Elements and position of vicarious liability

1.      INTRODUCTION

The term vicarious liability consists of two words which are ‘vicarious’ and ‘liability’. The word vicarious means an experience in the imagination through the feelings or actions of another person[1] and the word liability means a state of been legal responsible for something[2]. The Black’s dictionary defined the term vicarious liability as the imposition of liability on one person for the actionable conduct of another, based solely upon a relationship between two persons.Also is a liability where a person is liable for the wrong done rather than the wrongs of another person but in certain relationships like those of principle and agent partners in partnership firm and master-servant vicarious liability arises.

Hence the term vicarious liability can be referred to as; the liability imposed to a person so he may pay for damages or compensation to an injured person, for which injuries of the injured person were not of his knowledge rather because of the act or omission of another person, whether intentionally or negligently, which so happens due to the presence of a certain relation which exist between them.

2.      ELEMENTS OF VICARIOUS LIABILITY

For vicarious liability to be established there are must be circumstances or factor that must be clearly proven.

a.       These are if whether the tort was committed,

b.      Whether the tort was committed by an employee, and

c.       Whether an employee committed the tort while acting in the course of employment.

There should be some relationship between the wrong doer and the person who gave the order. Relationship can be that of Master-Servant, Principle-Agent, Independent Contractors and alike. 

3.      POSITION OF VICARIOUS LIABILITY IN TANZANIA

In Tanzania, the doctrine of vicarious liability is recognized even under customary law. This position is to be found in the decision of East African Court of Appeal, in the case of KIBAKAv. KITONTO, that decision was adopted by the late Maganga J. (as he then was) in the case of MARIBA WANYANGI v. ROMARE, Mwalusanya J. In the case of SALIM RAMADHANI v. IDDI BAKARI BUSA, quoted the two cases with approval holding many of our tribes including warangi tribe recognize the doctrine of vicarious liability.[3]

In THE MANAGER IMARA GUEST HOUSE v. EGNAS KAGANDA, the respondent while lodging in the appellant's house, had his radio cassette stolen. It was proved that the radio cassette was stolen while the respondent was not around having locked his door. Both the trial Magistrate and the High Court Judge found the branch manager liable for the loss due to the fact that the keeper (appellants employee) was under an implied contract to take care for the safety of property brought in the house by a guest and further that the employer was vicariously liable for the acts done by his employee in course of employment. [4]

4. “EMPLOYERS” LIABILITY AND VICARIOUS LIABILITY

While vicarious liability the employer is liable for the negligent or intentional act or omission done by his employee, employers’ liability an employer is liable to pay for the damages incurred to the employee during the course of employment. So, both, vicarious liability and employers’ liability are liability that the employers, when their employee are in the course of employment.

The relationship that exists between the liabilities is not only through who suffers the liability but through the doctrine which establishes the bases of both liabilities. Both liabilities are on the basis of the doctrine of respondent superior, a Latin maxim of ‘let the superior or the master respond for the wrong that was done, qui facit per allium facitperse (he who does anything by another does it by himself). So, the employers are liable in both liabilities for the damages caused by or incurred to the employees, for they work not for their benefit but for the employers benefit.

 PROVING OF EMPLOYER-EMPLOYEE RELATIONSHIP

Proving the employer-employee relationship is important in establishing vicarious liability. In order prove the relationship the courts established various tests to prove the employer-employee relationship.

CONTROL TEST.

One of the early tests to determine this issue was the Control Test. This was first executed in nineteenth century in the case of Yewens v Noakes[5].  It was stated by Justice Bramwell, that a servant is a person subject to the command of his master as to the manner in which he shall do his work. 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.

However, this test was seen to be inappropriate, when considered in relation to skilled workers whose qualifications sometimes exceeded that of their employers.

ORGANIZATIONAL TEST

The question put forward in this test was whether the servant was a part of the organization. The test came out of hospital cases for it wasn’t easy to establish employer’s (hospital’s) control towards their employees (medics). This test was devised by Lord Denning in Stevenson Jordan & Harrison Ltd v MacDonald and Evans[6]. 

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.”  Hence this test places liability on hospitals for torts committed by medics because medics are part of the hospitals.

MULTIPLE TEST

This test was first established in the case of Ready Mixed Concrete (South East) Ltd v MPNI[7].  The test is based upon the realization that no one deciding factor can distinguish between contract of service and contracts for services rendered, since the employment relationship is far more complex and there are number of issues that require to be taken into consideration. .

The courts then recognized that a single test was not enough to determine employment status so the courts developed a multiple test in Ready Mixed Concrete v Minister of Pensions[8], whereby all factors in the relationship should be considered. All tests are open to interpretation and there is no conclusive or definitive test; in the case of Hall v Lorimar[9]the Court of Appeal said no single test is absolute.

This then, made an open door to many other different ‘principles’ establishing different guiding tests for different situation regarding the manner of relationship that exist between the employee and the employer. The following are some examples.

•  CASUAL DELEGATION

In the case of Morgan v Launchbury[10], the house of lords ruled that where a car owner delegates driving to his/her spouse and the spouse delegates to another and that other is negligent, the owner shall not be vicarious liable.

•  CONCEPT OF CONTRACT OF SERVICE AND CONTRACT FOR SERVICE

This concept was introduced from the case of Stevenson Jordan & Harrison Ltd v MacDonald and Evans[11] by lord Denning. In contract of service the master of employer has total control of the means and manner of work of the employee or servant, while in contract for service the employer has very minimum or no control over the actions of the employee, because mostly in this situations the employees are professionals.

 In contract of service, an employee is regarded as a tool of work whilein contract for services denotes a situation where the master engages in the services of an ‘independent contractor’ to achieve a particular results, after a specific service from an independent contractor, where after then, there is no further contract.

In contract of service, if the employee or servant commit a tort in course of employment the master or employer will be liable while in contract for service, as a general rule, the master or employer shall not regarded liable for the act of an independent contractor.

5. INDEPENDENT CONTRACTOR

The relationship between a principle and independent contract differs from that of ‘master-servant’ in that there is no control. In the case of independent contractor the general rule is that an employer is not liable for the torts of an independent contractor. The rationale for this rule is that an employer does not exercise control over an independent contractor.

This is because the contract between the principle and the independent contractor is a contract for service. While the contract between the master and servant is a contract of services. A contract for service is concerned with only ‘what’ while that of service deals with both ‘the what’ and ‘how’[12].

EXCEPTIONS TO THE GENERAL RULE

There several exceptions that where established out of the general rule in the doctrine of independent contractor.

A.     NEGLIGENCE IN CHOOSING THE CONTRACTOR

The employer will not be excused on the liability caused by the independent contractor when he had negligently chooses a contractor. The case of Pinn v Rew (1916)[13] is authority for the proposition that an employer will be liable if he negligently chooses an independent contractor, and fails to instruct him properly or fails to check the work where he is competent to do so.

B.     EXTRA HAZARDOUS OPERATIONS

Where the independent contractor is involved in an extra hazardous activity, which has been defined as something which involves the risk of special danger to others, then the employer will be liable. This is seen in the case of Honeywill and Stein Ltd v Larkin Bros Ltd (1934)[14]. It had previously been held that employers were not liable for the torts of independent contractors, as they are for their employees but SlesserLJ,explain the finding of liability by stating that where an activity is contracted for, which brings with it an inherent danger, this is non-delegable:

C.     LIABILITY FOR FIRE

Another exception to the principle of independent contractor is on the liability on fire accidents. In Balfour v Barty-King (1957)[15], the defendant negligently thawed pipes with a blow lamp, thus negligently setting fire to the plaintiff’s property. The defendant was held liable for the contractor’s negligence. Langton J followed a similar line of reasoning in the case of Honeywill and Stein Ltd v Larkin Bros Ltd (1934)[16], stating that there should be two exceptions to employers not being liable for independent contractors; where a special duty is, by statute, imposed on an employer, and where chemicals or substances which are dangerous in themselves are to be used.

D.    OPERATIONS ON OR CONTIGUOUS TO THE HIGHWAY

In Tarry v Ashton (1876)[17], the defendant’s lamp which projected over the highway fell and injured the plaintiff. The fact that the defendant had delegated repair of the lamp to an independent contractor was no defense.

EXCEPTION TO SUB-BAILEES

The case of Morris v CW Martin and Sons Ltd (1966)[18]created another exception was established. In the case of where Mrs, Morris seek for damages on his lost ‘fur’ coat which was lost in the possession of CW Martin and Sons Ltd, Denning LJ argued that, a duty of care was owed by the sub-bailees to take reasonable care of the fur coat. This duty was non-delegable, therefore themselves were personally liable for the conversion of their employee, in stealing the coat Hence, the case created a general duty of sub-bailees to take due care in the possession of goods.

NON DELEGABLE DUTIES PROVIDED BY COMMON LAW

The case of Rylands v Fletcher created a rule of strict liability and the employer will be liable for the acts of an independent contractor.Common law duties owed by an employer to an employee .These duties are personal and cannot be delegated.

6.  CONCLUSION

In summing up, the concept of vicarious liability is a very complex issue, as it is torn between trying to protect the right of the victim to gain sufficient compensation and trying to protect the employer from being overburdened by their employees. Although it goes against the principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability seems appropriate as it does serve a useful purpose; it contributes to the maintenance of safety standards and it enables the victims of negligence by employees to be reasonably certain that someone will be in a position to pay them compensation.

REFERENCE

CASES

Yewens v Noakes 6 QBD 530

Ready Mixed Concrete v Minister of Pensions 2 QB 497

Hall v LorimarEWCA Civ 25

Stevenson Jordan & Harrison Ltd v MacDonald and Evans. 1 TLR 101

Ready Mixed Contcrete (South East) Ltd v MPNI2 QB 497

Morgan v LaunchburyCA ([1971] 2 QB 245)

Stevenson Jordan & Harrison Ltd v MacDonald and Evans 1 TLR 101

Pinn v Rew (1916) 32 TLR

Honeywill and Stein Ltd v Larkin Bros Ltd (1934) 1 KB 191

Balfour v Barty-King (1957)1 QB. 496 [1957] 2 W.L.R. 84

Honeywill and Stein Ltd v Larkin Bros Ltd (1934) 1 KB 191

Tarry v Ashton (1876)1 QBD 314

Morris v CW Martin and Sons Ltd (1966)

BOOKS

Oxford Law Dictionary 5^th Edition

Binamungu, C.S (2004), Law of Torts in Tanzania ,Research and Publication Department, Mzumbe University

G. Stephenson, Source Book on Law of Torts, Cavendish Publishing

R. Owen, Essential of Torts 3^rd edition, University of Glamorgan

V. Harpwood, Principles of Torts 4^th edition, Cavendish Publishing

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[1]Oxford Law Dictionary 5^th Ed

[2]Oxford Law Dictionary 5^th Ed

[3]Binamungu, C.S (2004), Law of Torts in Tanzania ,Research and Publication Department, Mzumbe University, p 76

[4] [1981]TLR 40 [Maina J.]

[5] 6 QBD 530

[6]1 TLR 101

[7]2 QB 497

[8]2 QB 497

[9]EWCA Civ 25

[10]CA ([1971] 2 QB 245)

[11]1 TLR 101

[12]Binamungu, C.S (2004), Law of Torts in Tanzania ,Research and Publication Department, Mzumbe University

[13]32 TLR 451

[14] 1 KB 191

[15]1 QB. 496; [1957] 2 W.L.R. 84;

[16] 1 KB 191

[17]1 QBD 314

[18]1 QB 716