Vicarious Liability
34 Vicarious Liability
34.1 Doctrine of vicarious liability
Vicarious liability refers to a situation where one person is held liable for an act or omission of another person. Winfield explains the doctrine of vicarious liability thus: Vicarious liability refers to a situation where A may be held responsible to C for harm caused by the negligence or wrongdoing of B. A need not have directly participated in the wrongdoing, nor is it required that A had a legal duty to C. Instead, A must have a specific relationship with B, and B's actions must be related to that relationship.
This concept is often seen in the context of an employer being held liable for the actions of an employee. Vicarious liability is based on two maxims: "Respondeat superior" (let the principal be liable) and "Qui facit per alium facit per se" (he who acts through another acts himself). It is a form of strict, secondary liability that arises from the common law doctrine of agency, where a superior is responsible for the acts of their subordinate. This liability is placed on the person or entity that has the right, ability, or duty to control the actions of the wrongdoer. One common example of vicarious liability is the relationship between a master (employer) and servant (employee), where the master is held responsible for the servant's torts committed in the course of employment. Lord Brougham explained this principle by stating that as the master sets the servant in motion for his benefit and under his direction, he is responsible for the consequences of the servant's actions.
This means that the liability for the harm caused is shifted to the person or entity that benefited from the relationship and created the opportunity for the wrongdoing. This is sometimes referred to as the doctrine of "Respondeat Superior" (In which the Master - The Archaic Term for an Employer - must respond for the Torts of its Servants - the archaic term for employees). The principle says that a master is jointly and severely liable for any tort committed by his servant while acting in the course of his employment. As Lord Brougham said: "The reason that I am liable is this; that by employing him I set a whole thing in motion; and what he does being done for my benefit and under my direction. I am responsible for the consequences of doing it.
This implies that the liability for the injured party’s loss is properly shifted to the person or entity whose enterprise was benefited by the relationship and created the occasion for the wrongdoers act or omission." When a servant commits a tort in the course of his employment. the master is very often guilty of what German lawyers call "Culpa in eligendo" or" Culpa in inspiciendo." In order that the doctrine of vicarious liability may apply. the conditions that need to be fulfilled are that. Firstly: the relationship of master and servant must exist between the defendant and the person committing the wrong complained of. Secondly, the servant must in committing the wrong have been acting in the course of his employment.
34.2 Indian Law
Historical background so far as Indian Law is concerned, the maxim 'The King can do no wrong' was never fully accepted. Absolute immunity of the government was not recognized in the Indian legal system in the past. Kings were always subject to rule of law and to the system of justice prevalent at the relevant time. According to Manu, it was the duty of the king to uphold the law, as he himself was subject to law like any other ordinary citizen. Brihaspati had taken note of vicarious liability of the State and observed that wherever a servant did an improper act for the benefit of his master, the latter could be held responsible." Constitutional Provisions Under Article 294(b) of the Indian Constitution, the liability of the Union Government may arise out of any contract or otherwise. The word 'otherwise' suggests that the said liability may arise in respect of tortious acts also.
M.S.Grewal and Another v. Deep Chand Sood and Others [(2001) 8 SCC 151] where several school children died of drowning due to negligence on the part of the teachers; this Court, having regard to the provisions of the Fatal Accidents Act, 1855, opined that the school is vicariously liable for the acts of negligence of the teachers.
Lack of medical attention given to student
B.N.M Educational Institution and Anr v. Kum Akshatha and Anr 2016 SCC OnLine NCDRC 1116.
Facts: The Respondent/Complainant, a child aged 14 years at the relevant time, was a 9th standard student of B.N.M. Primary and High School, being run by B.N.M. Education Institutions at Bangalore. In December 2006, a group of students, including the Respondent /Complainant, accompanied by some teachers of the school, came to Delhi for an educational tour to several places in North India. The group reached Delhi on 24.12.2006. The Complainant allegedly developed fever on 24.12.2006 and her illness was intimated, by her classmates, to the teachers accompanying the students.
The case of the Complainant/Respondent is that no medical aid was provided to her, which resulted in deterioration of her health. On 26.12.2006, when the group was on a visit to Ranathambore National Wildlife Park, the Complainant had severe shivering and seizure. Twice, she became unconscious, firstly at 5 a.m. and then at 9.30 a.m. and she also vomited, due to high fever. According to the Complainant, no medical help was provided to her even at that time. When the group was returning to Delhi by road, undertaking a journey of about 14-15 hours, the Complainant, allegedly not being in her senses, attempted to jump from the bus but only a Crocin tablet was provided to her, without taking to her any doctor or hospital, which resulted in further deterioration of her health. She allegedly bites her tongue twice, which resulted in bleeding and she lost senses.
Though her condition continued to worsen, she was made to participate in a camp fire till the midnight of 30.12.2006 and made to travel to Delhi with the rest of the group. By the time they reached Delhi, she was allegedly totally drowsy and behaving indifferently. She was taken to the airport on 31.12.2006 without first taking her to a doctor or a hospital. But on account of her sickness, she was not allowed to take the flight. On return to the hotel, she allegedly vomited and fell unconscious in the bathroom. The door had to be broken upon, in order to rescue her from the bathroom. She was then taken to Jessa Ram Fortis hospital, where she was admitted. It was at that stage, that the teachers intimated the parents of the Complainant about her ill-health. It was diagnosed by the doctors that she had suffered a viral fever, namely, Meningo Encephalitis.
The doctors opined that had she been given timely medical aid and attention; she could easily have been cured. She is stated to have become vegetable like for all practical purposes and needs to be bedridden all the 24 hours. Alleging gross negligence on the part of the teachers who were accompanying her and the school management in taking care of the child at the time she was in their care, control and supervision, the Complainant approached the concerned State Commission by way of a consumer complaint, seeking a sum of Rs. 35 lakhs towards medical expenditure incurred upon the treatment of the Complainant along with Rs. 25 lakhs for her further treatment and Rs. 40 lakhs as damages.
The State Commission vide its order dated 9.3.2016 directed the Appellant to pay a total sum of Rs. 88,73,798/- to the Complainant along with interest @ 9% p.a. from the date of filing of the complaint. An appeal was made to the National Commission.
Issue: Whether the teachers were vicariously liable to the student?
The case did indeed discuss vicarious liability. The court examined the responsibility of the educational institution and its teachers for the well-being and safety of students during an educational tour. The finding of gross negligence on the part of the teachers led to the award of compensation to the victim, Kum. Akshatha. This ruling underscore the concept of vicarious liability, where an employer or principal can be held liable for the actions or omissions of their employees or agents in certain circumstances.
Decision: The National Commission held that the Appellant should pay a consolidated amount of Rs. 50,00,000/- as an all-inclusive one-time compensation to the Complainant, along with interest @ 8% per annum from the date of filing of the complaint. The Appellants are granted six weeks to deposit the said amount with the concerned State Commission. On such deposit, a sum of Rs. 40,00,000/- shall be deposited in a Nationalized Bank, in an FDR in the joint name of the parents of the Complainant, initially for a period of ten years.
The interest which accrues on the said deposit shall be utilized by the parents of the Complainant solely for her treatment and wellbeing. The balance amount shall be paid to the parent of the Complainants. If the interest which is paid on the fixed deposit is not sufficient for the treatment of the Complainant, the parents of the Complainant will be entitled to withdraw part of the said deposit with the prior permission of the concerned State Commission. Thus, the appeal was disposed of.
In the case of Janki Bai v. Uttam Singh Yadav (2011 (101 /C 624 (Chhattisgarh HC), The court held that the insurance company was not liable to pay compensation for the accident because the driver was not having a valid driver licence to drive the light motor vehicle as defined in Sec 2(21). The term "light motor vehicle" generally refers to vehicles like cars, vans, or small trucks that have a gross vehicle weight less than a certain limit, as specified in Sec 2(21).
Facts of the Case:
The appellant, Janki Bai, was the owner of a light motor vehicle.
The respondent, Uttam Singh Yadav, was driving the vehicle with the appellant's permission when he negligently caused an accident, resulting in injuries to the respondent's wife.
The respondent's wife filed a claim for compensation against both the driver and the owner of the vehicle.
The court examined the provisions of the Motor Vehicles Act, 1988, which holds the owner of a vehicle liable for the actions of the driver if the vehicle is driven with the owner's permission. The court noted that this provision was intended to ensure that victims of accidents caused by vehicles are adequately compensated.
The court held that the owner of a vehicle could be held liable for the negligence of the driver, even if the owner was not personally driving the vehicle at the time of the accident. The court emphasized that the owner's liability was vicarious and arose out of the relationship between the owner and the driver.
Therefore, the court upheld the decision to hold the appellant liable for the injuries caused by the negligence of the driver, who was driving the vehicle with the appellant's permission. The court awarded compensation to the respondent's wife and affirmed the principle of vicarious liability of vehicle owners for the actions of drivers. However, the court ruled in favor of the insurance company because the driver did not have a valid driving license at the time of the accident and thus, the insurance company was not liable to pay the claim.
34.3 Qui facit per alium facit per se (anglicised Late Latin), which means "He who acts through another does the act himself", is a fundamental legal maxim of the law of agency. It is a maxim often stated in discussing the liability of employer for the act of employee in terms of vicarious liability."
According to this maxim, if in the nature of things, the master is obliged to perform the duties by employing servants, he is responsible for their act in the same way that he is responsible for his own acts.
The maxim is a shortened form of the fuller 18th-century formulation: qui facit per alium, est perinde ac si facit per se ipsum: "whoever acts through another person acts as if he were doing it himself."
Indirectly, the principle is in action or present in the duty that has been represented by the agent so the duty performed will be seen as the performance of the agent himself. Whatever a principal can do for himself, can be done through an agent. The exception to this maxim would be acts of personal nature.
Employed persons are divided into two essential groups. The first group is ‘those employed to perform services in connection with the affairs of the employer and over whom the employer has control in the performance of those services. The second group consists of those ‘who do work for another, but who are not controlled by that other in the performance of that work’.
Vicarious liability is a common principle in tort law, particularly in cases involving employer liability for the actions of employees. It is designed to ensure that victims of wrongful acts have a means of obtaining compensation from those who are ultimately responsible, even if the person who directly caused the harm may not have the resources to pay damages.
For vicarious liability to apply, the following conditions must be met:
Ultimately, the determination of whether an act was within the scope of employment is a factual question that depends on the specific circumstances of each case. Courts will consider all relevant factors to determine the nature and extent of the agent's employment duties and whether the act in question falls within those duties.
34.7 Agents for Whom Principals Are Vicariously Liable
Principals can be liable vicariously for the acts of their agents under the legal doctrine of respondeat superior. This doctrine holds that a principal can be held responsible for the wrongful acts of his agent if those acts occur within the scope of agency relationship.
Under respondeat superior, if an agent commits a tort while acting within the scope of his agency, the Principal may be held vicariously liable for the resulting harm. This means that even if the principal did not personally commit the wrongful act and may have been unaware of it, he can still be held responsible for the actions of his agent.
It's important to note that there are limitations to vicarious liability, and not all acts of agents will result in liability for the principal. Factors such as whether the act was authorized, whether it was for the benefit of the principal, and whether it was within the scope of the agent's authority will all be considered in determining the principal's liability.
34.8 Employee and independent contractor:
The primary difference between an employee and an independent contractor lies in the degree of control and independence they have in their work:
It's important for businesses to correctly classify workers as employees or independent contractors, as misclassification can lead to legal and financial consequences. The classification is based on the nature of the work relationship and is not simply a matter of how the parties label the relationship.
34.9 Contract of employment and contract for employment:
The terms "contract of employment" and "contract for employment" are often used interchangeably, but they can have slightly different meanings depending on the context. Here's a general distinction:
The test is thus one of degree, and it is not always easy to decide when a detour has become so great as to be transformed into a frolic. For a time, a rather mechanical rule was invoked to aid in making the decision. The courts looked to the servant’s purposes in “detouring.” If the servant’s mind was fixed on accomplishing his own purposes, then the detour was held to be outside the scope of employment; hence the tort was not imputed to the master. But if the servant also intended to accomplish his master’s purposes during his departure from the letter of his assignment, or if he committed the wrong while returning to his master’s task after the completion of his frolic, then the tort was held to be within the scope of employment.
This test is not always easy to apply. If a hungry deliveryman stops at a restaurant outside the normal lunch hour, intending to continue to his next delivery after eating, he is within the scope of employment. But suppose he decides to take the truck home that evening, in violation of rules, in order to get an early start the next morning. Suppose he decides to stop by the beach, which is far away from his route. Does it make a difference if the employer knows that his deliverymen do this?
The case is significant for clarifying the scope of an employer's liability for the actions of an independent contractor.
The main issue before the court was whether Morrison could be held vicariously liable for the actions of his driver, despite the driver's status as an independent contractor.
The Supreme Court of Canada held that Morrison could be held vicariously liable for the driver's negligence. The court emphasized that the key factor in determining vicarious liability is not the formal legal relationship between the parties (i.e., whether the driver was an employee or an independent contractor), but rather the degree of control that the employer has over the employee or contractor.
In this case, the court found that Morrison exercised significant control over the driver, including setting rates, dispatching cabs, and requiring the driver to wear a company uniform. As such, the court concluded that Morrison was in a position to prevent the harm caused by the driver's negligence and should be held liable for that harm.
The case of Joel v. Morrison is significant for clarifying the circumstances in which an employer can be held vicariously liable for the actions of an independent contractor. It underscores the principle that vicarious liability is based on the degree of control that the employer has over the person causing the harm, rather than the formal legal relationship between the parties.
The phrase "frolic and detour" in this case is used to describe a situation where an employee deviates from their assigned task (a detour) but is still considered to be acting within the scope of their employment, or when an employee goes on a significant departure from their duties (a frolic) and is no longer considered to be acting within the scope of their employment.
The test of whether an employee's actions constitute a frolic or detour is one of degree. Courts have to assess the nature and extent of the deviation from the employee's duties to determine if it is still within the scope of employment. This can be a complex and fact-specific analysis.
In the past, a more mechanical rule was sometimes applied, where courts would consider the servant's purposes in detouring to determine if the action was a frolic or detour. However, this approach has been criticized for being too simplistic and not taking into account the broader context of the employment relationship and the specific circumstances of the case.
Modern courts are more likely to consider a range of factors in determining whether an employee's actions constitute a frolic or detour, including the nature of the employment, the extent of the deviation from the assigned task, the time and place of the deviation, and the employer's control over the employee's actions. This approach allows for a more nuanced and context-specific analysis of vicarious liability in cases where an employee's actions deviate from their duties.
The discussion regarding the "frolic and detour" concept and the test of degree in determining vicarious liability was not directly relevant in the case of Joel v. Morrison. In that case, the key issue was whether the taxi driver, who was an independent contractor, was acting within the scope of his employment when he caused the accident. The court focused on the degree of control that the taxi company exercised over the driver and concluded that the company could be held vicariously liable for the driver's negligence.
While the principles of frolic and detour are relevant in cases involving employees and the scope of their employment, the Joel v. Morrison case dealt more with the nature of the relationship between the taxi company and its drivers, rather than the specific actions of the driver at the time of the accident.
34.38 The Zone of Risk Test
The “Zone of Risk” test is a concept used in the context of vicarious liability to determine whether an employer can be held liable for the actions of an employee that result in harm to a third party. The test focuses on whether the employee’s actions were closely connected to their employment and whether the harm caused was reasonably foreseeable.
Under the Zone of Risk test, an employer can be held vicariously liable if the employee’s actions were within the “zone of risk” created by the employment relationship. This means that if the employee’s actions were a foreseeable consequence of their employment, the employer may be held responsible for any harm caused, even if the specific manner in which the harm occurred was not anticipated.
The Zone of Risk test is used by courts to determine the extent of an employer’s liability in cases where an employee’s actions result in harm. It helps to establish a connection between the employee’s conduct and their employment, which is necessary for vicarious liability to apply.
It’s important to note that the application of the Zone of Risk test can vary depending on the jurisdiction and the specific facts of the case. Courts will consider factors such as the nature of the employment, the relationship between the employee and the employer, and the circumstances surrounding the harm caused in determining whether vicarious liability applies.
Court decisions in the last forty years have moved toward a different standard, one that looks to the foreseeability of the agent’s conduct. By this standard, an employer may be held liable for his employee’s conduct even when devoted entirely to the employee’s own purposes, as long as it was foreseeable that the agent might act as he did.
The employer will be within the zone of risk for vicarious liability if the employee is where she is supposed to be, doing-more or less-what she is supposed to be doing, and the incident arose from the employee’s pursuit of the employer’s interest (again, more or less). That is, the employer is within the zone of risk if the servant is in the place within which, if the master were to send out a search party to find a missing employee, it would be reasonable to look.
At common law, the husband was liable for the torts of his wife, not because she was considered an agent but because she was considered to be an extension of him. “Husband and wife were only one person in law, ”O.W. Holmes, Agency, says Holmes, and any act of the wife was supposed to have been done at the husband’s direction (to which Mr. Dickens’s Mr. Bumble responded, in the memorable line, “If the law supposes that, the law is a ass-a idiot” Charles Dickens, Oliver Twist, (London: 1838), chap 51.). This ancient view has been abrogated by statute or by court ruling in all the states, so that now a wife is solely responsible for her own torts unless she in fact serves as her husband’s agent.
Unlike wives, children are not presumed at common law to be agents or extensions of the father so that normally parents are not vicariously liable for their children’s torts. However, they can be held liable for failing to control children known to be dangerous.
Most states have statutorily changed the common-law rule, making parents responsible for willful or malicious tortious acts of their children whether or not they are known to be mischief-makers. Thus, the Illinois Parental Responsibility Law provides the following: “The parent or legal guardian of an unemancipated minor who resides with such parent or legal guardian is liable for actual damages for the willful or malicious acts of such minor which cause injury to a person or property. Several other states impose a monetary limit on such liability.
34.42 Other Torts Governed by Statute or Regulation
There are certain types of conduct that statutes or regulation attempt to control by placing the burden of liability on those presumably in a position to prevent the unwanted conduct. An example is the “Dramshop Act,” which in many states subjects the owner of a bar to liability if the bar continues to serve an intoxicated patron who later is involved in an accident while intoxicated. Dram shop laws vary by state in the United States, but they generally allow individuals who have been injured by an intoxicated person to sue the establishment that served the alcohol. These laws are based on the principle that establishments that profit from selling alcohol have a duty to do so responsibly and not to serve alcohol to individuals who are visibly intoxicated.
Under dram shop laws, an injured party may be able to recover damages such as medical expenses, lost wages, pain and suffering, and other losses caused by the actions of an intoxicated person. In some states, there are also criminal penalties for establishments that violate dram shop laws.
It's important to note that dram shop laws have limitations and may not apply in all situations. For example, some states have exceptions for social hosts who serve alcohol at private gatherings. Additionally, the specific requirements and procedures for filing a claim under dram shop laws can vary by state.
Overall, dram shop laws are intended to hold establishments accountable for their role in serving alcohol to intoxicated individuals and to deter them from overserving alcohol in the future.
Another example involves the sale of adulterated or short-weight foodstuffs: the employer of one who sells such may be liable, even if the employer did not know of the sales.
Mersey Docks and Harbour Board v Cameron (1865) 29 JR 483 is an important case in the context of administrative law and the relationship between statutory powers and the royal prerogative.
This case is significant in legal history, particularly regarding the concept of the royal prerogative and its interaction with statutory powers granted by Parliament. Here is a detailed analysis of the case based on the information provided:
The Court of Appeal found that it was not made out and held that Forrest J was correct to conclude that the relationship between Coffey as an assistant priest, and the Diocese was one which, in an appropriate case, would render the Diocese vicariously liable for any tort committed by Coffey in his role as an assistant priest within the Diocese.
Cox v Ministry of Justice [2016] UKSC 10 In Cox, the issue was whether the prison service, which is an executive agency of the defendant, was vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act was negligent and caused injury to a member of the prison staff.
Mrs Cox worked as the catering manager at HMA Swansea, where she had day to day charge of the operation of the kitchen. She supervised four members of staff and there were also about 20 prisoners who worked in the kitchen and came under her supervision.
While taking delivery of some kitchen supplies, a prisoner attempted to carry two sacks past Mrs Cox, lost his balance, and dropped one of the sacks onto her back, causing her injury. It was accepted that this was negligent.
The Prison Rules require that convicted prisoners (whether in private or state prisons) shall be required to do useful work for not more than 10 hours per day. The defendant’s policy in relation to such work was that the discipline and routine of regular working hours instils an ethos of hard work into prisoners and that prison should be a place where work is central to the regime and offenders learn vocational skills.
Work can be provided either by the prison or by external providers in the private, voluntary and community sectors.
Prisoners can apply to work in prison kitchens and selections are carried out after relevant assessments have been made. Prisoners may be paid for their work at rates approved by the Secretary of State (£11.55 per week at the relevant time), to encourage and reward their constructive participation. If prisoners did not work in the catering department, additional costs would have to be incurred in employing staff or engaging contractors. Prisoners were not generally allowed their own food, so they depended on the prison service to be fed.
Trial Judge
The trial judge found that the prison service was not vicariously liable for the prisoner’s negligence. He focused on whether the relationship between the prison service and the prisoner was akin to that between an employer and employee and concluded that it was not.
Although he accepted that there were some respects in which the relationship resembled employment, he considered that there was a crucial difference. Employment was a voluntary relationship, in which each party acted for its own advantage. The position regarding prisoners was quite different; the prison authorities were legally required to offer work and make payment for that work. Those requirements were not a matter of voluntary enterprise but of penal policy. The provision of work was a matter of prison discipline, of prisoner’s rehabilitation, and possibly of discharging the prisoners’ obligations to the community. Although the work done by prisoners might contribute to the efficient and economical operation of the prison, the situation was not one in which prisoners were furthering the business undertaking of the prison service.
Court of Appeal
The Court of Appeal overturned this decision.
It observed that the work performed by prisoners in the kitchen was essential to the functioning of the prison, and if not done by prisoners would have to be done by someone else. It was therefore done on behalf of the prison service and for its benefit. It was part of the enterprise or benefit of the prison service in running the prison. In short, the prison service took the benefit of this work, and there was no reason why it should not take its burdens.
Although the relationship differed from a normal employment relationship in that the prisoners were bound to the prison service not by contract but by their sentences, and also in that the prisoners’ wages were nominal, those differences rendered the relationship, if anything, closer than one of employment: it was founded not on mutuality but on compulsion.
The Supreme Court upheld the Court of Appeal’s decision.
34.1 Doctrine of vicarious liability
Vicarious liability refers to a situation where one person is held liable for an act or omission of another person. Winfield explains the doctrine of vicarious liability thus: Vicarious liability refers to a situation where A may be held responsible to C for harm caused by the negligence or wrongdoing of B. A need not have directly participated in the wrongdoing, nor is it required that A had a legal duty to C. Instead, A must have a specific relationship with B, and B's actions must be related to that relationship.
This concept is often seen in the context of an employer being held liable for the actions of an employee. Vicarious liability is based on two maxims: "Respondeat superior" (let the principal be liable) and "Qui facit per alium facit per se" (he who acts through another acts himself). It is a form of strict, secondary liability that arises from the common law doctrine of agency, where a superior is responsible for the acts of their subordinate. This liability is placed on the person or entity that has the right, ability, or duty to control the actions of the wrongdoer. One common example of vicarious liability is the relationship between a master (employer) and servant (employee), where the master is held responsible for the servant's torts committed in the course of employment. Lord Brougham explained this principle by stating that as the master sets the servant in motion for his benefit and under his direction, he is responsible for the consequences of the servant's actions.
This means that the liability for the harm caused is shifted to the person or entity that benefited from the relationship and created the opportunity for the wrongdoing. This is sometimes referred to as the doctrine of "Respondeat Superior" (In which the Master - The Archaic Term for an Employer - must respond for the Torts of its Servants - the archaic term for employees). The principle says that a master is jointly and severely liable for any tort committed by his servant while acting in the course of his employment. As Lord Brougham said: "The reason that I am liable is this; that by employing him I set a whole thing in motion; and what he does being done for my benefit and under my direction. I am responsible for the consequences of doing it.
This implies that the liability for the injured party’s loss is properly shifted to the person or entity whose enterprise was benefited by the relationship and created the occasion for the wrongdoers act or omission." When a servant commits a tort in the course of his employment. the master is very often guilty of what German lawyers call "Culpa in eligendo" or" Culpa in inspiciendo." In order that the doctrine of vicarious liability may apply. the conditions that need to be fulfilled are that. Firstly: the relationship of master and servant must exist between the defendant and the person committing the wrong complained of. Secondly, the servant must in committing the wrong have been acting in the course of his employment.
34.2 Indian Law
Historical background so far as Indian Law is concerned, the maxim 'The King can do no wrong' was never fully accepted. Absolute immunity of the government was not recognized in the Indian legal system in the past. Kings were always subject to rule of law and to the system of justice prevalent at the relevant time. According to Manu, it was the duty of the king to uphold the law, as he himself was subject to law like any other ordinary citizen. Brihaspati had taken note of vicarious liability of the State and observed that wherever a servant did an improper act for the benefit of his master, the latter could be held responsible." Constitutional Provisions Under Article 294(b) of the Indian Constitution, the liability of the Union Government may arise out of any contract or otherwise. The word 'otherwise' suggests that the said liability may arise in respect of tortious acts also.
M.S.Grewal and Another v. Deep Chand Sood and Others [(2001) 8 SCC 151] where several school children died of drowning due to negligence on the part of the teachers; this Court, having regard to the provisions of the Fatal Accidents Act, 1855, opined that the school is vicariously liable for the acts of negligence of the teachers.
Lack of medical attention given to student
B.N.M Educational Institution and Anr v. Kum Akshatha and Anr 2016 SCC OnLine NCDRC 1116.
Facts: The Respondent/Complainant, a child aged 14 years at the relevant time, was a 9th standard student of B.N.M. Primary and High School, being run by B.N.M. Education Institutions at Bangalore. In December 2006, a group of students, including the Respondent /Complainant, accompanied by some teachers of the school, came to Delhi for an educational tour to several places in North India. The group reached Delhi on 24.12.2006. The Complainant allegedly developed fever on 24.12.2006 and her illness was intimated, by her classmates, to the teachers accompanying the students.
The case of the Complainant/Respondent is that no medical aid was provided to her, which resulted in deterioration of her health. On 26.12.2006, when the group was on a visit to Ranathambore National Wildlife Park, the Complainant had severe shivering and seizure. Twice, she became unconscious, firstly at 5 a.m. and then at 9.30 a.m. and she also vomited, due to high fever. According to the Complainant, no medical help was provided to her even at that time. When the group was returning to Delhi by road, undertaking a journey of about 14-15 hours, the Complainant, allegedly not being in her senses, attempted to jump from the bus but only a Crocin tablet was provided to her, without taking to her any doctor or hospital, which resulted in further deterioration of her health. She allegedly bites her tongue twice, which resulted in bleeding and she lost senses.
Though her condition continued to worsen, she was made to participate in a camp fire till the midnight of 30.12.2006 and made to travel to Delhi with the rest of the group. By the time they reached Delhi, she was allegedly totally drowsy and behaving indifferently. She was taken to the airport on 31.12.2006 without first taking her to a doctor or a hospital. But on account of her sickness, she was not allowed to take the flight. On return to the hotel, she allegedly vomited and fell unconscious in the bathroom. The door had to be broken upon, in order to rescue her from the bathroom. She was then taken to Jessa Ram Fortis hospital, where she was admitted. It was at that stage, that the teachers intimated the parents of the Complainant about her ill-health. It was diagnosed by the doctors that she had suffered a viral fever, namely, Meningo Encephalitis.
The doctors opined that had she been given timely medical aid and attention; she could easily have been cured. She is stated to have become vegetable like for all practical purposes and needs to be bedridden all the 24 hours. Alleging gross negligence on the part of the teachers who were accompanying her and the school management in taking care of the child at the time she was in their care, control and supervision, the Complainant approached the concerned State Commission by way of a consumer complaint, seeking a sum of Rs. 35 lakhs towards medical expenditure incurred upon the treatment of the Complainant along with Rs. 25 lakhs for her further treatment and Rs. 40 lakhs as damages.
The State Commission vide its order dated 9.3.2016 directed the Appellant to pay a total sum of Rs. 88,73,798/- to the Complainant along with interest @ 9% p.a. from the date of filing of the complaint. An appeal was made to the National Commission.
Issue: Whether the teachers were vicariously liable to the student?
The case did indeed discuss vicarious liability. The court examined the responsibility of the educational institution and its teachers for the well-being and safety of students during an educational tour. The finding of gross negligence on the part of the teachers led to the award of compensation to the victim, Kum. Akshatha. This ruling underscore the concept of vicarious liability, where an employer or principal can be held liable for the actions or omissions of their employees or agents in certain circumstances.
Decision: The National Commission held that the Appellant should pay a consolidated amount of Rs. 50,00,000/- as an all-inclusive one-time compensation to the Complainant, along with interest @ 8% per annum from the date of filing of the complaint. The Appellants are granted six weeks to deposit the said amount with the concerned State Commission. On such deposit, a sum of Rs. 40,00,000/- shall be deposited in a Nationalized Bank, in an FDR in the joint name of the parents of the Complainant, initially for a period of ten years.
The interest which accrues on the said deposit shall be utilized by the parents of the Complainant solely for her treatment and wellbeing. The balance amount shall be paid to the parent of the Complainants. If the interest which is paid on the fixed deposit is not sufficient for the treatment of the Complainant, the parents of the Complainant will be entitled to withdraw part of the said deposit with the prior permission of the concerned State Commission. Thus, the appeal was disposed of.
In the case of Janki Bai v. Uttam Singh Yadav (2011 (101 /C 624 (Chhattisgarh HC), The court held that the insurance company was not liable to pay compensation for the accident because the driver was not having a valid driver licence to drive the light motor vehicle as defined in Sec 2(21). The term "light motor vehicle" generally refers to vehicles like cars, vans, or small trucks that have a gross vehicle weight less than a certain limit, as specified in Sec 2(21).
Facts of the Case:
The appellant, Janki Bai, was the owner of a light motor vehicle.
The respondent, Uttam Singh Yadav, was driving the vehicle with the appellant's permission when he negligently caused an accident, resulting in injuries to the respondent's wife.
The respondent's wife filed a claim for compensation against both the driver and the owner of the vehicle.
The court examined the provisions of the Motor Vehicles Act, 1988, which holds the owner of a vehicle liable for the actions of the driver if the vehicle is driven with the owner's permission. The court noted that this provision was intended to ensure that victims of accidents caused by vehicles are adequately compensated.
The court held that the owner of a vehicle could be held liable for the negligence of the driver, even if the owner was not personally driving the vehicle at the time of the accident. The court emphasized that the owner's liability was vicarious and arose out of the relationship between the owner and the driver.
Therefore, the court upheld the decision to hold the appellant liable for the injuries caused by the negligence of the driver, who was driving the vehicle with the appellant's permission. The court awarded compensation to the respondent's wife and affirmed the principle of vicarious liability of vehicle owners for the actions of drivers. However, the court ruled in favor of the insurance company because the driver did not have a valid driving license at the time of the accident and thus, the insurance company was not liable to pay the claim.
34.3 Qui facit per alium facit per se (anglicised Late Latin), which means "He who acts through another does the act himself", is a fundamental legal maxim of the law of agency. It is a maxim often stated in discussing the liability of employer for the act of employee in terms of vicarious liability."
According to this maxim, if in the nature of things, the master is obliged to perform the duties by employing servants, he is responsible for their act in the same way that he is responsible for his own acts.
The maxim is a shortened form of the fuller 18th-century formulation: qui facit per alium, est perinde ac si facit per se ipsum: "whoever acts through another person acts as if he were doing it himself."
Indirectly, the principle is in action or present in the duty that has been represented by the agent so the duty performed will be seen as the performance of the agent himself. Whatever a principal can do for himself, can be done through an agent. The exception to this maxim would be acts of personal nature.
Employed persons are divided into two essential groups. The first group is ‘those employed to perform services in connection with the affairs of the employer and over whom the employer has control in the performance of those services. The second group consists of those ‘who do work for another, but who are not controlled by that other in the performance of that work’.
Vicarious liability is a common principle in tort law, particularly in cases involving employer liability for the actions of employees. It is designed to ensure that victims of wrongful acts have a means of obtaining compensation from those who are ultimately responsible, even if the person who directly caused the harm may not have the resources to pay damages.
For vicarious liability to apply, the following conditions must be met:
- Relationship: There must be a legally recognized relationship between the parties, such as employer-employee, principal-agent, or parent-child.
- Scope of Employment: The wrongful act must have occurred within the scope of the employee's duties or the agent's authority. This means that the act must have been done while the employee/agent was carrying out work on behalf of the employer/principal.
- Benefit: The wrongful act must have been at least partly for the benefit of the employer/principal.
34.4 Origin
Vicarious liability was first discussed in the following case:
Rex v Huggins and Barnes: KBD 1730
Gaoler- Murder of Prisoner by Lack of Care
The defendant Huggins was warden of the Fleet Prison. A prisoner, Arne, died in
1725. Barnes, a goaler had put him in a room ‘without fire, chamber-pot or
close-stool, the walls being damp and unwholesome, and the room built over the
common sewer’. Thus confined, Arne ‘by reason of his imprisonment in the said
room sickened, and by duress thereof died’ 44 days later. Huggins was indicted
and tried at the Old Bailey for his murder, under an allegation that as warden
of the Fleet he ‘had the care and custody of the prisoners committed thither’,
that ‘Barnes was his servant, employed by him in taking care of the prisoners’,
that at the time of Arne’s imprisonment Barnes and Huggins knew the room to be
as before described and that Huggins was ‘aiding and abetting Barnes in
committing the said felony and murder.’ The jury had returned a special verdict
finding that Barnes was in fact the servant of Huggins’ deputy, Gibbon, and that
Huggins had visited the cell only once, some 15 days before Arne died.
Held: In a certiorari in the Kings Bench, the judges concluded that Barnes, if
indicted, would, on the facts as found by the jury, have been guilty of murder,
but that Huggins was not guilty.
Lord Raymond LCJ said: ‘Though he was warden, yet it being found, that there was
a deputy; he is not, as warden, guilty of the facts committed under the
authority of his deputy. He shall answer as superior for his deputy civilly, but
not criminally. It has been settled, that though a sheriff must answer for the
offences of his goaler civilly, that is, he is subject in an action, to make
satisfaction to the party injured; yet he is not to answer criminally for the
offences of his under-officer. He only is criminally punishable, who immediately
does the act, or permits it to be done. Hale’s P. C. 114. So that if an act be
done by an under-officer, unless it is done by the command or direction, or with
the consent of the principal, the principal is not criminally punishable for it.
In this case the fact was done by Barnes; and it nowhere appears in the special
verdict, that the prisoner at the Bar ever commanded, or directed, or consented
to this duress of imprisonment, which was the cause of Arne’s death.’
In Strange’s report: ‘It is a point not to be disputed, but that in criminal
cases the principal is not answerable for the act of the deputy, as he is in
civil cases: they must each answer for their own acts, and stand or fall by
their own behaviour. All the authors that treat of criminal proceedings, proceed
on the foundation of this distinction; that to affect the superior by the act of
the deputy, there must be the command of the superior, which is not found in
this case.’
Fitz-Gibbons reported: ‘The act of the deputy cannot criminally affect the
principal; so that unless the act be by command, consent, or privity of the
principal, so as to make him an abettor, he cannot be guilty.’
In tort law, particularly concerning vicarious liability, several concepts help
determine whether an employer or principal can be held responsible for the
actions of an employee or agent. Let's break down these concepts:
- Benefit of the Employer: This concept refers to whether the wrongful act
of the employee or agent was in some way connected to the employer's
interests or objectives. If the employee's actions were intended to further
the employer's business or were within the scope of their employment, it is
more likely that the employer will be held liable. For example, if a
delivery driver causes an accident while making a delivery for their
employer, the employer may be held vicariously liable because the driver's
actions were benefiting the employer's business.
- Course of Employment: This concept is related to whether the wrongful
act occurred while the employee was actively engaged in their job duties or
was acting on behalf of the employer. If the act was committed during the
course of employment, the employer is more likely to be held liable. For
example, if an employee causes harm while on a coffee break, it may be
considered outside the course of employment, and the employer might not be
held liable.
- Scope of Authority: This concept is similar to the course of employment but focuses more on the authority granted to the employee or agent by the employer or principal. If the wrongful act was committed within the scope of the employee's authority, the employer or principal is more likely to be held liable. For example, if a store manager commits a wrongful act while managing the store, it is within the scope of their authority, and the employer may be held liable.
These concepts help courts determine whether there is a sufficient connection
between the actions of the employee or agent and the interests of the employer
or principal to justify holding the employer or principal vicariously liable for
those actions.
34.5 Liability for one’s agent
Lord Atkinson in Samson v. Aitchison, (1912 AC 844) it is a matter of
indifference whether a person be styled a servant or agent since it is the
retention of control which makes the owner or the principal responsible. Just as
the tort must be committed by a servant either under the actual control of his
master or while acting in the course of employment, the act of the agent will
only make the principal liable if it is done within the scope of his authority.
By a process of ratiocination, the Courts have made a slight distinction by
attempting to find a "right of control" as the basis of the master's liability
and have distinguished it from a 'right to control' in cases of simple agency to
bring the two cases together. We find it simpler to state the law that an agent
will make the principal responsible so long as the agent does the act within the
scope of his authority or does so under the actual control of the principal. We
do not subscribe to the extension of the doctrine that the act of the servant or
the agent must be for the master's benefit.
Berwick v. English Joint Stock Bank. (1867 (2) Ex 259).
This case is significant in the context of vicarious liability and the scope of
employment. This case established the principle that an employer can be held
vicariously liable for the actions of an employee, even if those actions were
unauthorized or in violation of the employer's instructions, as long as they
were closely connected to the employee's duties.
In this case, a bank clerk was instructed not to certify a customer's check
unless the customer had sufficient funds. Despite this instruction, the clerk
certified a check for a customer who did not have enough funds, resulting in a
loss for the bank. The court held that the bank was vicariously liable for the
clerk's actions because certifying checks was within the scope of the clerk's
employment, even though he had acted contrary to his instructions.
This case established that an employer can be held responsible for the actions
of its employees if those actions are closely connected to the employee's
duties, even if they are unauthorized or negligent. It highlights the broad
scope of vicarious liability and the importance of careful supervision and
training of employees to minimize the risk of liability for employers.
The word 'Benefit' is vague and it is better to adhere to the words 'course of
employment' or the 'scope of authority.'
The principle of liability for one’s agent is much broader, extending to acts of
which the principal had no knowledge, that he had no intention to commit nor
involvement in, and that he may in fact have expressly prohibited the agent from
engaging in. This is the principle of respondeat superior (“let the master
answer”) or the master-servant doctrine, which imposes on the principal
vicarious liability (vicarious means “indirectly, as, by, or through a
substitute”) under which the principal is responsible for acts committed by the
agent within the scope of the employment.
The modern basis for vicarious liability is sometimes termed the “deep pocket”
theory: the principal (usually a corporation) has deeper pockets than the agent,
meaning that it has the wherewithal to pay for the injuries traceable one way or
another to events it set in motion. A million-dollar industrial accident is
within the means of a company or its insurer; it is usually not within the means
of the agent-employee-who caused it.
The “deep pocket” of the defendant-company is not always very deep, however,.
For many small businesses, in fact, the principle of respondeat superior is one
of life or death.
One example was the closing in San Francisco of the
much-beloved Larraburu Brothers Bakery-at the time, the world’s second largest
sourdough bread maker. The bakery was held liable for $2 million in damages
after one of its delivery trucks injured a six-year-old boy. The bakery’s
insurance policy had a limit of $1.25 million, and the bakery could not absorb
the excess. The Larraburus had no choice but to cease operations.
The case of Larraburu Brothers Bakery is a significant legal precedent in the
context of vicarious liability. In this case, the bakery employed a delivery
driver to transport bread to various customers. While making a delivery, the
driver negligently left the delivery truck unattended with the engine running.
The truck rolled down a hill and collided with a car, causing damage and injury.
The injured party sued both the driver and the bakery for damages. The court
held that the bakery was vicariously liable for the driver's actions, even
though leaving the truck unattended was a clear violation of company policy. The
court reasoned that the driver was acting within the scope of his employment at
the time of the accident, as he was engaged in a task assigned to him by the
bakery (making a delivery).
The principle established in the Larraburu Brothers Bakery case is that an
employer can be held vicariously liable for the negligent actions of an
employee, even if those actions are in violation of company policy, as long as
they are closely connected to the employee's duties. This case illustrates the
broad scope of vicarious liability and highlights the importance of employers
taking reasonable steps to supervise and train their employees to minimize the
risk of liability.
The principle behind respondeat superior, which is Latin for "let the master
answer," is a legal doctrine that holds an employer or principal legally
responsible for the wrongful acts of an employee or agent, if such acts occur
within the scope of the employment or agency. The principle is based on the idea
that employers or principals benefit from the services of their employees or
agents and should therefore, bear the responsibility for their actions when
acting within the scope of their employment or agency.
34.6 Respondeat superior:
Under respondeat superior, the employer or principal may be held liable for the
negligent, reckless, or intentional acts of their employees or agents, even if
the employer or principal did not personally commit the wrongful act or did not
directly supervise the employee or agent at the time of the act. This doctrine
is often applied in cases of vicarious liability, where the employer or
principal is held responsible for the actions of their employees or agents in
order to ensure that victims of wrongful acts are able to obtain compensation
from the party that can most effectively bear the cost.
Respondeat superior raises three difficult questions:
Questions
- What type of agents can create tort liability for the principal?
- Is the principal liable for the agent’s intentional torts?
- Was the agent acting within the scope of his employment?
We will consider these questions in turn.
(1) Agents can create tort liability for their principal in several ways, including:
- Direct Liability for the Principal's Own Negligence: If the principal is directly negligent in hiring, supervising, or retaining an agent who commits a tort, the principal can be held liable for the agent's actions.
- Authorized Acts: If the agent commits a tort while acting within the scope of their authority, the principal can be held liable. This is based on the principle of respondeat superior.
- Unauthorized Acts: In some cases, the principal may be held liable for torts committed by an agent that are outside the scope of their authority if the agent's actions were in furtherance of the principal's business or if the principal ratified the agent's actions.
- Negligent Hiring, Training, or Supervision: If the principal fails to exercise reasonable care in hiring, training, or supervising an agent who then commits a tort, the principal may be held liable for the agent's actions.
- Non-Delegable Duties: Some duties cannot be delegated by the principal to an agent, and the principal may be held directly liable for any torts related to those duties. Examples include the duty to provide a safe work environment or the duty to properly maintain property.
Note: The specific rules regarding when a principal can be held liable for the actions of an agent vary by jurisdiction and by the specific circumstances of each case.
(2) Intentional Torts
A principal can be liable for an agent's intentional torts under certain circumstances. The key factor is whether the agent was acting within the scope of their employment when committing the intentional tort.
- If the agent's actions were within the scope of their employment, the principal may be held vicariously liable.
- The principal may also be directly liable for their own negligence in hiring, supervising, or retaining the agent if it contributed to the commission of the intentional tort. This is known as negligent retention or supervision.
- However, if the agent's intentional tort was committed outside the scope of their employment and was not in furtherance of the principal's business, the principal may not be held vicariously liable. In such cases, the agent would be solely responsible for their actions.
(3) Scope of Employment
Determining whether the action of an agent was within the scope of their employment involves considering several factors. Courts look at the following elements:
- Nature of the Act: Was the act the kind that the agent was employed to perform?
- Time, Place, and Purpose: Did the act occur during the period of employment, at a location where the agent was expected to be, and while performing work-related tasks?
- Extent of Authority: Did the agent have the authority to perform the act?
- Benefit to the Employer: Did the act further the employer's interests in some way?
- Foreseeability: Was the act a foreseeable consequence of the agent's duties?
- Course of Conduct: Has the agent engaged in similar acts in the past that were considered within the scope of employment?
Ultimately, the determination of whether an act was within the scope of employment is a factual question that depends on the specific circumstances of each case. Courts will consider all relevant factors to determine the nature and extent of the agent's employment duties and whether the act in question falls within those duties.
34.7 Agents for Whom Principals Are Vicariously Liable
Principals can be liable vicariously for the acts of their agents under the legal doctrine of respondeat superior. This doctrine holds that a principal can be held responsible for the wrongful acts of his agent if those acts occur within the scope of agency relationship.
Under respondeat superior, if an agent commits a tort while acting within the scope of his agency, the Principal may be held vicariously liable for the resulting harm. This means that even if the principal did not personally commit the wrongful act and may have been unaware of it, he can still be held responsible for the actions of his agent.
It's important to note that there are limitations to vicarious liability, and not all acts of agents will result in liability for the principal. Factors such as whether the act was authorized, whether it was for the benefit of the principal, and whether it was within the scope of the agent's authority will all be considered in determining the principal's liability.
34.8 Employee and independent contractor:
The primary difference between an employee and an independent contractor lies in the degree of control and independence they have in their work:
- Control
The first is the ‘control test’. This involves asking who, exactly, is in control of the individual’s work. Employees tend to have the nature of their task dictated specifically by their employer, whilst independent contractors tend to have more personal control. Imagine an independent electrician - you’d hire them to wire your house, but you wouldn’t tell them which wire to put where.
The source of the control test can be found in Yewen v Noakes [1880] 6 QBD 530. The defendant was attempting to benefit from a law which stated that a lesser amount of duty (read: tax) was payable on properties which were inhabited by an employee of the owner. The courts held that the occupier was not an employee, since he was not ‘a person who is subject to the command of his master as to the manner in which he shall do his work’.
This test works well in conventional employment situations - many employees are subject to the whims of their employers, and wouldn’t find it odd if they were ordered to carry out a particular task. However, there are many employment situations which don’t come under the Yewen definition, particularly where the employee is acting with a high level of skill. A hospital trust will employ many surgeons and doctors, but is hardly well placed to tell someone how to carry out brain surgery or deliver a baby.
- Employee: An employer has the right to control the details of how an employee performs their work. This includes setting work hours, providing tools and equipment, and directing the employee's activities.
- Independent Contractor: An independent contractor has more control over how they perform their work. They are hired to complete a specific project or task and have the freedom to decide when, where, and how to complete it.
- Organisation and Integration Test
The ‘organisation’ or ‘integration test’ distinguishes between people who sign contracts of service and those who contract to provide services. Employees tend to do work which is integral to the business’s operations, whilst independent contractors tend to do work which is ancillary to the main functions of the business. This principle can be seen at play in Stevenson, Jordan & Harrison Ltd v MacDonald & Evans.
- The Economic Reality Test
It involves examining the characteristics of the subject’s work arrangements against a checklist of signs of conventional employment. The test appears in Ready Mixed Concrete Ltd v Minister of Pensions. A driver contracted with a mixed concrete company for the delivery of concrete. The contract declared him an “independent contractor” and set out wages and expenses. The driver was to purchase his own vehicle, yet with a requirement that the vehicle be painted in company colours. He was to drive the vehicle himself but under compliance with certain company’s rules including, for example, the manner of vehicle repairs and payments.
The question arose as to whether the driver was an “employed person” under a contract of service with the company for the purposes of the National Insurance Act 1965.
Firstly, the Court held that whether a contract creates a ‘master and servant’ relationship between an employer and employee is determined on the basis of contractual rights and duties, and that the nomenclature used in the contract is irrelevant. Thus, the fact that the contract termed the driver to be an “independent contractor” is not material.
Secondly, the Court held that employment under a contract of service exists when:
- A person agrees to perform a service for a company in exchange for remuneration.
- A person agrees, expressly or impliedly, to subject himself to the control of the company to a sufficient degree to render the company his “master,” including control over the task’s performance, means, time.
- The contractual provisions are consistent with ordinary contracts of service.
On the facts, the Court held that the driver had sufficient freedom in the performance of his contractual obligations as he was free to decide the vehicle, his own labour, fuel, and other requirements in the performance of the task. In lieu of these freedoms, he was an independent contractor and not an employee of the company.
Particular characteristics to look out for include:
- Working Hours: Employees tend to have fixed hours (or else a set amount of hours which they can structure flexibly). Independent contractors tend to have far more open arrangements.
- Payment: Employees tend to have set weekly or monthly salaries. Contractors tend to be paid per job and lack guaranteed income.
- Tax: Employees have taxes withheld by employers; contractors pay their own taxes including self-employment tax.
- Equipment: Employees are provided with equipment; contractors typically supply and maintain their own.
- Independence: Employees are bound to specific duties. Contractors can refuse work, change terms, and work for multiple employers.
- Benefits: Employees may receive benefits like insurance and paid leave. Independent contractors do not receive such benefits.
- Duration of Relationship: Employment is typically ongoing. Contractors are hired for specific tasks with defined end dates.
- Liability: Employers are liable for employees' acts within scope of employment; contractors are liable for their own actions.
It's important for businesses to correctly classify workers as employees or independent contractors, as misclassification can lead to legal and financial consequences. The classification is based on the nature of the work relationship and is not simply a matter of how the parties label the relationship.
34.9 Contract of employment and contract for employment:
The terms "contract of employment" and "contract for employment" are often used interchangeably, but they can have slightly different meanings depending on the context. Here's a general distinction:
- 1. Contract of Employment: This term refers to the actual agreement between an
employer and an employee. It outlines the terms and conditions of employment,
such as the duties and responsibilities of the employee, the hours of work, the
rate of pay, and any other relevant terms. This contract is usually more
specific and detailed, and it is often written (although it can also be oral or
implied).
Examples:
Individual Employment Contract: An individual contract between a company and an employee that outlines the terms and conditions of employment, including salary, benefits, job responsibilities, and termination procedures.
Collective Bargaining Agreement (CBA): A contract negotiated between an employer and a labor union that represents a group of employees. The CBA sets out the terms and conditions of employment for all employees covered by the agreement, including wages, hours, and working conditions.
Zero-Hours Contract: A type of contract where the employer does not guarantee any minimum number of hours of work to the employee. The employee is only paid for the hours they actually work. - Contract for Employment: This term can refer to a broader concept, often used in legal contexts, to describe the overall relationship between an employer and its employees. It may encompass not only the individual contracts of employment but also the general legal framework that governs the relationship, including employment laws, regulations, and policies. In this sense, it is a more abstract and encompassing concept than a specific contract of employment.
Example:
Employment Law: The body of law that governs the rights and obligations of
employers and employees. This includes laws related to minimum wage, overtime
pay, discrimination, and health and safety in the workplace.
Company Policies and Procedures: The set of rules and guidelines established by
an employer to govern the behavior and expectations of employees. This may
include policies on attendance, dress code, and use of company resources.
Industry Regulations: Regulations imposed by government agencies or industry
bodies that govern the employment practices within a particular industry.
Examples include safety regulations for construction workers or licensing
requirements for healthcare professionals.
In these examples, the contract of employment is a specific agreement between an
employer and an employee, while the contract for employment refers to the
broader legal framework and regulations that govern the employment relationship.
34.10 Definition of an ’employee’ and ‘worker’
The definitions of "employee" and "worker" can vary depending on the
jurisdiction and context, but generally:
1. Employee: An employee is an individual who works for an employer under an
employment contract, either written or oral, and has the status of being
employed by that employer. Employees have their work controlled and directed by
the employer, receive a regular wage or salary, and are entitled to employment
rights and benefits under the law.
2. Worker: The term "worker" is often used in a broader sense to refer to anyone
who performs work or services for another person or organization, regardless of
their employment status. This can include employees as well as independent
contractors and other individuals who may not have the full rights and benefits
of employees but are still entitled to certain protections under employment law,
such as the right to a minimum wage and holiday pay.
In some jurisdictions, there may be legal definitions that distinguish between
employees and workers for the purposes of determining rights and obligations
under employment law.
The scope of the definition of an "employee" under the Employees Provident Funds
and Miscellaneous Provisions Act, 1952 (EPF Act) has come up time and again
before the courts in India. This issue often arises in situations wherein
workers engaged by an establishment are working from home or are being paid on a
piece-rate basis.
The courts have developed certain criteria to examine the nature and scope of
work being carried out and the relationship that is developed by such
engagement. The control and supervision principle, ultimate authority principle
and integration principle are common tests that are applied by courts while
examining such fact situations.
Recently, the Supreme Court of India in Officer in Charge, Sub Regional
Provident Fund Office and Another v. M/s Godavari Garments Limited dealt with a
similar situation and was asked to decide whether the women workers engaged by
M/s Godavari Garments Limited (Godavari Garments), who used their own sewing
machines and worked from home to prepare garments, would qualify as employees
under the EPF Act.
The Supreme court set-aside a Bombay High Court ruling which stated that a group
of female workers of a company in Maharashtra do not fall within the definition
of ‘employee’ under Section 2(f) of the Employee’s Provident Fund and
Miscellaneous Provisions Act, 1952 (EPF Act) and therefore, they are not
entitled to the benefits of the provident funds.
The Respondent Company argued that these women were mostly engaged in making
garments from the raw materials provided by the Company but they used their own
machines. It was also contended by the respondents that these women worked from
home and not at the production centre. The respondents claimed that the company
did not exercise any supervisory control over these women and therefore, they do
not fall within the definition of ‘employee’ as provided in the EPF Act.
Section 2(f) of the EPF Act states that:
“employee” means any person who is employed for wages in any kind of work,
manual or otherwise, in or in connection with the work of an establishment, and
who gets, his wages directly or indirectly from the employer, and includes any
person,-
(i) employed by or through a contractor in or in connection with the work of the
establishment;
(ii) engaged as an apprentice, not being an apprentice engaged under the
Apprentices Act, 1961 (52 of 1961), or under the standing orders of the
establishment;
The Court said that this is “an inclusive definition and is widely worded to
include any person engaged either directly or indirectly in connection with the
work of an establishment.” It was also pointed out by the Apex Court that the
company had the right to reject the final product made by these workers and in
an earlier case it was decided by the Supreme Court that ‘the right of rejection
can constitute in itself an effective degree of supervision and control’. The
Court held that these female workers were employees of the Respondent Company
under Section 2(f) of the EPF Act.
Thus, the court allowed the appeal and set aside the decision of the Bombay High
Court to declare that these female workers were entitled to the benefits of the
provident funds.
In the context of the Workmen's Compensation Act (now known as the Employee's
Compensation Act), the term "workman" refers to a person who is employed to do
manual labor or who is engaged in work that requires physical effort. The Act
provides for compensation to be paid to workmen who suffer injury or death as a
result of accidents arising out of and in the course of their employment.
The Act defines a workman as:
Any person employed in any employment to do any work for hire or reward, whether
the terms of employment are expressed or implied.
Any person employed in any employment, including casual workers, who is employed
in connection with the work of an establishment and whose total earnings in a
month do not exceed the prescribed limit.
The definition of a workman under the Act is broad and includes a wide range of
employees who are engaged in manual or physical work. The Act aims to provide
compensation to such workers in the event of injury, disability, or death
arising out of their employment, regardless of whether the employer was at
fault.
Control Test:
The first significant test which the courts developed was the so-called ‘control
test’. This was first espoused in the nineteenth century case of Yewens v Noakes.
In this case, the Respondent was a hops merchant and possessed certain houses,
which had an internal communication throughout, and which were used for the
purposes of his business. Keppel looked after the houses, and lived in them for
this purpose, but he was also a clerk in the Respondent’s pay at a set annual
salary. He lived in the houses with his wife, a child, and a servant. The case
concerned the payment of inhabited house duty, and a key question was whether
Keppel was the servant of the Respondent. It was held that in this instance,
Keppel was not (and, therefore, the Respondent was liable to pay the duty). On
appeal, however, it was held that the premises were held purely for trade
purposes, and as Keppel’s position was simply that of a caretaker, the exemption
claimed was allowed. A servant, it was stated, is a person subject to the
command of his master as to the manner in which he shall do his work (Bramwell,
LJ). The question of whether a person is an employee, then, according to this
test, depends upon the degree of control which the ’employer’ exercises over the
worker.
Facts of the case:
Mr. Yewens was a landowner who employed Mr. Noakes as his farm bailiff or
manager.
The agreement between Yewens and Noakes included provisions for Noakes to manage
the farm, including the hiring and firing of employees, and for Noakes to
receive a salary and a commission on sales.
Legal Issue:
The legal issue in this case was whether the relationship between Yewens and
Noakes constituted a contract of service (employment) or a contract for services
(independent contractor).
Court Decision:
The court held that the relationship between Yewens and Noakes was a contract of
service (employment).
The court considered various factors, including the degree of control exercised
by Yewens over Noakes, the method of payment, and the provision of tools and
equipment, and concluded that these factors indicated an employer-employee
relationship.
Significance:
The case of Yewens v Noakes is significant because it established the principle
that the relationship between a master and servant (employer and employee) is
determined by considering the degree of control exercised by the master over the
servant.
This principle is important in distinguishing between employees and independent
contractors, as it helps to determine the rights and obligations of the parties
involved, particularly in relation to issues such as liability and entitlement
to benefits.
Independent Contractor
In the law of torts, an independent contractor is a person or entity who is
hired to perform a specific task or job, but who retains control over the manner
and means of carrying out that task. Unlike an employee, an independent
contractor is not under the direct control of the person or entity hiring them
and is hired for a specific project or period of time. Independent contractors
are not considered employees, and therefore, the person or entity hiring them is
generally not vicariously liable for their actions in the same way that an
employer would be for the actions of an employee.
A plumber who rushes to a client’s house to repair a leak and causes a traffic
accident cannot subject the homeowner to liability. But there are exceptions to
the rule. Generally, these exceptions fall into a category of duties that the
law deems nondelegable. In some situations, one person is obligated to provide
protection to or care for another. The failure to do so results in liability
whether or not the harm befell the other because of an independent contractor’s
wrongdoing. Thus, a homeowner has a duty to ensure that physical conditions in
and around the home are not unreasonably dangerous. If the owner hires an
independent contracting firm to dig a sewer line and the contractor negligently
fails to guard passersby against the danger of falling into an open trench, the
homeowner is liable because the duty of care in this instance cannot be
delegated. (The contractor is, of course, liable to the homeowner for any
damages paid to an injured passerby.)
B. Govindarajulu Chetty vs. M.L.A. Govindaraja Mudaliar and Ors.:
The case arose from a claim made before the Motor Accidents Claims Tribunal
under Section 110 of the Motor Vehicles Act. The appellant’s son, aged about 24
years, was riding a cycle from Elephant Gate to the Central Station when he met
with an accident. A lorry came from behind, hit him, and threw him off the
ground. The accident occurred on Walltax Road on January 22, 1962, around 6:15
p.m.
Parties Involved:
Appellant: The father of the deceased.
Respondents:
First Respondent: Owner of the lorry involved in the accident.
Second Respondent: Insurance company.
Third Respondent: Owner of a workshop and a lorry repairer to whom the lorry was
entrusted for repairs.
Fourth Respondent: The person who drove the lorry during the accident.
Claims and Defenses:
The appellant claimed compensation for the death of his son due to the negligent
driving of the lorry. Respondents 1 and 2 contested the claim, arguing that:
The first respondent was not liable because he had entrusted the lorry to the
third respondent (an independent contractor) for repairs. The fourth respondent
had no license to drive the lorry. Even if the third and fourth respondents were
liable, respondents 1 and 2 couldn’t be held vicariously liable.
Tribunal’s Decision:
The Accidents Claims Tribunal found that the accident resulted from the
negligent driving of the fourth respondent. It awarded the appellant Rs. 8000 as
compensation. However, it held that the relationship between the first and
third/fourth respondents was that of an independent contractor, not master and
servant. Therefore, respondents 1 and 2 were not vicariously liable.
Performing Right Society Ltd v Mitchell and Booker Ltd
In this case, the court considered whether the members of a band hired by a
dance hall company were employees of the company or independent contractors. The
crucial factor in this case was the level of control exercised by the dance hall
company over the band members. The court found that the company had significant
control over the band, including determining the type of music to be performed
and how the band members behaved during their performance. As a result, the
court considered the band members to be employees rather than independent
contractors. This decision was significant because it established that the
company was liable for copyright infringement for the public performance of
copyrighted music by its employees.
In this, McCardie J stated that “the final test… lies in the nature and degree
of detailed control over the person alleged to be a servant.”
This would, at first sight, appear to be a sensible and fairly straightforward
test that would be able to identify quite easily who was an employee. There are,
however, difficulties which arise from this test. A common objection to this
test revolves around the situation of an agency worker. An agency worker is
hired out to a person other than their strict employer (the agency itself), and
the agency worker then becomes subject to the requirements of the hirer (as
opposed to their employer).
In the case of Honeywill and Stein Ltd v Larkin Bros Ltd, a person is an
employee where the employer ‘retains control of the actual performance of the
work’. In the case of the agency worker, though, the agency itself retains very
little control over the performance of the worker’s work.
The difficulties which arise from this sort of situation have led some judges to
apply a slightly different test, known as the integration / organisation test.
This was initially expounded in the case of Stevenson, Jordan & Harrison Ltd v
MacDonald and Evans (1952).
The case of Stevenson, Jordan & Harrison Ltd v MacDonald and Evans dealt with
the issue of whether an individual was considered an employee under a "contract
of service" for the purposes of copyright law.
Case Background:
The case involved a dispute over the ownership of the copyright in certain works
created by an author, Mr. Macaulay, who had entered into an agreement with a
publishing company, MacDonald and Evans.
The agreement between Macaulay and MacDonald and Evans stated that Macaulay
would create certain works, including books and articles, for the publisher.
The publisher argued that Macaulay was an employee under a "contract of service"
and that therefore, the copyright in the works belonged to the publisher.
Macaulay argued that he was an independent contractor and that he retained the
copyright in the works.
Legal Issue:
The legal issue in this case was whether Macaulay was considered an employee
under a "contract of service" for the purposes of the Copyright Act 1911.
Court Decision:
The House of Lords held that Macaulay was not an employee under a "contract of
service" but was rather an independent contractor. Lord Atkin stated that "a
servant is a person subject to the command of his master as to the manner in
which he shall do his work" and that Macaulay did not fit this description.
Therefore, Macaulay retained the copyright in the works he created, and the
publisher did not have the right to the copyright.
Significance:
The case is significant because it established an important principle in
copyright law regarding the ownership of copyright in works created under a
contract. It clarified that the determination of whether an individual is an
employee or an independent contractor is crucial in determining the ownership of
copyright in works created under a contract.
In this case, Lord Denning stated that ‘one feature which seems to me to run
through the 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 is only accessory to it.’ This test has also been
criticised, however, on the grounds that contracting out, especially in the
modern business world, can be integral to business, so the test becomes
paradoxical.
In the far more recent case of Lee Tin Sang v Chung Chi-Keung, a different
approach was utilised.
The case of Lee Tin Sang v Chung Chi-Keung, which also dealt with the issue of
whether an individual was considered an employee for the purposes of copyright
ownership, took a different approach compared to the case of Stevenson, Jordan &
Harrison Ltd v MacDonald and Evans.
Case Background:
Lee Tin Sang was a photographer who took photographs of certain buildings, and
Chung Chi-Keung was a developer who commissioned Lee to take the photographs.
The question was whether Lee was an employee of Chung under a "contract of
service" for the purposes of copyright ownership.
Difference in Approach:
Unlike in the case of Stevenson, Jordan & Harrison Ltd v MacDonald and Evans,
where the court focused on the degree of control exercised by the employer over
the employee, the court in Lee Tin Sang v Chung Chi-Keung took a broader
approach.
The court considered various factors, including the degree of control, the
method of payment, the provision of equipment, and the intention of the parties.
The court emphasized that the key question was whether Lee was in a position of
economic dependence on Chung.
Court Decision:
The court held that Lee was an employee of Chung under a "contract of service"
for the purposes of copyright ownership.
The court's decision was based on the finding that Lee was economically
dependent on Chung for his livelihood and that Chung exercised sufficient
control over Lee's work to establish an employer-employee relationship.
Significance:
The case of Lee Tin Sang v Chung Chi-Keung is significant because it
demonstrates that the determination of whether an individual is an employee for
the purposes of copyright ownership is not solely based on the degree of control
exercised by the employer.
Instead, the courts will consider various factors to determine the nature of the
relationship between the parties and whether it constitutes an employer-employee
relationship for the purposes of copyright ownership
The relevant question was ‘is the worker in business on his own account?’ In
order to answer this question, the court will consider such things as who owns
the tools used, who paid for the materials, and whether the worker stands to
make anything from a profit to a loss on completion of the enterprise. An
example of an employee according to this test would be a building worker who is
paid, but neither hires his own help nor provides his own equipment and has no
say in the control of the site. This test, then, is based upon personal
investment in the enterprise.
With all these tests, there remain certain categories of worker who are still
problematic. Hospital staff, for example, have caused considerable trouble. It
is now generally held that nurses, radiographers, house surgeons and assistant
medical officers in full time service of hospitals are employees, as will
surgeons and consultants. Borrowed employees also create a problem, as was
identified in the case of Mersey Docks and Harbour Board v Coggins and Griffith
(Liverpool) Ltd. When a person is lent by his employer to another, whose
employee does he become?
In cases of negligence transference, when an employee works for a third party,
the legal responsibility for their actions shifts from the regular employer to
the hirer.
Liability determination depends on factors like the incident's circumstances,
the driver's actions, and the contractual terms between the regular employer and
hirer.
The legal doctrine of Respondeat Superior holds employers vicariously liable for
their employees' actions within the scope of employment.
Specific terms defining the scope of work, driver responsibilities, and
insurance provisions significantly influence legal outcomes in cases involving
negligence and injury while hiring a mobile crane and driver.
FACTS
Mersey Docks And Harbour Board (‘The Harbour Authority’) leased a mobile crane
to a stevedores firm to load a ship.
As part of the arrangement, the Harbour Authority provided a craneman for the
operation.
This craneman was directly employed, paid, and subject to dismissal by the
harbour authority, despite the general hiring conditions indicating that such
cranemen should be considered the servants of the hirers.
During the operation, the craneman, under the immediate direction and control of
the stevedores, negligently drove the crane, resulting in injury to a third
person.
It's important to note that although the stevedores had immediate control over
the movement of each piece of cargo, they lacked the authority to dictate how
the crane should be operated or manipulate its controls.
In response to the incident, the injured party filed a lawsuit seeking damages
against both the Harbour Authority and the stevedores.
The legal dispute revolved around the circumstances of the crane operation, the
employment relationship between the Harbour Authority and the craneman, and the
specific details outlined in the hiring conditions governing the mobile crane
use.
JUDGEMENT
In the judgment, it was held that the Harbour Authority, being the general
permanent employer, bears liability in the case.
The Harbour authority failed to meet the significant burden of proof required to
shift the prima facie responsibility for the craneman's negligence to the
stevedores.
The craneman, in the course of his driving, was exercising discretion granted to
him by the Harbour authority, and this exercise of discretion was a key factor
in the negligence.
Determining which party was the employer responsible for the craneman's
negligence was not dictated by any explicit agreement between the Harbour
Authority and the stevedores.
The court emphasised that the Harbour Authority, as the general permanent
employer, retained a fundamental responsibility, especially considering the
discretion vested in the craneman during the operation.
As a result, the liability for the negligent actions of the craneman was
attributed to the harbour authority.
COMMENTARY
This legal scenario involves the leasing of a mobile crane by a Harbour
Authority to a stevedore’s firm for ship-loading, complicated by the employment
of a craneman directly by the Harbour Authority.
The discrepancy between hiring conditions and employment structure highlights
nuanced liability issues.
Despite being under the stevedores' control, the craneman's exercise of
discretion granted by the Harbour Authority played a crucial role in the
negligence.
The court scrutinized the Harbour Authority's failure to shift responsibility
for the craneman's negligence to the stevedores, emphasizing the primary
responsibility of the general permanent employer.
The absence of a clear agreement on the responsible employer added complexity.
The court attributed liability to the Harbour Authority, recognizing its
overarching responsibility and the importance of the craneman's discretion.
This case illuminates the intricacies of legal liability in situations involving
shared responsibilities, contractual agreements, and the exercise of discretion
within an employment relationship.
ORIGINAL ANALYSIS
Plaintiff was injured by X who was operating a crane. X was employed and the
crane owned by Defendant, who had let both to Y.
Plaintiff sued Defendant and HL allowed Plaintiff’s claim, saying that Defendant
was liable rather than Y.
Lord Macmillan
It is possible for the general employer to show that the employee had been
transferred the servant’s services for a particular occasion to another party,
so as to make the other party liable, but the burden is on the general employer
and here he had failed to show this.
It was held that someone remains the employee of the general or permanent
employer although another employer borrows his services. If the servant is
temporarily lent to another person and the temporary master exercises control
and supervision over the servant, the master may not be accountable for the
servant's actions.
34.11 Importance of distinction between employee and independent contractor:
One of the main reasons why the distinction between employees and independent
contractors is so important is as follows. If an employee commits a tort in the
course of his employment, then the employer is liable whether or not he himself
has committed the tort.
In the case of Bartonshill Coal Co v McGuire, the plaintiff, McGuire, was a
miner employed by Bartonshill Coal Company. Due to the negligence of the company
in failing to properly secure a mine shaft, a large boulder fell down the shaft,
causing injuries to McGuire. McGuire sued the company for damages for his
injuries.
In this case, the negligence of the company's agents or employees in failing to
secure the mine shaft was considered to be done in the course of their
employment, and therefore, the company was held liable for McGuire's injuries.
The case of Bartonshill Coal Co v McGuire is significant for establishing the
principle that "every act which is done by a servant in the course of his duty
is regarded as done by his master's orders, and consequently is the same as if
it were the master's own act." This principle is a key aspect of the doctrine of
vicarious liability, which holds that an employer can be held responsible for
the actions of its employees that are done in the course of their employment. In
the context of the case, it meant that the negligence of the employer's agents
or employees, such as failing to properly secure a mine shaft, could be
attributed to the employer, making the employer liable for any resulting harm or
injury.
As Murphy states, this is the ‘clearest case of strict tortuous liability, and
it may be regarded as a judicial decision of policy that the employer can be
made to bear the financial responsibility for those torts committed by his
employees in the furtherance of his enterprise.’ An employer can, then, be
vicariously liable for the torts committed by his employees, but not independent
contractors.
Grant v Australian Knitting Mills Ltd The case did not directly address
vicarious liability in the context of identifying which employee breached a duty
of care. Instead, it focused on whether the manufacturer had breached its duty
of care to the consumer by selling a defective product. The court held that the
manufacturer was liable for the harm caused to the consumer due to the defective
product, establishing the principle of a duty of care owed by manufacturers to
consumers.
Vicarious liability, on the other hand, arises in situations where an employee
commits a tort (such as negligence) during the course of their employment, and
the employer is held liable for the employee's actions. This doctrine applies
even if the specific employee who committed the tort cannot be identified, as
long as the tort occurred within the scope of employment.
Vicarious liability can be established where a duty of care imposed on an
employer has been broken, but the claimant cannot identify which employee
breached it. An employer, then, will not escape liability where a particular
employee of his cannot be identified to have been responsible for the breach.
This was established in Grant v Australian Knitting Mills Ltd.
In the case of Roe v Minister of Health, it was stated that where the claimant
established negligence on the part of one or more of several employees of the
defendant hospital, the defendant authority was vicariously liable despite the
fact that the claimant could not prove which of the employees had been
negligent.
34.12 Employer-employee relationship
Employer- employee relationship is based on ordinary contractual relationship
where there is an offer from one party and acceptance from another party. The
two parties to employment contracts are the employer (the person who employs)
and the employee (the person who is employed). There is difficulty in
determining whether someone is an employee or not. For example, someone who is
not an employee is known as an independent contractor and here the laws relating
to employment law would not be applicable to an independent contractor.
An employee of an employer, technically one who works for a master. Employee is
a person who is hired for a wage, salary, fee or payment to perform work for an
employer. In agency, the employee is called an agent and the employer is called
the principal. This is important to determine if one is acting as employee when
injured (for worker's compensation) or when he/she causes damage to another,
thereby making the employer liable for damages to the injured party.
A servant is an agent who is subject to the control and supervision of his
employer regarding the manner in which the work is to be done even as to
details. The servant has established hours or piece work, he cannot work for
others and acts for the benefit of the employer rather than for himself/herself.
The employer of a servant must provide to the servant (employee) worker's
compensation insurance, makes income tax deductions, and provide benefit from
various labor laws.
Independent contractor is a person or business which performs services for
another person or entity under a contract with them, with the terms spelled out
such as duties, pay, the amount and type of work and other matters. An
independent contractor must be able to determine when and where work is
performed, be able to work for others, provide own equipment and other factors
which are indicative of true independence. An "independent contractor” operates
his/her own business even though spending much time on the work of a particular
person or entity he is not subject to any such control. He undertakes to do
certain work and regarding the manner in which the work is to be done, he is
responsible for statutory payments.
34.13 Servant
A servant may be defined as any person employed by ¬another to do work for him
on the terms that he, the servant, is to be subject to the control and
directions of his employer in respect of the manner in which his work is to be
done.
If we use the term agent to mean any person employed to do work for another, we
may say that agents are of two kinds, distinguishable as (1) servants and (2)
independent contractors. It is for the first kind of agent only, that his
employer is responsible under the rule which we are now con¬sidering. When the
agent is an independent contractor, his employer is not answerable save for
torts actually authorised by him. But when the agent is a servant, his employer
will answer not merely for all torts actually authorised, but also for all those
which are committed by the servant while en¬gaged in doing his master's
business, whether they are author¬ised or not.
What, then, is the test of this distinction between a servant and an independent
contractor?
The test is the existence of a right of control over the agent in respect of the
manner in which his work is to be done. A servant is an agent who works under
the supervision and direction of his employer; an independent contractor is one
who is his own master. A servant is a person engaged to obey his em¬ployer's
orders from time to time; an independent contractor is a person engaged to do
certain work, but to exercise his own discretion as to the mode and time of
doing it; he is bound by his contract but not by his employer's orders. " Upon
the principle that qui facit per ailium facit per se," says Baron Parke in
Quarman v. Burnett,' " the master is respon¬sible for the acts of his servant;
and that person is undoubted¬ly liable who stood in the relation of master to
the wrongdoer he who selected him as his servant from the knowledge of or belief
in his skill and care, and who could remove him for misconduct, and whose orders
he was bound to receive and obey."
Thus, my coachman is my servant, and if by negligent driving he runs over
someone in the street, I am responsible. But the cabman whom I engage for a
particular journey is not my servant; he is not under my orders; he has made a
contract with me, not that he will obey my directions, but that he will drive me
to a certain place; if an accident happens by his negligence, he is responsible,
and not I. So, I am re¬sponsible for the domestic servants in my house, but I am
not responsible for a skilled artisan whom I engage to do a certain job in my
house, for example to paint it or to mend a window. So, in Evans v. Liverpool
Corporation it was held that a municipal corporation establishing a hospital is
not responsible for the negligence of a physician appointed by them
The relationship of master and servant is commonly a continuing engagement in
consideration of wages paid; but this is not essential. One person may be the
servant of another on a single occasion and for an individual transaction,
provided that the element of control and supervision is present. More¬over the
service may be merely gratuitous, as when the owner of a carriage asks a friend
to drive it for him. On the same principle, a father may be responsible for the
torts of his children, provided that they are acting de facto as his servants.
A servant may have two or more masters at the same time in respect of different
employments. In particular a master may lend his servant to another person for a
certain transaction, so that quoad that employment he becomes the servant of the
person to whom he is so lent, though he remains for other purposes the servant
of the lender. When a servant is sent by his employer to do work for another, it
is a question of fact, depending on the nature of the arrangement and the degree
of control exercised over the servant, whether he comes quoad hoc the servant of
the person for whom he is working, or remains in all respects the servant of his
ordinary employer. When a servant has thus two masters, the re¬sponsibility for
a tort committed by him lies exclusively upon the master for whom and under
whose control he was working when he did the act complained of,
34.14 Partners
By the Partnership Act, the partners are jointly and severally liable for each
other’s torts committed in the ordinary course of the business of the firm.
Thus, in Hamlyn v. Houstoni a firm was held liable for the act of one of the
part¬ners who, on behalf of the firm, induced by bribery a servant of the
plaintiff to commit a breach of his contract of service. Whether the act of a
partner is one done in the course of the business of the firm is a question to
be determined on the same considerations as those which determine the
responsi¬bility of a master for the acts of his servant. Indeed, for this
purpose we may regard each partner as the servant of the firm.
Catholic Child Welfare Society v Institute of the Brothers of the Christian
Schools [2012] UKSC 56
In this case, the Supreme Court of the United Kingdom examined issues of
vicarious liability in the context of historical sexual abuse by employees of a
school.
Case Background
The case involved a number of claimants who had been sexually abused by teachers
at schools run by the Institute of the Brothers of the Christian Schools. The
claimants alleged that the Institute was vicariously liable for the actions of
the abusive teachers.
Legal Issue
The main legal issue in this case was whether the Institute could be held
vicariously liable for the actions of the abusive teachers.
Court Decision
The Supreme Court held that the Institute was vicariously liable for the actions
of the abusive teachers. The court noted that the relationship between the
teachers and the Institute was one of employment, and that the abuse had
occurred in the course of the teachers’ employment. The court also considered
the fact that the Institute had created the risk of the abuse occurring by
placing the teachers in positions of authority over vulnerable children.
Significance
The case of Catholic Child Welfare Society v Institute of the Brothers of the
Christian Schools [2012] UKSC 56 is significant because it reaffirmed the
principles of vicarious liability in cases of historical sexual abuse.
The decision highlighted the importance of holding institutions accountable for
the actions of their employees, particularly in cases where the employees are in
positions of authority over vulnerable individuals. The case also underscored
the need for institutions to take proactive steps to prevent abuse and to
respond appropriately when abuse does occur.
Bazley v Currie (1999) 174 DLR (4th) 45 In the case of Bazley v. Curry [1999] 2
S.C.R. 534, the Supreme Court of Canada examined the principles of vicarious
liability in the context of sexual abuse by an employee. The case established
important principles regarding the scope of an employer’s liability for the
actions of its employees.
Case Background
The case involved a young girl who was sexually abused by a staff member at a
residential facility operated by the Children’s Foundation.
The staff member, Mr. Curry, had a history of sexually abusing children, which
the Foundation was aware of but failed to act upon.
Legal Issue
The main legal issue in this case was whether the Children’s Foundation could be
held vicariously liable for the actions of Mr. Curry.
Court Decision
The Supreme Court of Canada held that the Children’s Foundation was vicariously
liable for the actions of Mr. Curry.
The court emphasized that vicarious liability is based on the idea of social
justice and the need to compensate victims of wrongful acts, even if the
employer did not directly cause the harm.
The court also noted that vicarious liability serves as an incentive for
employers to take reasonable steps to prevent harm caused by their employees.
Significance
The case of Bazley v. Curry is significant because it expanded the scope of
vicarious liability in cases of sexual abuse by employees.
The decision highlighted the importance of holding employers accountable for the
actions of their employees, particularly in cases where the employer is in a
position to prevent the harm.
The case also underscored the broader societal interest in providing
compensation to victims of wrongful acts, even if the direct wrongdoer is unable
to fully compensate the victim.
Dubai Aluminium v Salaam
In Dubai Aluminium Co. Ltd v Salaam [2003] UKHL 48, the House of Lords (now the
Supreme Court) considered the issue of vicarious liability in the context of a
solicitor firm’s liability for the actions of one of its partners.
Facts
Mr. Salaam was a partner in a firm of solicitors that acted for Dubai Aluminium
Co. Ltd (Dubal). Mr. Salaam assisted a client of the firm in defrauding Dubal by
facilitating the transfer of funds from Dubal to the client. Mr. Salaam’s
actions were found to be dishonest and were undertaken without the knowledge or
consent of the other partners in the firm.
Legal Issues
The main legal issue in this case was whether the firm could be held vicariously
liable for Mr. Salaam’s dishonest assistance to the client. Vicarious liability
requires a close connection between the wrongful act and the nature of the
relationship between the wrongdoer and the defendant.
Court Decision
The House of Lords held that the firm was vicariously liable for Mr. Salaam’s
actions.
The court also considered the fact that Mr. Salaam had used the firm’s resources
and position to carry out the fraud, which further supported the finding of
vicarious liability.
The House of Lords held that, as a point of law, whether the conduct of an
employee occurs during the “ordinary course of employment” is to be given an
“extended scope” (para. 22) as the underlying legal policy of vicarious
liability recognises the risks borne by business enterprises to third parties,
and that when “those risks ripen into loss, it is just that the business should
be responsible for compensating the person who has been wronged.” (para. 21).
Accordingly, the Court held that the fact that the partner’s conduct was not
authorised by his co-partners and the personal innocence of the co-partners
thereto is not relevant to their vicarious liability. The partner was acting in
his capacity as an employee of the firm when he aided in drafting the
consultancy agreement and other documentation. Thus, the firm was held
vicariously liable for the damages borne by the partner’s dishonest assistance.
Significance
The case of Dubai Aluminium Co. Ltd v Salaam clarified the scope of vicarious
liability in cases involving partners in professional firms. The decision
emphasized that vicarious liability can arise even when the wrongful actions of
an employee or partner are undertaken without the knowledge or consent of the
employer or other partners. The case also highlighted the importance of firms
taking steps to prevent and detect fraud by their employees and partners, as
they may be held vicariously liable for their actions.
Overall, Dubai Aluminium Co. Ltd v Salaam is an important case in the
development of vicarious liability law, particularly in relation to professional
firms and the actions of their partners. For the firm to be vicariously liable
for the partner’s actions, the wrongful conduct must have occurred in the
ordinary course of the firm’s business.
34.15 Course of employment and arising out of employment:
In tort law, the concepts of "course of employment" and "arising out of
employment" are important in determining whether an employer can be held
vicariously liable for the actions of an employee. These concepts help to define
the scope of the employer's liability for the actions of their employees. Here's
a breakdown of these concepts:
34.15.1 Course of employment:
An employer is not responsible for all of the acts one of their employees
carries out. The concept of "course of employment" refers to the time, place,
and circumstances in which an employee is authorized to perform their duties on
behalf of the employer.
It is deemed to be so done if it is either (a) a wrongful act authorised by the
master, or (b) a wrongful and unauthorised mode of doing some act authorised by
the master.
It is clear that the master is responsible for acts actually authorised by him;
for liability would exist in this case, even if the relation between the parties
were merely one of agency, and not one of service at all. But a master, as
opposed to the employer of an independent contractor, is liable even for acts
which he has not authorised, provided they are so connected with acts which he
has authorised, that they may rightly be regarded as modes although improper
modes of doing them. In other words, a master is responsible not merely for what
he authorises his servant to do, but also for the way in which he does it. In
respect of the manner of his work a servant is, as we have seen, under the
control of his master; and this control brings with it a corresponding
responsibility. Therefore, if a servant does negligently that which he was
authorised to do carefully, or if he does fraudu¬lently that which he was
authorised to do honestly, or if he does mistakenly that which he was authorised
to do correctly, his master will answer for that negligence, fraud, or mistake.
In all these cases it may be said that the master has not authorised the act. It
is true he has not authorised the particular act, but he has put the agent in
his place to do that class of acts, and he must be answerable for the manner in
which the agent has conducted himself in doing the business which it was the act
of his master to place him in.
An employee's actions are considered to be in the course of employment if they
occur within the authorized time and place of work, and while the employee is
engaged in activities that further the employer's business interests.
For example, if an employee is driving a company vehicle to make a delivery and
is involved in an accident, the employer may be held liable for any harm caused
because the employee was acting in the course of their employment.
34.15.2 Arising Out of Employment
The concept of "arising out of employment" refers to the connection between the
employee's actions and the nature of their employment.
An employee's actions are considered to arise out of employment if there is a
sufficiently close connection between the employee's job duties and the harm
caused.
For example, if an employee is required to lift heavy boxes as part of their job
and injures their back while lifting, the injury may be considered to arise out
of employment because it is directly related to the nature of the employee's job
duties.
Significance
The concepts of course of employment and arising out of employment are important
in determining whether an employer can be held vicariously liable for the
actions of an employee. If an employee's actions are deemed to be in the course
of employment and arising out of employment, the employer may be held liable for
any harm caused by those actions, even if the employer did not directly
authorize or intend the actions. These concepts help to establish the boundaries
of an employer's liability and ensure that employers are held accountable for
the actions of their employees when those actions are closely connected to the
nature of their employment.
Mackinnon Mackenzie & Co. Pvt. Ltd vs Ibrahim Mahommed Issak on 14 August, 1969
To come within the Act the injury by accident must arise both out of and in the
course of employment. The words "in the course of the employment" mean "in the
course of the work which the workman is employed to do and which is incidental
to it." The words "arising out of employment" are understood to mean that
"during the course. of the employment, injury has resulted from some risk
incidental to the duties of the service, which unless engaged in the duty owing
to the master, it is reasonable to believe the workman would not otherwise have
suffered." In other words there must be a causal relationship between the
accident and the employment. The expression "arising out of employment" is again
not confined to the mere nature of the employment. The expression applies to
employment as such to its nature, its conditions, its obligations and its
incidents. If by reason of any of these factors the workman is brought within
the scene of special danger the injury would be one which arises 'out of
employment'. To put it differently if the accident had occurred on account of a
risk which is an incident of the employment, the claim for compensation must
succeed, unless of course the workman has exposed himself to an added peril by
his own imprudent act.
In Lancashire and Yorkshire Railway Co. v. Highley Lord Sumner laid down the
following test for determining whether an accident "arose out of the
employment":
In the case of death caused by accident the burden of proof rests upon the
workman to prove that the accident arose out of employment as well as in the
course of employment. But this does not mean that a workman who comes to court
for relief must necessarily prove: it by direct evidence. Although the onus of
proving that the injury by accident arose both out of and in the course of
employment rests upon the applicant these essentials may be inferred when the
facts proved justify the inference. On the one hand the Commissioner must not
surmise, conjecture or guess; on the other hand, he may draw an inference from
the proved facts so long as it is a legitimate inference. It is of course
impossible to lay down any rule as to the degree of (1) [1917] A.C. 352. proof
which is sufficient to justify an inference being drawn, but' the evidence must
be such as would induce a reasonable man to draw it.
"In this case we cannot interfere with the finding of the County Court Judge.
The post of duty of the deceased was at the wheel and to steer a certain course
until ordered to change it, but nobody knows how the man disappeared, or how he
came to leave his post. It is conceivable that he may have fallen overboard in
such circumstances as to entitle his widow to claim compensation on the ground
that his death was due to an accident arising out of and in the course of the
employment; but the onus of proof is on the applicant. That onus is not
discharged by asserting that we must assume that the deceased was at his
allotted employment when he fell overboard, although the natural inference would
be that he was not, and that we should then draw the conclusion that the
accident arose out of and in the course of the employment".
In Simpson V.L.M. & S. Railway Co. Lord Tomlin reviewed all the previous
authorities and stated the principle as follows: " ...... from these passages to
which I have referred I think this rule may be deduced for application to that
class of case which may be called unexplained accident cases--namely, that where
the evidence establishes that in the course of his employment the workman
properly in a place to which some risk particular thereto attaches and an
accident occurs capable of explanation solely by reference to that risk, it is
legitimate, notwithstanding the absence of evidence as to the immediate
circumstances of the accident, to attribute the accident to that risk, and to
hold that the accident arose out of the employment; but the inference as to the
origin of the accident may be displaced by evidence tending to show that the
accident was due to some action of the workman outside the scope of the
employment.
Pushpabai Purshottam Udeshi & Ors vs Ranjit Ginning & Pressing Co. (P) ... on 25
March, 1977
This case dealt with the liability of an employer for the actions of its
employee.
Case Background
The case involved an employee of a ginning and pressing company who was driving
a truck owned by the company. The employee was involved in an accident while
driving the truck, causing injuries to the plaintiffs. The plaintiffs sued the
ginning and pressing company, seeking damages for the injuries caused by the
employee's negligent driving.
In this case, the plaintiff, Pushpabai Purshottam Udeshi, was the widow of a man
who had died in a motor accident involving a truck owned by the defendant,
Ranjit Ginning & Pressing Co. The truck was being driven by an employee of the
defendant at the time of the accident. The plaintiff filed a claim for
compensation, alleging that the accident was caused by the negligent driving of
the truck by the defendant's employee.
Legal Issues
Vicarious liability is a principle of law that holds an employer liable for the
actions of its employees when those actions are committed in the course of their
employment. The main legal issue in this case was whether the ginning and
pressing company could be held vicariously liable for the actions of its
employee.
Court Decision
The Tribunal found on the pleadings that Madhavji Bhai was the employee of the
company and during the course of employment by driving the motor car he
negligently caused the death of Purshottam.
The Bombay High Court held that the ginning and pressing company was vicariously
liable for the actions of its employee. The court reasoned that the employee was
acting in the course of his employment when the accident occurred, as he was
driving a truck owned by the company and was engaged in company business at the
time. The court also noted that the employee's actions were not a personal
venture but were undertaken for the benefit of the employer.
The Supreme Court also confirmed that the defendant was vicariously liable for
the accident. The court reasoned that the accident occurred while the truck was
being driven by the defendant's employee in the course of his employment. As
such, the defendant could be held liable for the negligent actions of its
employee under the principle of vicarious liability.
Significance
The decision highlighted the importance of holding employers accountable for the
actions of their employees when those actions are carried out in the course of
employment. The case also emphasized the broader societal interest in ensuring
that victims of negligence are compensated, even if the direct wrongdoer is
unable to fully compensate them. Overall, this case set a precedent for holding
employers liable for the actions of their employees in certain circumstances.
Sitaram Motilal Kalal v. Santanu- prasad Jaishankar Bhatt
The owner of a vehicle entrusted it to A for plying as a taxi. A drove the taxi,
collected the fares, met the expenditure and handed the balance with accounts to
the owner. B who used to clean the taxi was either employed by the owner or on
his behalf by A. Presumably because A wanted another to assist him in driving
the taxi he trained B to drive the vehicle and took B for obtaining a licensed
for driving. While taking the test B caused bodily injury to the respondent. At
the time of the accident, A was not present in the vehicle. On the question
whether the owner was liable,
HELD: (Per Hidayatullah and Bachawatt, JJ.) The owner was not liable.
There is a presumption that a vehicle is driven on the master's business and by
his authorised agent or servant but the presumption can be met. It was negatived
in this case.
The acts of A and B viewed separately or collectively were not within the scope
of their respective or even joint employment. The evidence did not disclose that
the owner had employed B to drive the taxi or given him permission to drive the
taxi or had asked him to take test for obtaining a driving licence; nor did it
disclose that that the owner had given any authority to A to employ strangers to
drive the taxi or to take the driving test. A was not present in the vehicle so
that he could be said to be in control on behalf of his employer when the
vehicle was driven.
For the master's liability to arise, the act must be a wrongful act authorised
by the master or a wrongful and unauthorised mode of doing some act authorised
by the master. The driver of a car taking the car on the master's business makes
him vicariously liable if he commits an accident. But it is equally well-settled
that if the servant, at the time of the accident, is not acting within the
course of his employment but is doing something for himself the master is not
liable
The extension of the doctrine of the scope of employment noticed in the judgment
refers to the decision of Ormrod and Another v. Crosville Motor Services Ltd.,
and Another. The case involved a bus driver employed by Crosville Motor Services
Ltd who was involved in a road traffic accident. The driver had been driving the
bus along a narrow road when he came across a stationary vehicle belonging to
the plaintiffs. The driver attempted to pass the stationary vehicle but
misjudged the distance and collided with it, causing damage.
The House of Lords held that Crosville Motor Services Ltd was vicariously liable
for the actions of its bus driver. The court found that the driver was acting in
the course of his employment at the time of the accident, as he was driving the
bus as part of his duties for the company. Therefore, the company could be held
liable for the damage caused by the driver's negligent driving.
Lord Denning stated: "It has often been supposed that the owner of a vehicle is
only liable for the negligence of the driver if that driver is his servant
acting in the course of his employment. This is not correct. The owner is also
liable if the driver is, with the owner's consent, driving the car on the
owner's business or for the owner's purposes."
Canadian Pacific Railway Company v. Lockhart. The Supreme Court of Canada
considered the issue of vicarious liability of an employer for the actions of
its employee.
In that case one S was employed as a carpenter by the railway company. In the
course of his employment, he was required to make repairs of various kinds to
employer's property. He made a key for use in a lock in the station at N far
away from his headquarters at W. He was paid per hour and the railway company
kept vehicles to be used by S available for him. S, however, had a car of his
own and without communicating his intention to anyone he used it on his way to
N.
An accident happened on the way owing to S's negligence. It was also in evidence
that the railway company had issued notice to its servants particularly to S
warning him against using their private cars unless they had got their cars
insured against third party risk. On the facts, the Privy Council held that the
means of transport used by the carpenter was clearly incidental to execution of
that for which he was employed. As what was prohibited was not acting as a
driver but using a non-insured car, the prohibition merely limited the way in
which the servant was to execute the work which he was employed to do and that
breach of the prohibition did not exclude the liability of the master to third
party. It supports the contention of the appellants that when the Manager was
driving the car for the purposes of the company it was in the course of his
employment.
The court held that the railway company was vicariously liable for the actions
of its employee. The court found that the employee's actions were closely
connected to his employment.
The question whether a master is liable for injuries caused to third persons by
his servant’s negligence depends upon whether under all the circumstances the
servant at the time of the negligence was acting in the course of his
employment, and, if he was so acting, liability attaches to the master even
though the servant was doing something forbidden by the master. Upon the
circumstances and facts in evidence, it must be held that S. at the time of the
negligence was acting in the course of his employment within the meaning and
application of the above rule.
Conway v. George Wimpey & Co. Ltd. The defendants, a firm of contractors, were
engaged in building work at an aerodrome, and they provided lorries to convey
their employees to the various places of their work on the site. In the cab of
each lorry was a notice indicating that the driver was under strict orders not
to carry passengers other than the employees of the defendants during the course
of, and in connection with, their employment, and that any other person
travelling on the vehicle did so at his own risk. Further the driver of the
lorry had received clear oral instructions prohibiting him from taking other
persons. The plaintiff who was employed as a labourer by another firm of
contractors at the aerodrome, while on his way to work, was permitted by the
driver to ride on one of the defendants' lorries for some distance across the
aerodrome and while dismounting the plaintiff was injured owing to driver's
negligence. The court held that on the facts of the case the taking of the
defendants' employees on the vehicle was not merely a wrongful, mode of
performing an act of the class which the driver in the present case was employed
to perform but was the performance of an act of a class which he was not
employed to perform at all.
Both lorry driver, and passenger were equally responsible for the accident.
Passenger was effectively a trespasser when he mounted the lorry, and it was
immaterial whether he knew he was one or not. Lorry driver performed a wrongful
act in allowing the passenger, who was not an employee of Wimpey, to ride the
lorry, and as this performance was not one which he was employed to perform at
all, the act was outside the scope of his employment. Wimpey could therefore not
be held liable for trespasser’s injury. Trespass will arise where a person
crosses the property of another on reliance of the permission of a person who
has no authority to give that permission.
The scope of the course of employment has been extended in Navarro v. Moregrand
Ltd. & Anr where the plaintiff who wanted to acquire the tenancy of a certain
flat, applied to the second defendant, a person with ostensible authority to
conduct the business of letting the particular fiat for the first defendant, the
landlord. The second defendant demanded from the plaintiff a payment of Pound
225 if he wanted the flat and the plaintiff paid the amount. The plaintiff
sought to recover the sum from the landlord under the Landlord and Tenant (Rent
Control) Act, 1949. The Court of Appeal held that the mere fact that the second
defendant was making an illegal request did not constitute notice to the
plaintiff that he was exceeding his authority and that, though the second
defendant was not acting within his actual or ostensible authority in asking for
the premium, as the landlord had entrusted him with the letting of the flat, and
as it was in the very course of conducting that business that he committed the
wrong complained of he was acting in the course of his employment. Lord Denning
took the view that though the second defendant was acting illegally in asking
for and receiving a premium and had no actual or ostensible authority to do an
illegal act, nevertheless, he was plainly acting in the course of his
employment, because his employers, the landlords, had entrusted him with the
full business of letting the property, and it was in the very course of
conducting that business that he did the wrong of which complaint is made. This
decision has extended the scope of acting in the course of employment to include
an illegal act of asking for and receiving a premium though the receiving of the
premium was not authorized.
Regional Director, E.S.I Corpn. ... vs Francis De Costa And Anr on 5 May, 1992.
The facts of the case were that an employee of the ESI Corporation was driving a
Corporation's vehicle when it met with an accident, resulting in the death of a
pedestrian. The legal question before the court was whether the ESI Corporation
could be held vicariously liable for the negligent act of its employee.
The Supreme Court held that under Section 85 of the ESI Act, the ESI
Corporation, being an employer, would be vicariously liable for the actions of
its employee committed during the course of employment. The court emphasized
that the liability of the employer is not limited to cases where the employee
was acting in the course of his employment with specific authorization from the
employer. Rather, the liability arises as long as the employee was engaged in
the general scope of his employment.
The court also clarified that the ESI Corporation could not escape liability by
arguing that the employee was using the vehicle for his personal purposes at the
time of the accident. As long as the employee was using the vehicle in
connection with his employment duties, the employer would be held vicariously
liable.
The paramount rule is that an employee travelling on the highway will be acting
in the course of his employment if, and only if, he is at the material time
going about his employer's business. One must not confuse the duty to turn up
for one's work with the concept of already being `on duty' while travelling to
it.
It is impossible to prove for every eventuality, but some prima facie
propositions may be stated with reasonable confidence.
(1) An employee travelling from his ordinary residence to his regular place of
work, whatever the means of transport and even if it is provided by the
employer, is not on duty and is not acting in the course of his employment, but,
if he is obliged by his contract of service to use the employer's transport, he
will normally, in the absence of an express condition to the contrary, be
regarded as acting in the course of his employment while doing so.
(2) Travelling in the employer's time between workplace (one of which may be the
regular workplace) or in the course of a peripatetic occupation, whether
accompanied by goods or tools or simply in order to reach a succession of
workplaces (as an inspector of gas meters might do), will be in the course of
the employment.
(3) Receipt of wages (though not receipt of a travelling allowance) will
indicate that the employee is travelling in the employer's time and for his
benefit and is acting in the course of him employment, and in such a case the
fact that the employee may have discretion as to the mode and time of travelling
will not take the journey out of the course of his employment.
(4) An employee travelling in the employer's time from his ordinary residence to
a workplace other than this regular workplace or in the course of a peripatetic
occupation or to the scene of an emergency (such as a fire, an accident or a
mechanical breakdown of plant) will be acting in the course of his employment.
(5) A deviation from or interruption of a journey undertaken in the course of
employment (unless the deviation or interruption is merely incidental to the
journey) will for the time being (which may include an overnight interruption)
take the employee out of the course of him employment.
(6) Return journeys are to be treated on the same footing as outward journeys.
34.16 Nexus with the wrongful act and the authorised act
Situations will often arise in which an employee is undertaking an authorised
act, but does so in an unauthorised manner. An example of this can be seen in
Century Insurance v NI Road Transport Board [1942] AC 509. A driver was employed
by the defendant company to deliver petrol. Part of this task involved
transferring the petrol from his lorry to a storage tank at the destination.
Whilst doing this, the employee lit a cigarette, threw the match to the ground,
and caused an explosion. The defendant was held vicariously liable for this
conduct. Although the employee’s conduct was clearly careless, he was
nonetheless in the process of carrying out an authorised act - delivering
petrol.
A distinction can be made between situations in which an employee acts within
their employment responsibilities (as in Century Insurance), and when they act
outside of them (albeit with the intention of aiding their employer). An example
of this distinction can be found in Beard v London Omnibus Co [1900] 2 QB 530. A
bus conductor (i.e. not a driver) was at the bus depot, and realised that a bus
was urgently needed for its next journey. He could not find the driver, and so
decided to drive the bus around to the front of the depot, so that it was ready
to go. In doing so, he injured a mechanic working in the depot. A claim was made
against the employer bus company. The courts rejected vicarious liability - the
conductor was acting outside of the course of his employment.
It will sometimes be simple to see when a tortious act is done in the course of
employment - most notably when an employee is directly following their
employer’s express orders and in doing so, commits a tort. A waste disposal
company orders an employee to dump toxic waste in a public waterway would have
committed a tort. Indeed, liability in such situations is so clear-cut that it
can be considered a matter of primary liability - the employer is directly
acting though their employees.
However, express authorisation is not an ever-present feature of many employment
situations (particularly where an employer knows they are doing wrong - they are
unlikely to put such orders in writing). The key thing to ascertain is then
whether an employee has been given implied authority to act due to the scope of
their employment.
If the unauthorised and wrongful act of the servant is not so connected with the
authorised act as to be a mode of doing it, but is an independent act, the
master is not responsible. For in such a case the servant is not acting in the
course of his employment, but has gone out¬side of it. He can no longer be said
to be doing, although in a wrong and unauthorised way, what he was authorised to
do; he is doing what he was not authorised to do at all.
Even express prohibition of the wrongful act is no de¬fence to the master, if
that act was merely a mode of doing what the servant was employed to do. Thus,
in Limpus v. London General Omnibus Co the defendant company was held liable for
an accident caused by the act of one of its drivers in drawing across the road
so as to obstruct a rival omnibus, and it was held to be no defence that the
company had issued specific instructions to its drivers not to race with or
obstruct other vehicles. The driver whose conduct was in question was engaged to
drive, and the act which did the mischief was a negligent mode of driving, for
which his em¬ployers must answer, irrespective of any authority or of any
prohibition.
Prohibition is relevant in considering what the scope of the servant's
employment was, and therefore, in determining whether the wrongful act was or
was not a mode of exercising that employment; but it is powerless to ex¬clude an
employer's liability for the wrongful acts of his servant within the sphere
permitted to him.
There are two distinct ways in which the wrongful act of a servant may fall
outside the course of his employment so as to exempt his employer from
liability. It may do so either because of its nature or because of the intention
with which it was done. In the first place the act may be in its own nature so
foreign to the nature of the servant's employ¬ment, that his master is not
responsible for it even though it is done by the servant on his master's behalf.
In the second place the act, although it is not in its own nature foreign to the
servant's employment, may fall outside the course of that employment because
done by him not on behalf of his master, but solely on his own account and in
pursuance of his own affairs, and therefore, not in his capacity as a servant.
Gravil v Carroll and another [2008] EWCA Civ 689, [2008] All ER (D) 234 (Jun)
Facts
In finding a rugby club vicariously liable for battery committed on the field of
play by one of its players, the court reiterated that the essential question was
whether the tort was so closely connected with the employment, that is, with
what was authorised or expected of the employee, that it would be fair and just
to hold the employer vicariously responsible.
Martin Seaward (instructed by Cramer Richards) for the claimant. Richard Stead
(instructed by CIP) for the second defendant.
Both the claimant and the first defendant were semi-professional rugby players
and both had other full-time employment. In October 2005 the claimant was
playing as a prop forward for Halifax Rugby Football Club and the first
defendant was playing in the second row for the second defendant, Redruth Rugby
Football Club.
Following a scrum, an altercation developed involving the claimant and two
Redruth players, one of whom backed away. At that point, the first defendant
threw a punch which struck the claimant and caused him to sustain an injury
which required reconstructive orbital surgery. It was clear from a DVD of the
match that, when the punch was thrown, although the whistle had gone and the
Redruth hooker had backed away, there remained something of a melee of the kind
which frequently occurred during rugby matches.
At the time of the incident, the first defendant had a contract of employment
with Redruth which expressly provided that he would be a part-time employee of
the club, employed to play rugby for it and that, while doing so, he was subject
to certain express obligations including the obligation to pay for any fines
incurred because of his actions. The claimant commenced proceedings in the
county court against the defendants, claiming damages for battery.
The judge found the first defendant liable, but held that the second defendant
was not vicariously liable for his act. The claimant’s appeal to the High Court
against the dismissal of his claim against the second defendant was dismissed.
He appealed to the Court of Appeal.
Sir Anthony Clarke Mr (giving the judgment of the court):
The long-established rule was that an employer was vicariously liable for the
torts of his employee committed in the course of the employment. However,
problems could arise and had arisen in the instant case, where the employer
contended that the employee’s tort was not committed in the course of the
employment but fell outside the scope of the employment. Drawing the line
between actions for which the employer was and was not vicariously liable could
be difficult but the principled approach which should be applied had been
considered in a number of authorities.
His lordship considered Lister and others v Hesley Hall Ltd [2001] UKHL 22,
[2001] 2 All ER 769; Mattis v Pollock (trading as Flamingos Nightclub) [2003]
EWCA Civ 887, [2004] 4 All ER 85; and Bazley v Curry (1999) 174 DLR (4th) 45.
The authorities showed that the essential question was whether the tort was so
closely connected with the employment, namely what was authorised or expected of
the employee, that it would be fair and just to hold the employer vicariously
responsible. In answering that question the court had to take account of all the
circumstances of the case, looking at the matter in the round. The authorities
showed that it would ordinarily be fair and just to hold the employer liable
where the wrongful conduct might fairly and properly be regarded as having been
done while acting in the ordinary course of the employee’s employment. That was
because an employer ought to be liable for a tort which could fairly be regarded
as a reasonably incidental risk to the type of business being carried on.
It was not appropriate to ask a broader question, namely whether or not in all
the circumstances of the case it would be fair and just to hold the employer
liable. The critical factor was the nature of the employment and the closeness
(or otherwise) of the connection between the employment and the tort. The
question what was fair and reasonable had to be answered in the context of the
closeness or otherwise of that connection. The answer to the question in each
case depended upon its particular facts.
In the instant case, there was a very close connection between the punch and the
first defendant’s employment. He was employed to play rugby for Redruth. When he
punched the claimant there was still a melee of the kind which frequently
occurred during rugby matches, despite the fact that the whistle had gone.
That close connection could be seen both from the facts just described and from
the terms of the contract.
Liability
The next question was whether the close relationship between the punch and the
employment was such that it would be fair and just to hold Redruth liable, and
the answer to that question was plainly yes. It was now recognised that it was
possible to be very seriously injured as a result of foul play during a rugby
match. It was incumbent on both players and clubs to take all reasonable steps
to eradicate, or at least minimise, the risk of foul play which might cause
injury.
Both the desirability of an adequate and just remedy for the claimant on the one
hand and deterrence of the club by bringing home that liability on the other, to
prevent or minimise the risk of foul play in the future, led to the conclusion
that it would be fair and just to hold that Redruth was vicariously liable on
the facts of the instant case.
The appeal would therefore be allowed. His lordship stressed that in doing so he
did not intend anything in the judgment to be relevant to the playing of rugby
or any other game otherwise than under a contract of employment
Century Insurance Co Ltd v Northern Ireland Road Transport Board, [1942] AC 509
The employee was the driver of a petrol tanker. When he was transferring
gasoline from the vehicle to an underground tank, he struck a match to light a
cigarette, and then he threw it on the floor while it was still alight. It
caught fire and caused damage.
Issue
Could the employer be vicariously held liable for the negligence of the driver?
Judgment
The House of Lords held that the negligent act of the employee was within the
course of his employment. He was still at his job filling up the garage tank
when having the cigarette.
It was emphasized that the employee was performing his duties when he connected
his petrol tanker to the underground tank, and that he would have been
performing his duties when he disconnected the nozzle once the tank had reached
its capacity. During this interim period, his duty (and, thus, what was in the
course of his employment) was to stand and supervise the procedure. In this
regard, Viscount Simon LC quoted Milton to highlight the point: ‘they also serve
who only stand and wait.’
Therefore, his employers were found to be liable for the explosion and fire that
resulted from the incident because the negligent act of the driver was merely an
unauthorized method of carrying out the task he was employed to do, which was to
deliver gasoline.
Now, this decision is particularly intriguing from the standpoint of employers
since it would seem to be an act of clear recklessness for an employee to throw
a lighted cigarette in an area where he is delivering gasoline. Despite the high
degree of negligence, in this case, the employer was still held vicariously
liable.
The legal point in this case
An employer will be vicariously liable for the negligent acts of his employees
if the employee was doing something authorized by the employer in an
unauthorized manner.
Rose v Plenty [1976] 1 WLR 141 is an English tort law case, on the issue of
where an employee is acting within the course of their employment. Vicarious
liability was tenuously found under John William Salmond's test for course of
employment, which states that an employer will be held liable for either a
wrongful act they have authorised, or a wrongful and unauthorised mode of an act
that was authorised.
Facts
Mr Plenty was a milkman under employment in Bristol by the Co-operative Retail
Services Ltd, since Easter of 1970. At the depot where he worked, there was a
prohibition on allowing children onto any vehicle, with evidence that the
employers and trade unions had attempted to stop such behaviour. There were
signs to this effect, which were large and visible to employees; one such
stated:
"Children and young persons must not in any circumstances be employed by you in
the performance of your duties.
However, children still persisted in going to the depot in the hopes of being
allowed onto milk floats. Soon after he was employed, Mr Plenty was approached
by Leslie Rose, at the time a 13-year-old boy, who asked if he could help the
employee on his rounds. This was agreed upon, and Rose engaged in collecting
money and delivering milk during Mr Plenty's rounds. He was paid a small wage
for this help on several occasions, before he was injured due to the negligent
driving of Mr Plenty, suffering a fractured leg. At first instance, Plenty was
adjudged 75% contributorily negligent, and recovery from the employer was barred
altogether, the judge stating that it was not in the scope of Mr Plenty's
employment to take on a child as a subordinate.
Judgment
On appeal to the Court of Appeal, this judgment was reversed, with Lord Denning
making the leading speech. It was established that, as in the case of Limpus v
London General Omnibus Company the employee was merely acting in an unauthorised
way, whilst still going about his duties of delivering milk:
In the present case it seems to me that the course of the milk roundsman's
employment was to distribute the milk, collect the money and to bring back the
bottles to the van. He got or allowed this young boy to do part of that business
which was the employers' business. It seems to me that although prohibited, it
was conduct which was within the course of the employment; and on this ground I
think the judge was in error. I agree it is a nice point in these cases on which
side of the line the case falls; but, as I understand the authorities, this case
falls within those in which the prohibition affects only the conduct within the
sphere of the employment and did not take the conduct outside the sphere
altogether. I would hold that the conduct of the roundsman was within the course
of his employment and the masters are liable accordingly, and I would allow the
appeal.
In Smith v. Stages,1989 AC 928 where two employees who normally work in
Staffordshire had been sent to South Wales to undertake emergency work drove
back immediately on completion of the job without any sleep, which resulted in
an accident and the plaintiff was injured. The court held the employer was
vicariously liable for Stages negligent driving as the men were still acting in
the scope of employment.
Mattis v Pollock [2003] 1 WLR 2158 This case established an employer's vicarious
liability for assault, even where it may be intentional or pre-meditated.
Previously, judges had been unwilling to impose liability where assaults were
motivated by revenge or vengeance; it was established however, that following
the decision of Lister v Hesley Hall Ltd, that where an assault is closely
linked to the duties of an employee, the employer should be held vicariously
liable.
Facts
Mr Cranston, an employee of Flamingos night club, in London, was employed as a
bouncer to keep order at the club's doors, and to break up scuffles and fights.
On 18 July 1998, an incident occurred involving a customer, Mr Fitzgerald, and
Mr Cranston, who threw a friend of his across a room. It was submitted that Mr
Pollock had given Mr Cranston instructions to "impress upon Mr Fitzgerald that
Mr Cranston was prepared to use physical force to ensure compliance with any
instructions that he might give to Mr Fitzgerald or any of his companions".
Subsequently, on 24 July, Mr Mattis was attending the club with a friend, Mr
Cook. Mr Cranston was instructed that Cook should be barred from the club, and
was ejected. A week later, Mr Mattis attended the club with other friends, at
around 11:15pm. Mr Cook turned up with Mr Fitzgerald, at around 1am, and upon
seeing them, Mr Cranston violently assaulted Mr Cook and one of his friends.
Upon witnessing this, Mr Mattis attempted to pull Cranston from Cook, whereupon
several other customers surrounded Cranston, who was forced to flee. Upon
arriving back at the club, he grabbed Mr Mattis, and stabbed him in the back. As
a result, Mr Mattis was rendered paraplegic.
Judgment
The trial judge found the club's owner, Mr Pollock, was not liable for the
stabbing of Mr Mattis. This event was not part of one continuous string of
events; as Mr Cranston had fled home, leaving his duties, he was no longer
within the course of his employment. wrongful act of inflicting injury upon the
claimant fell within the broad scope of his employment; There was a sufficiently
close connection between his action and what the defendant authorised or
expected of him in the performance of his employment. The defendants owed a
personal duty of care to ensure the exercise of proper control over its
employees.
Close connection test:
Lister v Hesley Hall Ltd [2001] UKHL 22 is a tort law case, creating a new
precedent for finding where an employer is vicariously liable for the torts of
their employees. Prior to this decision, it had been found that sexual abuse by
employees of others could not be seen as in the course of their employment,
precluding recovery from the employer. The majority of the House of Lords
however, overruled the Court of Appeal, and these earlier decisions,
establishing that the "relative closeness" connecting the tort and the nature of
an individual's employment established liability.
Facts
A boarding house (Axeholme House) for Wilsic Hall School, in Doncaster was
opened in 1979; the principal students to live there having behavioural and
emotional difficulties. The claimants in the instant case had resided there
between the years 1979 to 1982, being aged 12 to 15 during this time, under the
care of a warden, who was in charge of maintaining discipline and the running of
the house. The warden lived at the house also, with his disabled wife, and
together they were the only two members of staff in the house. His duties were
ensuring order, in making sure the children went to bed, went to school, engaged
in evening activities, and supervising other staff. It had been alleged by some
of the boys that the warden had sexually abused them, including inappropriate
advances and taking trips alone with them. A criminal investigation took place
some ten years later, resulting in the warden being sentenced to seven years
imprisonment; following this, the victims brought an action for personal injury
against the employers, alleging they were vicariously liable.
Judgment
T v North Yorkshire CC, decided just two years earlier by the Court of Appeal,
had found that a headmaster's sexual abuse of a child on a field trip was not
within the scope of his employment, a previous criterion by which an employer
could be found vicariously liable. This was the view taken prior to the House of
Lords appeal, but was reversed, with Lord Steyn making the leading judgment.
Here, he cited a recent Canadian case, which had imposed liability for
intentional torts, creating a new test of 'close connection', rather than using
previous formulations
Gravil v Carroll and Another: CA 18 Jun 2008
The claimant was injured by an unlawful punch thrown by the first defendant when
they played rugby. He sought damages also against the defendant’s club, and now
appealed from a finding that they were not vicariously liable. The defendant
player’s contract required him not to engage in such behaviour.
Held: The appeal was allowed. The judge had correctly stated the question as
being whether the tort was so closely connected with the employment that it
would be fair and just to hold the employers vicariously liable: ‘it is not
appropriate to ask a broader question, namely whether in all the circumstances
of the case it would be fair and just to hold the club liable. The critical
factor is the nature of the employment and the closeness (or otherwise) of the
connection between the employment and the tort. The question what is fair and
reasonable must be answered in the context of the closeness or otherwise of that
connection. The answer to the question in each case depends upon its particular
facts, ‘However, in this case here was just that close connection between what
was done and the defendant’s employment.’
Weddall v Barchester Healthcare Ltd: CA 24 Jan 2012
Parties appealed against judgments dismissing their claims of vicarious
liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts
In one case, one employee made a call out of hours to another employee (Mr
Marsh) requesting him to do a voluntary shift to replace a sick employee. Mr
Marsh, who had a history of antagonism with the first employee (Mr Weddall), was
at home in an inebriated state having had a domestic row. He declined to come;
instead he bicycled to the care home and launched an unprovoked attack on Mr
Weddall. The employer was held not to be vicariously liable.
The two cases of Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox
Designs Ltd were heard together by the Court of Appeal recently. Both considered
whether employers were vicariously liable for violence committed by their
employees in response to lawful requests and instructions. Gemma Hill looks more
closely at the combined case and explains how the different outcomes of the two
cases have highlighted the scope of vicarious liability for employers.
The legal position
An employer is vicariously liable for the wrongful acts of its employees (known
as ‘torts’) where they occur in the “course of employment”. Case law has
indicated that this term should be interpreted widely and the key question is:
Whether the [employee's] conduct is so closely connected with his employment
that it would be fair and just to hold the employers vicariously liable.
The cases and decisions
Weddall
In this case an employee was at home when he received a telephone call from his
manager asking him to attend work due to a staff shortage. The employee in
question was drunk and felt that his manager was mocking him for his drunken
state and cycled to the workplace following the call and attacked the manager.
The attack happened 20 minutes after the call.
Both the County Court and Court of Appeal came to the same decision. Although
the courts accepted that the incident would not have happened but for the
employment it held the employer not to be vicariously liable in this instance.
Albeit the attack happened at the workplace, he was off duty and the call was
simply a pretext for the employee’s violence, which was unconnected with his
work as a health assistant. It was viewed as being an “independent venture” of
the employee who was "acting personally for his own reasons".
Wallbank
In the second case an employee was at work when he was given a reasonable
instruction by his manager to correct an incorrect procedure that he was
following. Immediately following this request, the employee violently attacked
the manager. It was known that it could sometimes be difficult to communicate
instructions to this particular employee.
The county court found that the employee had not been acting in the course of
his employment when he assaulted his manager and therefore there was not a
sufficiently close connection between the employment and the assault (i.e. the
tort) to render the employer vicariously liable.
On appeal, the Court of Appeal reversed this decision and held that the employer
was vicariously liable- although “not without hesitation”. The decision was as
a result of the following findings:
• that friction was an inherent possibility in the factory workplace, where
instant instructions and quick reactions are required;
• that the attack was “a spontaneous and almost instantaneous, if irrational,
response to an instruction”; and
• it had a close relationship with the employment in time and space, although
the use of force was not inherent in the nature of the employment.
They held that a reaction to instructions, normally by way of carrying them out,
is a part of employment. Therefore, it was held that the tort flowed directly
from the fact that the employee was given instructions by a senior colleague in
the course of his employment.
Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214
An employer will usually be held liable for the acts of an employee done ‘in the
course of employment’. The legal test is whether the acts were ‘so closely
connected with the employment that it would be fair and just to hold the
employers vicariously liable.’
Mr Major was the Managing Director at Northampton Recruitment Ltd (the Company).
Mr Bellman was a Sales Manager at the Company.
Following the Company’s 2011 Christmas party, a number of guests, including Mr
Major and Mr Bellman, went on to a hotel where some were staying. This was for
an ‘impromptu drink’ and was not a planned extension of the party, although the
Company paid for the guests’ taxis to the hotel and it was expected that the
Company would pay for some of the drinks at the hotel.
The conversation at the hotel turned to work-related matters and became heated,
leading to Mr Major losing his temper and lecturing the employees present on how
he owned the Company and made the decisions. When Mr Bellman challenged him, Mr
Major swore at and assaulted Mr Bellman, with the result that Mr Bellman
sustained severe brain damage.
Mr Bellman brought a claim against the Company alleging that it was vicariously
liable for Mr Major’s actions.
The High Court decided that the Company was not liable for Mr Major’s actions.
On the basis that the drinking session at the hotel was separate from the
Christmas party itself and at a separate location, the Court found that the
incident had occurred in the context of ‘entirely voluntary and personal
choices’ by those present to engage in a heavy drinking session. As such, there
was insufficient connection between Mr Major’s job as Managing Director and the
assault.
Mr Bellman appealed the High Court decision.
Court of Appeal Judgment
The Court of Appeal upheld the appeal.
It found that when considering whether something is ‘in the course of
employment’ the employment in question must be looked at broadly and it is wrong
to focus too narrowly on what the employee is expressly authorised to do in
their job. Whilst the drinking session at the hotel, where the assault took
place, was not a seamless extension of the Company’s Christmas party, Mr Major
had decided to wear his ‘metaphorical director’s hat’ during the drinking
session by lecturing his subordinates on his rights as Managing Director.
34.17 Servants unauthorised use of his employer's property. A master is not
responsible for the negligence of his servant in the unauthorised use of his
master's property if the servant used the same for his own purposes. This rule
has been applied on several occasions when harm has been done by the negligent
driving of servants, while using their master's horses and conveyances for their
own ends. These cases have established the rule that a master is not responsible
merely because he entrusted to the care of his servant the instrument which did
the mis¬chief. The test is not whether the servant was entrusted with it, but
whether he was using it in his master's business or in his own. Accordingly, in
Mitchell v. Crassweller the defendant's servant was engaged to drive a cart, and
on returning to his employees’ premises at the end of his day's work it became
his duty to take the horse and cart to the stables. Instead of doing so, he
drove away on a new journey for his own purposes exclusively; and while
returning he injured the plaintiff by negligent driving. It was held that the
master was not liable.
34.18 Servant executing master’s work negligently:
It is to be observed, however, that if the servant is really engaged on his
master's business, the fact that he is at the same time engaged on his own is no
defence to the master’s business even though it was the competing claims of the
servant's business which caused him to perform his master's negligently. The
master is exempt only when the servant was exclusively on his own business. If
while driving his master's cart in the course of his employment, he lights his
pipe, which caused a collusion by not looking where he is going, his master will
be liable; and it will be no defence to him to allege that the servant in
lighting his pipe was engaged on his own business and not on his master's; for
he was in truth engaged on both. So, where a carman deviates for his own
purposes from the direct line which he ought to have followed in the execution
of his master's business, and an accident happens while this deviation still
continues, it is a question of degree whether the deviation is so great that the
servant can no longer be said to be driving on his master's business, but to be
on a journey of his own, or whether on the other hand the deviation is so
slight, that it may be said to be part of the journey on which his master sent
him.
Storey v Ashton [1869] LR 4 QB 476
Facts
The defendant in this case, was a wine merchant who, in the course of
employment, sent his clerk and his car man off with a horse and cart to make a
delivery of wine and collect and return the empty bottles. During their journey
from doing this, rather than completing this task set by the employer, the car
man was told by the clerk to drive in the opposite direction to visit his
brother-in-law as it was past 3.00pm on a Saturday and outside of business
hours. Following this change of direction, the car man ran over the plaintiff.
Issue
The issue in this case was whether the defendant could be said to be at fault
for the actions of his employees at a time that they were not directly acting on
behalf of him, but still using his equipment. It was an important to draw a line
between negligence arising out of a master’s instruction and when the employee
could be said to be operating on the basis of his own act.
Held
The defendant was not liable in this instance as the court considered that the
car man was operating a new and independent journey from the one, he was
instructed to do. The court surmised that as it was after business hours, the
incident that harmed the plaintiff could be considered to have taken place
outside the course of his employment. With this being said, the court still
emphasised the strict nature of an employee acting under an employer’s
instruction.
So, if the servant, when going on his master's business, took a somewhat longer
road, that owing to this deviation he would cease to be in the employment of the
master, so as to divest the latter of all liability; in such cases it is a
question of degree, as to how far the deviation could be considered a separate
journey.
34.19 Servant's negligence contemporaneous with his employment A master is not
responsible for the negligence or other wrongful act of his servants simply
because it is committed at a time when the servant is engaged on his master's
business. It must be committed in the course of that business, so as to form a
part of it, and not merely coincident in time with it. In Williams v. Jones the
defendant employed his servant, a carpenter, to make a signboard in a shed
belonging to the plaintiff who had allowed the use of it for this purpose. The
carpenter lit his pipe while so engaged, and set the shed on. fire by
negligently throwing down the light used by him. It was held by the Court of
Exchequer Chamber that the defendant was not liable, It was not necessary that
he should smoke in order to make the signboard, nor was the act of lighting the
pipe in any way whatever for the benefit of his master or in furtherance of the
object of his employ¬ment. It is said he was negligent whilst using the shed,
and that in a sense is true. In ¬order to make the master liable, the servant
must not only have been negligent in using the shed, but in using it for the
purposes of his master and in the course of his employment. There was no
negligence in making the signboard (the master's ¬business); there was
negligence only in smoking the pipe (the servant's business). The fact that the
two things were coincident in time did not make them parts of a single
trans-action done on behalf of the master. It is true that the servant was
negligent in his management and care of the shed, but he was not employed by his
master to look after the shed; his master's business was the making of a
signboard, not the care of the plaintiffs shed.
If, on the other hand, the fire had arisen through the act of the servant in,
lighting a fire to boil his glue-pot, the master would have been responsible.
So, to use a former illustration, if the servant had been a carter instead of a
carpenter, and had lit his pipe while driving his master's horses, and whilst so
doing he had run over the plaintiff through inattention, his master would have
been responsible; for this would have been a negligent way of driving horses,
and not merely a negligent way of lighting pipes. But if, after lighting his
pipe under the same circumstances, he had negligently thrown away the match,
which burned the plaintiff's crops, his master would have been free from
responsibility. This would be a negligent way of smoking tobacco, but an
unexceptionable way of driving horses.
34.20 Permission distinguished from employment. On the Acts which same principle
a master is not responsible for the negligence of his servant, while engaged in
doing something which he is not permitted to do for his own purposes, but not
employed to do for his master. I am liable only for what I employ my servant to
do for me, not for what I allow him to do for him¬self. If I permit my servant
for his own ends to drive my horse, I am not liable for his negligence in doing
so. In this respect he is not my servant, but a mere bailee to whom I have lent
my property; and there is no more reason why I should answer for his conduct in
such a matter, than why I should answer for that of my friends or my children,
to whom without personal negligence on my own part I lend or entrust property
that may be made the instrument of mischief. Thus, in respect of Jones v.
Williams already referred to, it is submitted that even if the carpenter had
been expressly per¬mitted to smoke while doing his work, the master must have
been equally free from liability, unless the act of granting such a permission
were in itself an act of personal negligence on the master's part.
34.21 Time of Commencement of work:
In Larson's Workmen's compensation Law, Vol.1 in s.15.11 it was stated that the
course of employment is not confined to the actual manipulation of the tools of
the work, nor to the exact hours of work...In s.15.12 it was stated that one
influential writer says that there is no reason is principle why states should
not protect employees for a reasonable distance before reaching or after leaving
the employer's premises. Some courts have extended the premises idea to areas
which are not owned or even controlled by the employer, but which are so closely
associated with it that they are in effect part of the premises. Such a test has
been helpful in a number of cases, but again it cannot qualify as a statement of
legal principle.....In s.15.15 it was stated that a workable explanation of the
exception to the premises rule, it is not nearness, or reasonable distance, or
even the identifying of surrounding areas with the premises; it is simply that
when a court has satisfied itself that there is a distinct arising out of or
casual connection between the conditions under which claimant must approach and
leave the premises and the occurrence of the injury, it may hold that the course
of employment extends as far as those conditions extend. In s.15.21 it was
stated that the difficulty would dissolve instantly if the courts confronted
with this question would simply face squarely the question whether the extension
of course of employment to off-premises injuries is based on any principle to
which the public private distinction is relevant. Plainly it is not....For that
matter, every travelling salesman uses the highway in his right as a member of
the public and not by any right conferred by his contract of employment, yet no
one questions that he is in the course of employment on the highway....If the
only means of access to the place is over a piece of public road which includes
a dangerous railroad crossing, the technical status of the road as public or
private is surely immaterial. In s.15.31 the case Freire v. Matson Navigation
Co., 19 Cal. 2d 8, 118 P.2d 809 (1941) has been referred to, wherein the
claimant, while still on a public thoroughfare was injured due to a traffic
congestion caused by the arrival of all sorts of trucks, cars, and pedestrians,
that workman came there on business of the claimant's employer. The injury was
held to be in the course of employment on the theory that the zone of employment
danger has been extended beyond the gate by the employment created dangers in
the street. It was held that it is rather a matter of reaching out and covering
a particular hazard which has a sufficiently close work connection to impel the
courts to find temporary room for it within the course of employment concept.
De hors the Human Right and constitutional goal, the march of Jurisprudence
emphasises that the law did not remain static but kept pace with the changing
social demands to secure socio-economic justice to workman.
It would thus be held that the employment of a workman does not commence until
he has reached the place of employment and does not continue after he has left
the place of work, the journey to and from the place of employment being
excluded. An employee travelling from his residence to his place of work
ordinarily is not on duty and is not acting in the course of his employment. But
travelling as a part of duty between place of work and residence is in the
course of his employment when the employee is entitled to payment of travelling
allowances/wages is part of duty. The employee then is travelling on the
employer's time. He will be acting in the course of his employment. The doctrine
of coming in and go from workplace is subject to reasonable extension. It is
common knowledge that the home is the employee's base from which it is his duty
to start for work. When an employee was travelling by direct route from his/her
home to the place of work but for that he/she has no occasion to traverse the
way through private/public road way is the normal or agreed or accustomed route
to reach the workplace, he/she must be treated to be travelling in the course of
his/her employment as incidental to join the duty or leaving the work place. The
accident is in the course of his employment because he/she is then at the scene
of the accident by reason only of his/her employment and he/she has reached the
sphere of employment. The test is whether the employee has exposed to a
particular risk by reason of his/her employment or whether he/she took the same
risk as is incurred by any other public using the public way otherwise then
his/her employment. The accident occurred while using transport provided by the
employer is during the course of employment. The motive to use public or private
transport or route to reach the place of accident is not relevant. The employee
may use the place, public road or transport services as usual course of means of
attending to or going from the place of work, office or factory. The proximity
of time and place of accident to the time of reporting to the duty or after duty
time are relevant facts to be reckoned. No hard and fast rule can be laid. When
a workman walks/rides the bicycle etc. along the public road/street to go to
his/her work, his/her right to walk does not spring, undoubtedly, from
employment, and he/she also may exercise it as a member of the public.
Nevertheless, the workman too uses the public/permitted private way as
access/means to attend to duty. The question whether he/she had encountered the
danger or the accident exercising his/her right and to be at the place of
incident as a member of the public or as his/her integral course of employment
must always be born in mind and is a question of fact to be considered in each
case. While as a member of the public he/she may have a right to walk or ride a
cycle, drive a car etc. but while walking or crossing the road/driving to reach
the place of work or duty he/she encounters the danger or the accident, which
he/she would not have encountered but for that employment, then it must be
incidental to his/her employment. The motive which induces the employee to do a
thing is not material. His/her motive to go by a particular route is also
immaterial, whether it was to save time or to save himself/herself from trouble.
Whether the place at which the injury/death occurred was on the only route or at
least the normal/accustomed route which the employee must traverse to reach the
place of work and became the hazard of the employment is also relevant fact. It
is impossible to exactly define in positive terms the degree of casual
connection. The fact that the risk is common to all mankind does not prove that
the accident has not arisen out of employment. It must be shown that the
employee was exposed to the risk by reason of employment, though the risk may be
common to all. The residents may be exposed to the risk as residents but the
employee is exposed to the risk because he/she is required by his/her employment
so to expose himself/herself. On the facts in a given case, if the court would
come to a positive conclusion, the incident/injury/death arose out of and during
the course of employment.
"As a rule, the employment of a workman does not commence until he has reached
the place of employment and does not continue when he has left the place of
employment, the journey to and from the place of employment being excluded. It
is now well-settled, however, that this is subject to the theory of notional
extension of the employer's premises so as to include an area which the workman
passes and repasses in going to and in leaving the actual place of work. There
may be some reasonable extension in both time and place and a workman may be
regarded as in the course of his employment even though he had not reached or
had left his employer's premises. The facts and circumstances of each case will
have to be examined very carefully in order to determine whether the accident
arose out of and in the course of the employment of a workman, keeping in view
at all times this theory of notional extension." After noting the fact that the
ferry was not provided by the employer, the learned Judge held as follows: "It
is well settled that when a workman is on a public road or a public place or on
a public transport he is there as any other member of the public and is not
there in the course of his employment unless the very nature of his employment
makes in necessary for him to be there. A workman is not in the course of his
employment from the moment he leaves his homes and is on his way to his work. He
certainly is in the course of his employment if he reaches the place of work or
a point or an area which comes within the theory of notional extension, outside
of which the employer is not liable to pay compensation for any accident
happening to him. In the present case, even if it be assumed that the theory of
notional extension extends upto point D, the theory cannot be extended beyond
it. The moment a workman left point B in a boat or left point A but had not yet
reached point B, he could not be said to be in the course of his employment and
any accident happening to him on the journey between these two points could not
be said to have arisen out of and in the course of his employment. Both the
Commissioner for Workmen's Compensation and the High Court were in error in
supposing that the deceased workmen in this case were still in the course of
their employment when they were crossing the creek between points A and B. The
accident which took place when the boat was almost at point A resulting in the
death of so many workmen was unfortunate, but for that accident the appellant
cannot be made liable."
34.22 Master’s express or implied authority:
The relation of master and servant may grow out of a servant's invitation or
permission to another to assist him in the work with which he has been
entrusted, if the servant be clothed with express or implied authority
therefor.
Authority of a servant to employ an assistant, if not express, may be implied
from the nature of the work to be performed or when an emergency arises
requiring assistance or from the general course of conduct of the business of
the master by the servant for so long a time that knowledge or consent on the
part of the master may be inferred. Where, however, a servant employs another to
perform or assist him in the performance of his work without express or implied
authority from or a subsequent ratification by his employer, the relation of
master and servant between the employer and the assistant does not exist; but
the employer is not, however, necessarily absolved from liability. While an
employee cannot create the relation of master and servant between his employer
and an assistant whom without authority he substitutes for himself in the
employer's business, still if the negligence of the employee, in so engaging an
assistant who is incompetent or in failing to supervise such an assistant be he
competent or incompetent, is a proximate cause of the damage complained of, the
employer is liable although the assistant's negligence in the presence of the
employee, and in combination with his negligence, contributed proximately to the
accident. The burden of proof is on the plaintiff to sustain his allegations of
negligence by prima facie proof.
34.23 Abetment by master
In common parlance, the word ‘abet’ signifies help, co-activity and support and
incorporates within its ambit, illegitimate reason to commit the crime. So as to
bring an individual abetting the doing of a thing under any of the conditions
specified under Section 107 of the Indian Penal Code, it isn’t just important to
demonstrate that the individual who has abetted has participated in the means of
the transactions yet additionally has been associated with those means of the
transaction which are criminal. The term ‘abetment’ in criminal law indicates
that there is a distinction between the person abetting the commission of an
offence (or abettor) and the actual perpetrator of the offence or the principal
offence or the principal offender.
Section 107 I.P.C defines abetment to mean that a person abets the doing of a
thing if he firstly, instigates any person to do that thing; or secondly,
engages with one or more other person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or thirdly, intentionally
aids, by any act or illegal omission, the doing of that thing.
34.24 Domestic violence victims can potentially use a number of these torts to
sue perpetrators, although tort law does not by any means cover the full scope
of domestic violence.
For domestic-violence victims, the range of tort-law options include claims for
assault; battery; false imprisonment; intentional and/or reckless infliction of
emotional distress; negligent infliction of emotional distress; intentional
interference with child custody, visitation, and/or parent-child relationships;
third-party negligence; tortious infliction of venereal disease; and wrongful
death. The majority of domestic-violence torts involve claims of assault and
battery and the infliction of emotional distress. These topics are discussed in
separate sections of the article, along with battered woman's syndrome. These
sections are followed by an overview of legal and societal barriers to
domestic-violence lawsuits. The primary legal defences in domestic-violence tort
cases are interspousal immunity, res judicata, and the statute of limitations.
Although interspousal immunity has been repealed by all but two States, the
spirit of this doctrine persists when courts require a higher standard of
"outrageousness" for spousal abuse than for nonspousal violence. Res judicata
and collateral estoppel prevent the relitigation of certain claims or issues
that were litigated in a previous matter. This doctrine may be invoked when
domestic-violence victims bring a tort action for abuse apart from a previous
divorce action. The best solution is to allow permissive joinder in these
situations. The most significant bar to recovery in domestic-violence cases is
the statute of limitations on assault and battery cases. The New Jersey case of
Giovine v. Giovine held that the statute of limitations does not begin to run
until the tortious conduct in its entirety ceases. Societal obstacles to
bringing domestic-violence tort claims stem from societal conditions that impair
women financially and psychologically under abusive conditions, such that they
have neither the will nor the financial resources to pursue litigation.
34.25 Principal’s Criminal Liability
As a general proposition, a principal will not be held liable for an agent’s
unauthorized criminal acts if the crimes are those requiring specific intent.
Thus, a department store proprietor who tells his chief buyer to get the “best
deal possible” on next fall’s fashions is not liable if the buyer steals clothes
from the manufacturer. A principal will, however, be liable if the principal
directed, approved, or participated in the crime. Cases here involve, for
example, a corporate principal’s liability for agents’ activity in antitrust
violations-price-fixing is one such violation.
There is a narrow exception to the broad policy of immunity. Courts have ruled
that under certain regulatory statutes and regulations, an agent’s criminality
may be imputed to the principal, just as civil liability is imputed under
Dramshop Acts. These include pure food and drug acts, speeding ordinances,
building regulations, child labor rules, and minimum wage and maximum hour
legislation. Misdemeanor criminal liability may be imposed upon corporations and
individual employees for the sale or shipment of adulterated food in interstate
commerce, notwithstanding the fact that the defendant may have had no actual
knowledge that the food was adulterated at the time the sale or shipment was
made.
The principal will be liable for the employee’s torts in two circumstances:
first, if the principal was directly responsible, as in hiring a person the
principal knew or should have known was incompetent or dangerous; second, if the
employee committed the tort in the scope of business for the principal. This is
the master-servant doctrine or respondeat superior. It imposes vicarious
liability on the employer: the master (employer) will be liable if the employee
was in the zone of activity creating a risk for the employer “zone of risk
test”, that is- generally- if the employee was where he was supposed to be, when
he was supposed to be there, and the incident arose out of the employee’s
interest (however, perverted) in promoting the employer’s business.
Special cases of vicarious liability arise in several circumstances. For
example, the owner of an automobile may be liable for torts committed by one who
borrows it, or if it is-even if indirectly-used for family purposes. Parents
are, by statute in many states, liable for their children’s torts. Similarly, by
statute, the sellers and employers of sellers of alcohol or adulterated or
short-weight foodstuffs may be liable. The employer of one who commits a crime
is not usually liable unless the employer put the employee up to the crime or
knew that a crime was being committed. But some prophylactic statutes impose
liability on the employer for the employee’s crime- even if the employee had no
intention to commit it- as a means to force the employer to prevent such
actions.
34.26 Criminal act of employee
The employer may be vicariously liable for any criminal act from his employee.
The criminal act may be taken during the course of the employment so that the
employer will be charged at civil law for any losses caused by the employee. In
the situation where an employee causes injury to another person or their
property, it is important to identify whether the employee was acting within his
course of employment or during his free time. The employer is highly responsible
for the damages if the employee did the mistake while on their job duty. In
establishing vicarious liability, the crucial question is whether the act was
done by the employee ‘in the course of his employment’. The courts have devised
certain principles which assist in determining this. What constitutes, in legal
terms, a ‘course of employment’? It used to be considered that the distinction
lay between an employee’s wrongful mode of doing authorised work, and his
performance of some unauthorised act. The employer is liable only for the
former; not the latter (Goh Choon Seng v Lee Kim Soo).
In Goh Choon Seng v. Lee Kim Soo [1925] A.C.550, the Privy Council held that an
employer is responsible for damage caused by the negligent act of his servant in
the course of performing the duties of his office even if the act incidentally
involves a trespass which the employer has not authorised. In the course of the
Judgement of the Board, Lord Phillimore suggested a classification of the
possible cases into three categories, in a passage which reads as follows [at p.
554]:-
“As regards all the cases which were brought to their Lordships’ notice in the
course of the argument this observation may be made. They fall under one of
three heads:
(1) The servant was using his master’s time or his master’s place or his
master’s horses, vehicles, machinery or tools for his own purposes: then the
master is not responsible. Cases which fall under this head are easy to discover
upon analysis. There is more difficulty in separating cases under heads (2) and
(3). Under head (2) are to be ranged the cases where the servant is employed
only to do a particular work or a particular class of work, and he does
something out of the scope of his employment. Again, the master is not
responsible for any mischief which he may do to a third party. Under head (3)
come cases where the servant is doing some work which he is appointed to do, but
does it in a way which his master has not authorized and would not have
authorized, had he known of it. In these cases the master is, nevertheless,
responsible.”
In Twine v. Beans Express Limited (1946) 175 L.T. 131, the widow of a passenger
who was given a lift by the respondents’ driver on a van belonging to the
respondents but contrary to the express prohibitions of the respondents to the
effect that he should not carry passengers (with the exception of limited class
of persons) claimed damages from the respondents for the negligence of the
driver resulting in the death of her husband. The Court of Appeal held that the
deceased when on the van was, as against the respondents, a trespasser in that,
in carrying the deceased when he was expressly forbidden to carry passengers,
the driver was doing an act outside the scope of his employment.
That being so, if the question is asked: Was the driver, in giving a lift to the
deceased man, acting within the scope of his employment? the answer is clearly
‘No’. He was doing something that he had no right whatsoever to do, and qua the
deceased man he was as much on a frolic of his own as if he had been driving
somewhere on some amusement of his own quite unauthorised by his employers”.
Conway v. George Wimpey Company Limited (supra), at page 276, Lord Asquith
observed as follows:-
“To put it differently, I should hold that taking men not employed by the
defendants on to the vehicle was not merely a wrongful mode of performing the
act of the class this driver was employed to perform, but was the performance of
an act of a class which he was not employed to perform at all. In other words,
the act was outside the scope of his employment for the same reason that the act
complained of in Twine’s case was held to be outside the scope of that driver’s
employment.”
in Hilton v. Thomas Burton (Rhodes) Limited and another [1961] 1 A.E.R. 74,
where there was no express prohibition with regard to the use of the employers’
van but it was established that at the time of the accident the plaintiff’s
husband was on the van, on a journey which was not authorized, expressly or
impliedly, by the employers of the driver, it was held that the employers were
not liable. In my view on the evidence before the learned trial Judge the
appellants were entitled to a finding that the driver at the material time was
not acting within the scope of his employment and that they were therefore not
liable in damages to the plaintiff respondent for his negligence.
Century Insurance Co Ltd v Northern Ireland Road Transport Board, in which a
petrol lorry driver tried to light a cigarette with a lit match while in a
petrol station. After throwing the lit match onto the floor, there was an
explosion and a fire. The employers were held liable, as the driver did the act
in the course of carrying out his job of delivering the petrol. It was, however,
an unauthorised way of doing what he was employed to do, but the employers were
still vicariously liable for the damage caused.
Another case in which this was applied was Harrison v Michelin Tyre Co Ltd, in
which an employee of the defendant injured the claimant by deliberately steering
his truck off the road. Despite this deliberate ‘horseplay’ it was held that
this did not take the servant outside the course of his employment. An employer
will only be liable for the torts of their employees if they are committed
during the course of employment rather than, as the courts put it, ‘on a frolic
of his own’ (Storey v Ashton). This is another area of vicarious liability that
the courts have found particularly difficult to agree on. The traditional test
for determining this is the Salmond test which states that a tort will be
committed in the course of employment if it is either (a) a wrongful act
authorised by the master, or (b) a wrongful and unauthorised mode of doing some
act authorised by the master.
34.27 Closeness of work towards tort
The crucial issue here is whether the connection between the work and the tort
is sufficiently close or whether the job has merely provided the opportunity to
commit the tort. In Lister, the warden’s job was to take care of the boys and
supervise them, so because the abuses occurred when he was in charge of them, it
was held to be a close connection. Lord Hobhouse gives an example that if a
groundman employed by the school had done as the warden had, he would have been
outside the course of employment because he was employed to look after the
grounds, not to have anything to do with the boys.
In the case of Leesh River Tea Co v British India Steam Navigation Co, a person
was employed to unload the tea from the ship. That person stole a copper cover
plate from the ship while he was unloading the tea. The court held that the
worker was not in his course of employment because his job has nothing to do
with the copper plate therefore the employer is not liable for this act. If a
cleaner was sent to the ship to clean it, then that person may have acted in his
course of employment and therefore the employer is liable. In contrast of the
case above, Morris v Martin Ltd, where a fur coat sent to cleaners was stolen by
the employee. The job of the employee was to clean the coat therefore the
cleaners were liable for the theft.
The course of employment is where a legal consideration of all situations which
may happen in the performance of a person’s work. It is during a period of time
where specific tasks are given by the employer to the employee. Because of this,
the employer is vicariously liable for the mistakes for his employee. Vicarious
liability is the responsibility where it falls on one person as a result of an
action of another person. In the employment law, the employer would be liable
for the torts and omissions of his employees.
For example, if a driver for a transportation firm such as buses was involved in
an accident with a pedestrian, the injured person can sue both the driver and
the transportation company. Therefore, the negligent driving by someone who was
employed as a driver is a tort committed in the course of his employment which
the employer is liable for his wrongdoings.
Another important consideration with regard to vicarious liability is the time
when the act was committed by the employee. It is normally only within the scope
of his employment if the act is committed during the authorised period of work.
A period ‘not unreasonably disconnected from the authorised period of work’ will
also be treated as being within the scope of his employment. In Ruddiman & Co v
Smith, for example, a clerk, before going home but after the hours of his
employment, accidentally left a tap running which flooded the premises. The
clerk’s employers were held liable for the damage to adjoining premises as the
act was considered to be within the scope of his employment.
There is a further important consideration with regard to employees travelling
to and from work. This would not usually be considered to be within the scope of
their employment, unless the travel is so closely connected with the person’s
work that this principle cannot apply. In Smith v Stages, for example, an
employee was involved in a road accident travelling back to his normal place of
employment after having been working elsewhere. This was held to be within the
course of his employment, as the worker was paid as a normal working day for his
day of travel. What about where an employee takes a detour? In Joel v Morrison,
the rule was established with regard to this scenario: ‘If he was going out of
his way, 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.’
34.28 Explicitly Prohibited Acts
As might be expected, the courts will usually deny vicarious liability when an
employer has expressly prohibited an employee from taking a particular action.
However, it is important to note that whilst a prohibition against taking a
particular action will be sufficient to break the link between the employee’s
conduct and the employer, the same cannot be said when an employer has merely
prohibited an employee from taking an authorised action in an unauthorised way.
This distinction is often referred to as the difference between scope of action
and manner of action. Scope of action can be seen in Iqbal v London Transport
Executive [1973] EWCA Civ 3 (another, but different bus conductor case!). A bus
conductor was prohibited from driving - it was explicitly outside of the scope
of his duties. Nonetheless, he decided to move a bus that was blocking a depot
but crashed, injuring another employee. The court rejected vicarious liability
on the basis that the conductor’s conduct was beyond his duties.
In contrast, prohibited manner of conduct can be seen in London County Council v
Cattermoles (Garages) Ltd [1953] 1 WLR 997. The employee worked for a garage,
which had petrol pumps outside. Part of the employee’s duty was to assist in the
movement of vehicles around the garage, and this included either pushing them by
hand, or guiding their drivers as they undertook tricky manoeuvres. He had been
explicitly told not to drive, being threatened with dismissal on a previous
occasion. One day, a van was parked at the pumps (blocking them) and two lorries
were waiting for petrol. The employee jumped into the van in order to move it,
and drove out into busy Pentonville Road in order to come back around into the
garage. It was at this point that he hit the claimant’s vehicle. The defendant
employer argued that they should not be held vicariously liable, since they had
prohibited such behaviour. The courts rejected this argument - whilst they had
prohibited the manner of his conduct, he was still engaged in his duty - moving
vehicles around to ensure the smooth running of the garage. Vicarious liability
was, thus, imposed.
It can, therefore, be seen that unless an entire category of action is
prohibited by an employer, they remain potentially vicariously liable for the
acts of their employees.
An employer may, on occasion, expressly forbid certain acts. Despite this,
however, it is sometimes the case that an act done which has been prohibited is
not outside the scope of employment. The policy reason for this is to avoid
employers being able to escape liability simply by issuing specific orders not
to be negligent. The rule in this area was established in Plumb v Cobden Flour
Mills Co Ltd. In this case, Lord Dunedin distinguished between prohibitions
which ‘limit the sphere of employment’, and those which ‘only deal with conduct
within the sphere of employment’. He then stated that only a transgression of
the former class carries an employee outside the scope of his employment. An
example of this being applied was in the case of LCC v Cattermoles (Garages)
Ltd. A garage worker was employed to move vehicles in a garage, but was
prohibited from driving them. When he drove a van out of the garage onto the
highway, and collided with another vehicle, it was held to be acting within the
course of his employment by making room for other vans inside the garage.
In assessing whether an employer is vicariously liable for the negligent acts of
his employees, several factors must be considered. Firstly, is the worker an
employee or an independent contractor. Then one must consider whether the
employee was operating within the course of his employment. In answering this,
the nature of his act, as well as the timing must be considered. Vicarious
liability exists to ensure that employers shoulder the financial burden of
negligence claims which they are better equipped to handle than individual
workers.
Catholic Child Welfare Society v Various Claimants
Facts
The defendant was the board of managers for a school. The school was connected
to an unincorporated association which was aimed at bringing religious education
to children (‘the Institute’). To this end, the Institute provided the school
with lay brothers from their organisation as teachers and other school staff.
The school employed the lay brothers. Several of these brothers sexually abused
the claimants. The defendant was held vicariously liable at trial for the torts
committed by the lay brothers.
The claimants argued on appeal that the Institute was also vicariously liable.
The Institute was arranged in a corporate-style hierarchy. However, the lay
brothers were not the Institute’s employees and had no contractual relationship
with the Institute. However, the brothers had a moral obligation to obey the
Institute and in practice it exercised a great deal of control over their lives.
For example, all the brothers’ earnings were given to the Institute. The
Institute saw to the brothers’ needs using their funds. The Institute were
heavily involved in running the school, since a senior brother was normally
provided as the school’s headmaster.
Issue(s)
1. Could the Institute be liable for the acts of non-employees?
2. Was the sexual abuse committed in the course of the brothers’ engagement by
the Institute?
Decision
The Supreme Court held in favour of the claimants. The relationship between the
Institute and the brothers could give rise to vicarious liability: it was ‘akin
to contract’. The torts were sufficiently connected to that relationship.
This Case is Authority For…
The Supreme Court reformulated the test for vicarious liability. To establish
vicarious liability, the claimant must now show that:
1. There is a relationship between the tortfeasor and employer which is capable
of giving rise to vicarious liability. This is not a fixed category, and
includes employees and relationships ‘akin to contract’;
2. There is a sufficiently close connection between that relationship and the
tort.
Lord Phillips explained that the fact that the relationship creates or
significantly enhances the risk of the tort occurring is a strong indication
that there is a sufficiently close connection. He also endorsed the ‘enterprise
risk’ theory of vicarious liability. He argued that there were five factors
which would make it fair, just and reasonable to impose vicarious liability:
1. The defendant is more likely to have the resources to compensate the claimant
than the primary tortfeasor;
2. The tort was caused by activities done on the defendant’s behalf;
3. The tortfeasor is likely a part of the defendant’s business activities;
4. The defendant created the risk of the tort by employing the primary
tortfeasor;
5. The defendant is likely to have some control over the primary tortfeasor.
Not all of these factors need to be present, and as Lord Reed made clear in Cox
v Ministry of Justice [2016] UKSC 10, some have more significance than others.
Cox v Ministry of Justice
Facts
The claimant managed a prison kitchen. Prisoners were obliged to work in the
kitchen and were paid a small wage in return. However, they were not legally the
prison’s employees. The claimant was accidentally injured by one of the
prisoners dropping a bag of rice on her back. She sued the Ministry of Justice,
arguing that they were vicariously liable for the prisoner’s negligence.
Issue(s)
1. Could the relationship between the defendant and the prisoner give rise to
vicarious liability?
2. Was there a sufficiently close connection between that relationship and the
relevant tort?
Decision
The Supreme Court held in favour of the claimant. The defendant was vicariously
liable for the prisoner’s negligence. This was because the prisoners worked for
the defendant’s benefit, which created the risk of negligence.
This Case is Authority For…
A relationship can give rise to vicarious liability even if there is no
employment contract between the defendant and the primary tortfeasor. An
appropriate relationship exists where the primary tortfeasor ‘carries on
activities as an integral part of the business activities carried on by a
defendant and for its benefit’. ‘Benefit’ does not need to be commercial or
financial benefit.
this case shows, if the activity is for the defendant’s benefit it does not
matter that the primary As tortfeasor also benefits. The prisoners were said to
benefit from rehabilitation activities, but this did not preclude vicarious
liability. However, Lord Reed stated that there will be no appropriate
relationship if the primary tortfeasor’s activities are ‘entirely attributable
to the conduct of a recognisably independent business of his own or of a third
party’.
There is a sufficiently close link between the relationship and the tort if, by
assigning activities to the primary tortfeasor, the defendant created the risk
of the tort.
Other
Lord Reed commented on Lord Phillip’s five factors of vicarious liability set
out in the Catholic Child Welfare case. He said that:
1. The fact that the defendant is more able to pay compensation than the primary
tortfeasor is unlikely to be of independent importance in most cases. Wealth is
not grounds by itself to hold someone liable.
2. The employer’s control over the primary tortfeasor is not particularly
important in the modern era. However, if the employer had no control over the
primary tortfeasor whatsoever, vicarious liability is unlikely.
34.29 Principal’s Tort Liability
The Distinction between Direct and Vicarious Liability
When is the principal liable for injuries that the agent causes another to
suffer?
34.30 Direct Liability
There is a distinction between torts prompted by the principal himself and torts
of which the principal was innocent. If the principal directed the agent to
commit a tort or knew that the consequences of the agent’s carrying out his
instructions would bring harm to someone, the principal is liable. This is an
application of the general common-law principle that one cannot escape liability
by delegating an unlawful act to another. The syndicate that hires a hitman is
as culpable of murder as the man who pulls the trigger. Similarly, a principal
who is negligent in his use of agents will be held liable for their negligence.
This rule comes into play when the principal fails to supervise employees
adequately, gives faulty directions, or hires incompetent or unsuitable people
for a particular job. Imposing liability on the principal in these cases is
readily justifiable since it is the principal’s own conduct that is the
underlying fault; the principal here is directly liable.
34.31 Unlawful Activity
Another category of cases exists in which employees take criminal actions during
their employment. Whilst these will often fall outside of the scope of vicarious
liability, this is not a given. The test is whether a sufficiently close
connection exists between the criminal conduct and the employee’s usual conduct.
This can be seen in the unfortunate case of Lister et al. v Hesley Hall Ltd
[2002] 1 AC 215. The employee was a warden at a school for difficult children.
It emerged that this warden was sexually abusing the children in his care.
The
claimants, thus, sought to hold the owners of the school vicariously liable for
their harms. The court applied the test of ‘closeness of connection’ to the
situation. It was held that the abuse occurred on the employer’s premises,
whilst the employee was performing his duties of caring for the children, and
thus vicarious liability was imposed. The courts also noted the obvious risk of
abuse in such circumstances, and thus that the employer should have been alert
to it.
This principle can be considered an extension of the prohibition principle
discussed in the section above - whilst sexual abuse was obviously prohibited,
it occurred during the course of the employee’s employment.
This principle has been extended relatively far by the courts, as in Mohamud v
WM Morrison Supermarkets plc [2016] UKSC 11. The claimant stopped at a petrol
station owned by the defendants. He entered the kiosk and asked the employee
manning it whether he could print off some documents from a USB stick. The
employee refused the request, using an expletive. The claimant objected to the
employee’s language, and the employee responded with a variety of threatening
and racist language.
When the claimant sought to leave, the employee followed
him to his car, and the altercation escalated to the point of the employee
physically attacking the claimant. The claimant, thus, sought to hold the petrol
station’s owners vicariously liable for their employee’s actions. This claim was
successful. Although the employee’s conduct was clearly beyond his employment,
it was nonetheless held to have occurred during the course of it. The employee’s
job was to man the kiosk, and respond to customer enquires - and it was during
this conduct that the altercation began.
34.32 Liability for Agent’s Intentional Torts
In the nineteenth century, a principal was rarely held liable for intentional
wrongdoing by the agent if the principal did not command the act complained of.
The thought was that one could never infer authority to commit a willfully
wrongful act. Today, liability for intentional torts is imputed to the principal
if the agent is acting to further the principal’s business. See the very
disturbing Lyon v. Carey.
34.33 Deviations from Employment
The general rule is that a principal is liable for torts only if the servant
committed them “in the scope of employment.” But determining what this means is
not easy.
34.34 Excess of a Servant's Authority
A master is not liable for any act done by his servant even on behalf of his
master and with intent to serve his interests, if the act is so foreign to the
nature of the servant's employment that it cannot be regarded as a mode of
perform¬ing that employment.
Thus, in Beard v. London General Omnibus Company the defendant company was held
not liable for a collision caused by the negligence of the conductor of an
omnibus, who at the end of a journey and in the temporary absence of the driver,
took upon himself to drive the omnibus for the purpose of turning it round for
the return journey. Driving an omni¬bus is not a mode rightful or wrongful of
performing the duties of a conductor; and the accident happened, not because the
conductor failed to perform his own duty, but because without authority he
attempted to fulfil that of a driver, the conductor was acting outside the scope
of his employment, and the employer was not vicariously liable for his actions.
In Nalini Ranjan Sen Gupta v. Corporation of Calcutta when a chauffeur, who was
taking his master's car to a workshop for repairs, finding the lane leading to
it impassable, left the car in charge of the cleaner, whose duty was only to
clean the car and who was forbidden to drive it, and went to the workshop, and
during his absence the cleaner drove it against and broke a municipal lamp-
post, The petitioner has been held liable for damage caused to a lamp-post by
his motor car. It is found by the learned Judge that the car was taken out by a
chauffeur, that the cleaner accompanied him, that the chauffeur stopped, the car
when he came to an obstruction, that he left the car in charge of the cleaner
while he went to a shop on business, and that while he was absent the cleaner
put the car in motion and brought it into collision with the lamp-post. The
defendant's statement that the cleaner was employed only to clean the car, and
had been forbidden to drive it, has been accepted.
In Britt v. Galmoye and Nevill the first defendant, who had the 2nd defendant in
his employment as a van driver, lent him his private car after the day's work
was finished to take friends to a theatre and the 2nd defendant by his negligent
driving injured the plaintiff. It was held that the journey was not on the
master's business and the master was not in control and, therefore, he was not
liable for the servant's act. The principle of this decision is that a owner of
a car will not be liable for the accident caused by his employee if it was
caused outside the master's employment.
Ricketts v. Thos Tilling, Ltd Ricketts'(L.R. [1915] 1 K.B. 644) case which was
relied upon by the respondent is a case in which the driver of an omnibus asked
the conductor to drive the omnibus and turn it round to make it face in the
right direction for the next journey. The master was held liable vicariously,
because the driver was negligent in the performance of the master's work. The
driver was in fact seated by the side of the conductor at the time when the
omnibus was turned round. In other words, the turning round of the vehicle was
an act within the employer's business and not something outside it. When the
driver asked the conductor to drive the omnibus for his master's business, he
did the master's work in a negligent way. The master was therefore rightly held
responsible.
The decision of the Court of Appeal in Donovan v. Laing. Wharton, and Down
Construction Syndicate, Ltd deals with a case where, though the man in charge of
a crane in the working whereof an accident was caused was the general servant of
the defendants, they had parted with the power of controlling him with regard to
the matter on which he was engaged. They had lent to a firm which was engaged in
loading a ship at their wharf the crane with a man in charge of it. It is,
therefore a case where when the accident took place the man, who was operating
the crane, was not the servant of the defendants.
In this case, the crane operator was employed by a subcontractor and was
operating the crane on the defendants' construction site. The accident occurred
due to the crane operator's negligence, resulting in injuries to the plaintiff.
The plaintiff argued that the defendants should be held vicariously liable for
the negligence of the crane operator because he was working on their site.
However, the House of Lords held that the crane operator was not the servant of
the defendants at the time of the accident. The court found that the
subcontractor had retained control over the crane operator and was responsible
for his actions. Therefore, the defendants were not vicariously liable for the
crane operator's negligence because, at the time of the accident, the crane
operator was not their employee. The case is significant for establishing the
principle that vicarious liability applies only when there is an
employer-employee relationship between the negligent party and the defendant.
This case illustrates the importance of establishing the nature of the
relationship between the negligent party and the defendant in determining
vicarious liability. It also highlights the limits of vicarious liability and
the need to consider the specific facts of each case.
We may contrast with these cases the decision of the Ex-chequer Chamber in
Bayley v. Manchester Railway Co. in which it was held that the defendant company
was liable for the act of a porter in violently putting a passenger out of a
railway carriage, under the erroneous belief that he was in the wrong train.
Here it was one of the duties of the porter to prevent passengers from getting
into the wrong trains, and although the plaintiff was in fact in the right
train, yet the act of the porter was merely a wrong and mistaken way of doing
the work entrusted to him, and not an un¬authorised assumption of work that did
not pertain to him.
The court held that the railway company was vicariously liable for the porter's
actions. The court found that the porter's actions were within the scope of his
employment and were intended to enforce the company's rules, even though they
were carried out in an improper manner.
This case is significant as it established that an employer can be held
vicariously liable for the actions of its employees, even when those actions are
excessive or unreasonable, if they are carried out in the course of employment.
It highlights the principle that employers are responsible for the conduct of
their employees while they are acting within the scope of their employment
duties.
34.35 Acts Done by a Servant on His Own Behalf
When a servant acts on their own behalf rather than in the course of their employment, the master (employer) is generally not liable for the servant's actions. This principle is known as the "frolic of his own" or "frolic and detour" rule. If the servant's actions are considered a "frolic," meaning a significant departure from their employment duties, the master is not held liable.
However, determining whether an action falls within the scope of employment can be complex and depends on the specific circumstances of the case. Courts will consider factors such as:
- Whether the action was expressly or impliedly authorized by the employer.
- Whether the action was a common or foreseeable part of the employee's duties.
- Whether the action was for the benefit of the employer or solely for the employee's own purposes.
- Whether the action occurred during work hours and within the workplace.
- Whether the nature of the employment gave the employee the opportunity to commit the wrongful act.
If the servant's actions are found to be within the scope of their employment, the master may still be held liable. If, however, the servant's actions are clearly unrelated to their employment and solely for their own benefit, the master is less likely to be held liable.
This general principle has the effect of exempting an employer from liability in at least four important classes of cases which require special consideration:
- When a servant is guilty of fraud or other wilful wrongdoing on his own account.
- When he uses his master's property for his own purposes without authority and does harm thereby.
- When he is guilty of negligence contemporaneous with the execution of his master's business but not in connection with it.
- When he is negligent in that which his master permits him to do on his own account, but does not employ him to do so.
34.36 Wrongdoing by a Servant in His Own Self-Interest
The liability of a master extends to frauds and other wilful wrongs. If his servant does fraudulently what he is employed to do honestly, the master must answer for such fraud. For instance, in the case of Barwick v. English Joint Stock Bank, the court held that the bank was vicariously liable for its manager’s fraudulent representation, as it was made in the course of his duties.
However, where the fraud or other wilful wrong of the servant is committed on his own account and not for the benefit of his master, the master is not answerable. In the case of State Bank of India v. Sohana Devi (A.I.R. 1978 S.C. 1263), the court held that if a bank employee misappropriates money given to him in his private capacity as a friend, the bank cannot be held liable.
Similarly, in British Mutual Banking Co. v. Charnwood Forest Rly. Co., the court ruled that an employer is not liable when an employee makes fraudulent statements for their own benefit.
The rule of law states that an employer’s liability extends only to the fraud committed in the course of employment and for the employer’s benefit. For example:
- If an employer receives property for safe custody and it is stolen by an employee without the employer’s negligence, the employer is not liable.
- In Gopal Chandra Bhattacharjee v. The Secretary of State for India (1925 I.L.R. 50 Bom. 118), the court held that an employer is not responsible for a servant's misconduct unless it was done within the scope of employment.
34.37 The “Scope of Employment” Problem
Understanding the "scope of employment" in tort cases can be complex due to several factors:
- Nature of the Employment: Determining whether an employee's actions were within the scope of their employment requires an examination of the nature of the employment relationship. Factors such as the job description, authority given to the employee, and the nature of the work performed can all impact this determination.
- Authorization: An employer is generally liable for the actions of an employee if the employee was acting within the scope of their authority. However, determining the extent of an employee's authority can be challenging, especially in cases where the employee's actions were not explicitly authorized but could be deemed to be within the scope of their duties.
- Frolic and Detour: Courts often consider whether an employee's actions constitute a "frolic and detour"- a significant deviation from their duties. If an employee is on a frolic of their own, meaning they are pursuing their own interests rather than those of the employer, the employer may not be held liable.
- Intentional Acts: Employers are generally not liable for intentional torts committed by their employees unless the actions were within the scope of employment. Determining whether an intentional act was within the scope of employment can be complex, as it may depend on factors such as the nature of the act and the context in which it occurred.
- Benefit to the Employer: Courts often consider whether the employee's actions were intended to benefit the employer. If an employee's actions were intended to further the employer's interests, even if done in an unauthorized or negligent manner, the employer may be held liable.
- Course of Employment: The concept of "course of employment" can also be challenging to define. It generally refers to the time, place, and circumstances in which an employee is authorized to work. Determining whether an employee's actions occurred within the course of employment requires a careful analysis of these factors.
- Third-party Liability: Employers may also be held vicariously liable for the actions of third parties, such as independent contractors, in certain circumstances. Determining the scope of this liability can be complex and may depend on the specific facts of the case.
Overall, understanding the scope of employment in tort cases requires a careful analysis of the facts and circumstances surrounding the employee's actions. Courts will consider a variety of factors in making this determination, and each case must be assessed on its own merits.
It may be clear that the person causing an injury is the agent of another. But a principal cannot be responsible for every act of an agent. If an employee is following the letter of his instructions, it will be easy to determine liability. But suppose an agent deviates in some way from his job. The classic test of liability was set forth in an 1833 English case, Joel v. Morrison. The plaintiff was walking on foot on a public highway. The defendant had a horse and a cart, which were under the care, government, and direction of his servant.
The servant was driving the cart carelessly, improperly, and negligently and struck the plaintiff with the cart whilst making a detour from the task his master had sent him for. The plaintiff fell on the ground and, as a result, one of his legs was fractured. He was prevented from conducting his business for six months, he had to incur medical expenses, and further expenses in order to employ workers to look after his business. The plaintiff sought compensation from the master.
Is the master of a servant liable in damages for the careless driving of the latter?
The verdict was in favour of the plaintiff:
- The master is liable for the careless driving of his servant if the servant is driving the cart on his master’s business or if the servant, being on his master’s business, decides to take a detour.
- The master is not liable for the careless driving of his servant if the servant decides to lend the cart to another person without the master’s knowledge or the cart is secretly taken by a person who is not at the time employed on his master’s business.
The test is thus one of degree, and it is not always easy to decide when a detour has become so great as to be transformed into a frolic. For a time, a rather mechanical rule was invoked to aid in making the decision. The courts looked to the servant’s purposes in “detouring.” If the servant’s mind was fixed on accomplishing his own purposes, then the detour was held to be outside the scope of employment; hence the tort was not imputed to the master. But if the servant also intended to accomplish his master’s purposes during his departure from the letter of his assignment, or if he committed the wrong while returning to his master’s task after the completion of his frolic, then the tort was held to be within the scope of employment.
This test is not always easy to apply. If a hungry deliveryman stops at a restaurant outside the normal lunch hour, intending to continue to his next delivery after eating, he is within the scope of employment. But suppose he decides to take the truck home that evening, in violation of rules, in order to get an early start the next morning. Suppose he decides to stop by the beach, which is far away from his route. Does it make a difference if the employer knows that his deliverymen do this?
The case is significant for clarifying the scope of an employer's liability for the actions of an independent contractor.
The main issue before the court was whether Morrison could be held vicariously liable for the actions of his driver, despite the driver's status as an independent contractor.
The Supreme Court of Canada held that Morrison could be held vicariously liable for the driver's negligence. The court emphasized that the key factor in determining vicarious liability is not the formal legal relationship between the parties (i.e., whether the driver was an employee or an independent contractor), but rather the degree of control that the employer has over the employee or contractor.
In this case, the court found that Morrison exercised significant control over the driver, including setting rates, dispatching cabs, and requiring the driver to wear a company uniform. As such, the court concluded that Morrison was in a position to prevent the harm caused by the driver's negligence and should be held liable for that harm.
The case of Joel v. Morrison is significant for clarifying the circumstances in which an employer can be held vicariously liable for the actions of an independent contractor. It underscores the principle that vicarious liability is based on the degree of control that the employer has over the person causing the harm, rather than the formal legal relationship between the parties.
The phrase "frolic and detour" in this case is used to describe a situation where an employee deviates from their assigned task (a detour) but is still considered to be acting within the scope of their employment, or when an employee goes on a significant departure from their duties (a frolic) and is no longer considered to be acting within the scope of their employment.
The test of whether an employee's actions constitute a frolic or detour is one of degree. Courts have to assess the nature and extent of the deviation from the employee's duties to determine if it is still within the scope of employment. This can be a complex and fact-specific analysis.
In the past, a more mechanical rule was sometimes applied, where courts would consider the servant's purposes in detouring to determine if the action was a frolic or detour. However, this approach has been criticized for being too simplistic and not taking into account the broader context of the employment relationship and the specific circumstances of the case.
Modern courts are more likely to consider a range of factors in determining whether an employee's actions constitute a frolic or detour, including the nature of the employment, the extent of the deviation from the assigned task, the time and place of the deviation, and the employer's control over the employee's actions. This approach allows for a more nuanced and context-specific analysis of vicarious liability in cases where an employee's actions deviate from their duties.
The discussion regarding the "frolic and detour" concept and the test of degree in determining vicarious liability was not directly relevant in the case of Joel v. Morrison. In that case, the key issue was whether the taxi driver, who was an independent contractor, was acting within the scope of his employment when he caused the accident. The court focused on the degree of control that the taxi company exercised over the driver and concluded that the company could be held vicariously liable for the driver's negligence.
While the principles of frolic and detour are relevant in cases involving employees and the scope of their employment, the Joel v. Morrison case dealt more with the nature of the relationship between the taxi company and its drivers, rather than the specific actions of the driver at the time of the accident.
34.38 The Zone of Risk Test
The “Zone of Risk” test is a concept used in the context of vicarious liability to determine whether an employer can be held liable for the actions of an employee that result in harm to a third party. The test focuses on whether the employee’s actions were closely connected to their employment and whether the harm caused was reasonably foreseeable.
Under the Zone of Risk test, an employer can be held vicariously liable if the employee’s actions were within the “zone of risk” created by the employment relationship. This means that if the employee’s actions were a foreseeable consequence of their employment, the employer may be held responsible for any harm caused, even if the specific manner in which the harm occurred was not anticipated.
The Zone of Risk test is used by courts to determine the extent of an employer’s liability in cases where an employee’s actions result in harm. It helps to establish a connection between the employee’s conduct and their employment, which is necessary for vicarious liability to apply.
It’s important to note that the application of the Zone of Risk test can vary depending on the jurisdiction and the specific facts of the case. Courts will consider factors such as the nature of the employment, the relationship between the employee and the employer, and the circumstances surrounding the harm caused in determining whether vicarious liability applies.
Court decisions in the last forty years have moved toward a different standard, one that looks to the foreseeability of the agent’s conduct. By this standard, an employer may be held liable for his employee’s conduct even when devoted entirely to the employee’s own purposes, as long as it was foreseeable that the agent might act as he did.
The employer will be within the zone of risk for vicarious liability if the employee is where she is supposed to be, doing-more or less-what she is supposed to be doing, and the incident arose from the employee’s pursuit of the employer’s interest (again, more or less). That is, the employer is within the zone of risk if the servant is in the place within which, if the master were to send out a search party to find a missing employee, it would be reasonable to look.
34.39 Special Cases of Vicarious Liability
Vicarious liability is not limited to harm caused in the course of an agency relationship. It may also be imposed in other areas, including:
- Torts of family members
- Other torts governed by statute or regulation
We will examine each in turn.
34.40 Use of Automobiles
A problem commonly arises when an automobile owner lends his vehicle to a personal friend, someone who is not an agent, and the borrower injures a third person. Is the owner liable? In many states, the owner is not liable; in other states, however, two approaches impose liability on the owner:
- Legislative Approach: Owner’s consent statutes make the owner liable when the automobile is being driven with his consent or knowledge.
- Judicial Approach: The family purpose doctrine makes the owner liable if a family member was furthering family purposes when using the car.
For example, in Dixon v. Phillips, a father allowed his minor son to drive the car but expressly forbade him from letting anyone else do so. The son gave the wheel to a friend, and a collision occurred while both were in the car. The court held the father liable because he made the car available for the pleasure and convenience of his son and other family members.
34.41 Torts of Family Members
Torts involving family members can present unique legal challenges. While family relationships are often characterized by love and support, conflicts can arise that lead to legal disputes. Common torts involving family members include:
- Negligence: Family members can be held liable if they fail to exercise reasonable care, resulting in harm to another family member. Example: A parent may be liable for failing to supervise their child, leading to injury.
- Intentional Torts: Includes assault, battery, or intentional infliction of emotional distress. Example: A sibling who physically harms another sibling may be liable for battery.
- Defamation: Family members can be liable for making false and damaging statements about another family member. Example: Spreading false rumors that damage a family member’s reputation.
- Invasion of Privacy: Occurs when a family member intrudes upon another’s privacy. Example: A parent reading their child's diary without permission.
- Parental Liability: Parents may be held financially responsible for the actions of their minor children. Example: A minor causing property damage.
- Loss of Consortium: Some jurisdictions allow family members to claim loss of consortium if they are deprived of family relationship benefits due to wrongful actions. Example: In cases of serious injury or death.
At common law, the husband was liable for the torts of his wife, not because she was considered an agent but because she was considered to be an extension of him. “Husband and wife were only one person in law, ”O.W. Holmes, Agency, says Holmes, and any act of the wife was supposed to have been done at the husband’s direction (to which Mr. Dickens’s Mr. Bumble responded, in the memorable line, “If the law supposes that, the law is a ass-a idiot” Charles Dickens, Oliver Twist, (London: 1838), chap 51.). This ancient view has been abrogated by statute or by court ruling in all the states, so that now a wife is solely responsible for her own torts unless she in fact serves as her husband’s agent.
Unlike wives, children are not presumed at common law to be agents or extensions of the father so that normally parents are not vicariously liable for their children’s torts. However, they can be held liable for failing to control children known to be dangerous.
Most states have statutorily changed the common-law rule, making parents responsible for willful or malicious tortious acts of their children whether or not they are known to be mischief-makers. Thus, the Illinois Parental Responsibility Law provides the following: “The parent or legal guardian of an unemancipated minor who resides with such parent or legal guardian is liable for actual damages for the willful or malicious acts of such minor which cause injury to a person or property. Several other states impose a monetary limit on such liability.
34.42 Other Torts Governed by Statute or Regulation
There are certain types of conduct that statutes or regulation attempt to control by placing the burden of liability on those presumably in a position to prevent the unwanted conduct. An example is the “Dramshop Act,” which in many states subjects the owner of a bar to liability if the bar continues to serve an intoxicated patron who later is involved in an accident while intoxicated. Dram shop laws vary by state in the United States, but they generally allow individuals who have been injured by an intoxicated person to sue the establishment that served the alcohol. These laws are based on the principle that establishments that profit from selling alcohol have a duty to do so responsibly and not to serve alcohol to individuals who are visibly intoxicated.
Under dram shop laws, an injured party may be able to recover damages such as medical expenses, lost wages, pain and suffering, and other losses caused by the actions of an intoxicated person. In some states, there are also criminal penalties for establishments that violate dram shop laws.
It's important to note that dram shop laws have limitations and may not apply in all situations. For example, some states have exceptions for social hosts who serve alcohol at private gatherings. Additionally, the specific requirements and procedures for filing a claim under dram shop laws can vary by state.
Overall, dram shop laws are intended to hold establishments accountable for their role in serving alcohol to intoxicated individuals and to deter them from overserving alcohol in the future.
Another example involves the sale of adulterated or short-weight foodstuffs: the employer of one who sells such may be liable, even if the employer did not know of the sales.
Mersey Docks and Harbour Board v Cameron (1865) 29 JR 483 is an important case in the context of administrative law and the relationship between statutory powers and the royal prerogative.
This case is significant in legal history, particularly regarding the concept of the royal prerogative and its interaction with statutory powers granted by Parliament. Here is a detailed analysis of the case based on the information provided:
- Background: The Mersey Docks and Harbour Board, the claimant in the case, was involved in operating docks and harbours in the Mersey estuary. The trustees of the Birkenhead Docks, empowered by various Acts of Parliament, had the authority to take lands, construct works, impose rates for vessels using their docks, and lease their wharfs and quays.
- Legal Issue: The central legal issue in the case was whether the trustees of the Birkenhead Docks had the authority to impose rates for vessels using their docks, and whether such authority violated the royal prerogative's immunity from such rates.
Argument of the Mersey Docks and Harbour Board: The Mersey Docks and Harbour Board argued that the imposition of rates by the Birkenhead Docks trustees violated the royal prerogative's immunity from such rates. They likely contended that the rates imposed were beyond the statutory powers granted to the trustees.
- Decision: The court held that the trustees of the Birkenhead Docks had the statutory authority to impose rates for vessels using their docks. The court likely found that the rates were within the limits set by the Acts of Parliament and that they were a valid exercise of the trustees' powers.
- Significance: This case is significant as it illustrates the balance between statutory powers granted by Parliament and the royal prerogative. It establishes that statutory powers can override the royal prerogative in certain circumstances, particularly when the powers are granted by Parliament and exercised within the limits set by law.
- Legal Principles: The case highlights the principle that statutory powers granted by Parliament can limit or modify the royal prerogative. It also underscores the importance of interpreting statutory powers in accordance with the intentions of Parliament.
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151: An English tort law and UK labour law case, which held that a worker can have more than one employer at the same time, who will be vicariously liable for the worker.
- Background: Viasystems (Tyneside) Ltd ("Viasystems"), a printed circuit board manufacturer, contracted Thermal Transfer (Northern) Ltd ("Thermal Transfer") to install an air conditioning unit at its factory in South Shields. Thermal Transfer subcontracted the installation work to S&P Darwell Ltd ("S&P Darwell"). During the installation process, a flood occurred, causing damage to Viasystems' property and resulting in a loss of production.
- Legal Issue: Whether Thermal Transfer and S&P Darwell owed a duty of care to Viasystems in relation to the installation of the air conditioning unit and whether they breached that duty.
- Decision: The Court of Appeal held that both Thermal Transfer and S&P Darwell owed a duty of care to Viasystems and that they had breached that duty. The court found that Thermal Transfer had failed to properly supervise the installation work, which led to the flood. Additionally, S&P Darwell had failed to take reasonable care in carrying out the installation, contributing to the flood.
- Significance: The case reaffirms the principles of negligence and duty of care. It highlights the importance of contractors and subcontractors taking reasonable care in carrying out their work to avoid causing harm to third parties. The case also emphasizes the need for proper supervision and oversight in construction and installation projects to prevent accidents and damage.
Hillyer v. Governors of St Bartholomew's Hospital: The House of Lords held that the hospital was not vicariously liable for the negligence of a doctor who was an independent consultant.
- Background: Mr. Hillyer, the plaintiff, underwent surgery at St Bartholomew's Hospital, performed by a consultant surgeon who was not an employee of the hospital but rather an independent contractor. During the surgery, Mr. Hillyer suffered injuries due to alleged negligence on the part of the surgeon.
- Legal Issue: Whether the hospital could be held vicariously liable for the actions of the independent consultant surgeon.
- Decision: The House of Lords held that the hospital was not vicariously liable for the actions of the consultant surgeon. The court considered the nature of the relationship between the hospital and the surgeon and found that the hospital did not have sufficient control over the surgeon's work to establish vicarious liability.
- Significance: The case clarifies the limits of vicarious liability in the context of independent contractors. It establishes that vicarious liability does not automatically apply to independent contractors and that the nature of the relationship between the parties is crucial in determining liability.
Biffa v Maschinenfabrik and Others (1) [2008] EWCA Civ 1257
- The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor.
- The defendant appealed against the finding that it was responsible for the sub-contractor’s failure.
- The risk of fire had been identified, but not properly understood.
- The judge found that the defendant had imposed sufficient control over the way the task had been handled to have become responsible.
- Held: The defendant’s appeal was allowed.
- Biffa could not establish liability under the borrowed employee rule- the workmen had too much independence.
- Supervision is not control, and the judge had erred.
- The principle making a main contractor responsible for the acts of properly chosen independent sub-contractors in ultra-hazardous situations should be restricted to exceptional cases.
- The decision in Honeywill should be restricted.
- The Court of Appeal noted that:
- Pickfords’ men were skilled welders using their own equipment.
- They had their own foreman on site.
- OT had no control over how they welded.
- Supervision is not control.
- Stanley Burton LJ held that the doctrine in Honeywill should apply only to activities that are exceptionally dangerous regardless of precautions.
- The contractor’s activities in this case did not meet that threshold.
- Honeywill and Stein Ltd v Larkin Brothers (London’s Commercial Photographers) Ltd
- The claimants, acoustics specialists, hired the defendant as an independent contractor for photography in a cinema.
- The defendant’s use of flashlight photography, involving flammable chemicals, caused a fire.
- The cinema’s owners threatened to sue the claimants in negligence.
- The claimants sought to recover compensation from the defendant.
- Held: The Court of Appeal ruled in favor of the claimants.
- Ordinarily, employers are not liable for independent contractors’ acts.
- However, liability arises for extra-hazardous activities where precautions cannot mitigate risks.
- Bird v DP (a pseudonym) [2023] VSCA 66 (3 April 2023)
- A Supreme Court of Victoria, Court of Appeal decision concerning the original ruling in DP v Bird [2021] VSC 850.
- Original claim involved psychological injuries due to alleged assaults by Catholic Priest Father Bryan Coffey in 1971.
- The Respondent claimed:
- The Diocese was vicariously liable for Coffey’s assaults.
- The Diocese was directly liable in negligence.
- Trial Judge Forrest J found:
- The assaults had occurred.
- The Diocese was vicariously liable.
- However, direct liability in negligence was not established.
- Damages were assessed at $230,000.
- Appeal: Bird sought leave to appeal on grounds including:
- Coffey was not an employee of the Diocese.
- The trial Judge erred in finding vicarious liability.
- The relationship between the Diocese and Coffey did not support vicarious liability.
The Court of Appeal found that it was not made out and held that Forrest J was correct to conclude that the relationship between Coffey as an assistant priest, and the Diocese was one which, in an appropriate case, would render the Diocese vicariously liable for any tort committed by Coffey in his role as an assistant priest within the Diocese.
Cox v Ministry of Justice [2016] UKSC 10 In Cox, the issue was whether the prison service, which is an executive agency of the defendant, was vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act was negligent and caused injury to a member of the prison staff.
Mrs Cox worked as the catering manager at HMA Swansea, where she had day to day charge of the operation of the kitchen. She supervised four members of staff and there were also about 20 prisoners who worked in the kitchen and came under her supervision.
While taking delivery of some kitchen supplies, a prisoner attempted to carry two sacks past Mrs Cox, lost his balance, and dropped one of the sacks onto her back, causing her injury. It was accepted that this was negligent.
The Prison Rules require that convicted prisoners (whether in private or state prisons) shall be required to do useful work for not more than 10 hours per day. The defendant’s policy in relation to such work was that the discipline and routine of regular working hours instils an ethos of hard work into prisoners and that prison should be a place where work is central to the regime and offenders learn vocational skills.
Work can be provided either by the prison or by external providers in the private, voluntary and community sectors.
Prisoners can apply to work in prison kitchens and selections are carried out after relevant assessments have been made. Prisoners may be paid for their work at rates approved by the Secretary of State (£11.55 per week at the relevant time), to encourage and reward their constructive participation. If prisoners did not work in the catering department, additional costs would have to be incurred in employing staff or engaging contractors. Prisoners were not generally allowed their own food, so they depended on the prison service to be fed.
Trial Judge
The trial judge found that the prison service was not vicariously liable for the prisoner’s negligence. He focused on whether the relationship between the prison service and the prisoner was akin to that between an employer and employee and concluded that it was not.
Although he accepted that there were some respects in which the relationship resembled employment, he considered that there was a crucial difference. Employment was a voluntary relationship, in which each party acted for its own advantage. The position regarding prisoners was quite different; the prison authorities were legally required to offer work and make payment for that work. Those requirements were not a matter of voluntary enterprise but of penal policy. The provision of work was a matter of prison discipline, of prisoner’s rehabilitation, and possibly of discharging the prisoners’ obligations to the community. Although the work done by prisoners might contribute to the efficient and economical operation of the prison, the situation was not one in which prisoners were furthering the business undertaking of the prison service.
Court of Appeal
The Court of Appeal overturned this decision.
It observed that the work performed by prisoners in the kitchen was essential to the functioning of the prison, and if not done by prisoners would have to be done by someone else. It was therefore done on behalf of the prison service and for its benefit. It was part of the enterprise or benefit of the prison service in running the prison. In short, the prison service took the benefit of this work, and there was no reason why it should not take its burdens.
Although the relationship differed from a normal employment relationship in that the prisoners were bound to the prison service not by contract but by their sentences, and also in that the prisoners’ wages were nominal, those differences rendered the relationship, if anything, closer than one of employment: it was founded not on mutuality but on compulsion.
The Supreme Court upheld the Court of Appeal’s decision.
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ISBN No: 978-81-928510-0-6
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