner in which the wor" is performed
@ata Shoe v E37 @oard
enerally no di-culty to
di:erentiate them, e'cept in this two conditions
$ospital Sta% (assidy v 4inistry
Bf )ealth *house& surgeon, assistant medical o-cer+ ;oe v 4inistry of health
Tan Siew Eng v Dr ag5it Singh >f negligence occur in a hosp, and the tortfeasor cannot be identied, the hosp will be vicariously liable. >n ;oe, hosp will still be liable even
though negligence is committed by a part time employee. &ending a wor'er
The employer is still liable unless he has divested himself of all possession and control. 4ersey Doc"s / )arbour @oard v (oggins / ri-ths 3ermanent employer and therefore vicariously liable. #rd ; Employee
acted in the course of hisCher employment when coming to committing tort (onduct of the employee & >s e'presslyCimpliedly allowed by employer & >s authorised but done in unauthorised manner & >s ought or should be done in the course of doing the 5ob.
>s a 8uestion of fact
Thus it would be fair and 5ust to hold the employer vicariously liable for the tort committed by the
employee. (ircumstances
all witin )te course o employment* +# (arelessness o wor'er (ommission of careless act as long as not $on a frolic of his own! *employee!s act is intended to benet himself alone+ (entury 0or"er >nsurance (o td v =orthern >reland ;oad Transport @oard 7act D!s wor"er who was driving an oil tan"er, stopped at 3!s petrol station to transfer petrol from lorry to underground tan". )e lit up a cigarette and threw the burning match on the ?oor. E'plosion occurs and 3 property destroyed. D liable for wor"er!s negligent act. @ecause it was done in the course of his employment even though the actual act of smo"ing did not benet the employer ,# nautorised mode-.ista'e o employee
(ourt will hold the employer liable. 4ista"e will be construed as doing sth authorised in an unauthorised @ayley v 4anchestor, She-eld and incolnshire D was held liable when their porter pulled out a passenger from a train as the
manner. porter mista"enly thought the train was heading elsewhere. #. 3rotecting employer!s property
4ust not e'cessive& degree and fact
3oland v 3arr / Sons . Employee delegating his responsibility ;esponsibility must not be delegated. >ll"iw v Samuels& a negligence!s conduct . Employee
acting for his benet
Test whether the conduct of the wor"er is
reasonable, is that it is not too remote from comtemplation of both parties as to ta"e the act out of the employment. >f driver had driven 2FF miles for lunch, employer would not be held vicariously liable.
Ga"aria b (he Soh v (hooi Hum oong 7act 3 was a driver with a research institute in >poh. After sending the director home, he drove home for lunch and accident occurred on the way. State govt liable. Even though the purpose of that trip did not have anything to do with his employer, but it was sth that was e'pected to be done in the course of employment and the accident occurred within the course of employment. I. Acting (onduct was (ase (onway v >n action
against employer!s e'press prohibition
prohibited but related to the mode of performing his 5ob& within the
course of employment.
eorge 0inmpey and (o
7act the driver of a lorry acting against clear oral instruction of his employers, too" a passenger on to the lorry. There was a notice in the lorry indicating that the driver was under strict orders not to carry passengers other than employee of the company and anyone driving on the vehicles did so at it his own ris". The passenger
was subse8uently in5ured by the negligence driving of the lorry driver.
against the employer, the court held that the passenger to be a
trespasser and therefore no duty was owed to him by the employer.
J. Employee acting $on frolic of his own!
;oshairee Abd 0ahab v 4e5ar 4usta:a Bmar
K. 7raud of employee
0or"er acting on the apparentCostensible authority (ase loyd v race L. Theft of employees 4orris v (0 4artin / Sons td 1F. Se'ual abuse by employee ister v )esley )all 11. @reach of statutory duty 4a5rows"i v uy!s and St. Thomas =)S Trust iability in ;espect of >ndependent (ontractor A person who
although wor"ing for another person, he is not controlled by the other person or consuct relating to the performance of that wor". A contract for service. Employer not vicariously liable, e'cept in Employer authorising the commission of tort& a person who authorises another to commit a tort is deemed to have committed the tort
himself. =egligence of the employer D@H v Bng Ho" 3eng =on&delegable duties
