UNIT 4 SECTION 4 VICARIOUS

BUSINESS LAW Unit 4, section LIABILITY

4: Vicarious liability

Vicarious Liability occurs where one party is held responsible for a civil
wrong committed by someone else. The doctrine of vicarious liability
occurs in a business context where an employer is will be held responsible
for the tort committed by his employee. Where the negligent action of an
employee results in damage to property or injuries to a third party the
employer may have to compensate the third party for such injuries or
damages.

At the end of this section, students should be in a position to

 Identify the two torts which may be committed under the law of
nuisance
 Explain the following relating to nuisance
 Duration and timing
 Sensitivity of the plaintiff
 Malice
 Identify the defences in Nuisance

Vicarious liability was defined in the case of Hudson v Ridge

Manufacturing (1957) as a doctrine whereby an employer will be held liable
for the tort of his employees. The doctrine does not require the employer to
have participated in the in the commission of the tort only that there is a
relationship between him and the tortfeasor that will enable the law to hold
the employer responsible.

Justification for the doctrine

Various explanations have been given to justify the imposition of liability
on the employer instead of the employee. Among these justifications are:

 The employer has expressly or impliedly authorized the action of the

employee and therefore should satisfy any claim on the basis of
damages or injury as a consequence.

 It is justified on the basis that the employer may have employed a

negligent employee or may have failed in his duty to have adequately
controlled the employee and hence set the whole thing in motion.
 The employer derives financial benefit from the work of the employee
and therefore should be responsible for losses (referred to as
“enterprise risk”. The employer is also said to have a deeper pocket
than the employee and therefore in a better financial position to satisfy
a claim.

 Employers are in most cases companies and are able to distribute any
losses more successfully than would private individuals where a claim
could lead to significant losses. A company may be able to reduce
dividends to shareholders, reduce payment to staff or management and
also to generate and so no to generate revenue to pay the claim.

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 Most companies take insurance to cover such damages and injuries

and therefore such losses are compensated by insurance companies.
Another justification is the concept of accident/tort prevention.

 Holding an employer financially liable for the tort of an employee

provides an effective incentive for the employer to adopt a proactive
approach to ensure safe systems of work arte in place and the
employees are controlled to the extent that it will limit the commission
of tort.
In other that the employer is held liable for the tort of his employee there are
two conditions that are required to exist.

 The worker must be considered an ‘employee’

 The tort must have been committed whilst ‘in the course of
employment’

The question of who is an employee will be dealt with under labour law in
the latter part of this book but for now consider the employee to be a worker
who is on the pay roll of the employer and is under the direct control of the
employer in respect of his day to day schedule of work.

The phrase in the course of his employment has become a subject of

numerous interpretations by the courts but basically the question that often
arises is whether the employee was doing his job at the time the wrongful
act was committed.

Let us examine the following scenarios and the decided cases:

Carelessness of the Employee

In Century Insurance Ltd v Northern Ireland Road Transport Board (1942)
a tanker driver while delivering petrol at a garage, lit a cigarette and
carelessly threw away the lighted match which caused an explosion and
considerable damage. The court held that the tanker driver’s employer was
vicariously liable for the loss. The act of lighting the cigarette was a
negligent way of doing that which he was employed to do (transferring
petrol from his tanker to the underground storage tank). He was therefore
acting in the course of his employment, even though he was doing so in an
unauthorized manner.

In Harrison v Michelin Tyre Co Ltd, (1985), H fell and was injured when S,
a fellow employee, indulged in some horseplay by pushing his truck against
the duck-board on which H was standing. The employer was held
vicariously liable for S’s negligence.

Test of Liability

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There are two main tests of vicarious liability namely:

 Was the servant doing an act of a kind not authorized by master? Or

 Is it just a wrongful performance of an authorized act?

If the answer to the first question (i.e. was the servant doing an act of a kind
not authorized by the servant) is yes, then the master is not liable. If the
answer to the second question (i.e. is it just a wrongful performance of an
authorized act) is yes, then the master is liable. Sometimes an employee
would perform improperly an act which he is authorized to perform; in such
a situation, the employer can be held vicariously liable for the acts of the
employee.

An act which is an improper way of performing what an employee is

authorized to perform should therefore be distinguished from an act which is
beyond the scope of the employee’s duties, in which case the employer is
not liable. In a Ghanaian case of Yortuhor v Brako (1989-90) an accident
occurred on the road from Bimbilla to Bawku some 152 miles from Tamale
whilst a truck was carrying goods and 22 passengers including the deceased.
The administrator of the deceased sued the owner of the vehicle and his
driver jointly and severally for the death of their son. The journey to Bawku,
carrying passengers had been unauthorized and that the 1st defendant, the
driver had been authorized to drive the truck loaded with goods without
passengers from Accra to Tamale. It was held that the master was only
liable where the servant was acting in the course of his employment. If he
was going out of his way against the master’s implied commands, when
driving on his master’s business, the master would not be liable. On the
facts, the 1st defendant was not acting in the course of his employment with
the second defendants and therefore they were not vicariously liable for his
alleged negligence.

Express prohibition
An employer may not escape liability for an act done by an employee in
defiant of an express prohibition. In other words, the employer may be held
liable for an act of an employee even though he had prohibited merely the
wrongful method of working. He can be liable to third parties injured even
if the employee was acting in breach of express instructions. In Limpus v
London General Omnibus Co. Ltd (1862) a bus driver was racing against a
driver from a rival company to get to the next bus for passengers who were
waiting there for his own company. This was contrary to the express
instructions of the company. The bus ran into the bus queue, injuring
passengers. It was held that the bus company was vicariously liable for the
passenger’s injuries. The driver was acting in the course of his employment,
even though he was not doing it in an unauthorized manner.

Similarly in Rose v Plenty (1976) a milkman was specifically told not to

allow children on his milk float to help him with deliveries. He nevertheless

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employed a 13-year-old boy as an assistant. The child was injured while

helping out on the float. It was that the employers were vicariously liable for
the child’s injuries. The employee has been doing what he was employed to
do, even though he was not supposed to be doing it with the aid of a child
assistant. Lord Scarman having considered the prohibition stated thus: There
was nothing in the prohibition which defined or limited the sphere of his
employment; the sphere of his employment remained precisely the same as
before the prohibition was brought to his notice. The sphere was as a
rounds man to go the rounds delivering milk, collecting empties and
obtaining payment. Contrary to instructions the rounds man chose to do
what he was employed to do in an improper way. But the sphere of his was
in no way affected by his express instructions.
Violent conduct by the worker
There are instances where an employee may use a degree of force to protect
his employer’s property or to keep order. If however the employee commits
an assault which has no connection with his work he will be solely liable for
his conduct. In Warren v Henleys Ltd (1948) a petrol pump attendant
mistakenly thought that a driver was trying to avoid paying for petrol. An
argument developed, the attendant lost his temper and struck the plaintiff.
The employer was not held vicariously liable. The quarrel had become
personal and no longer something which the employer could be presumed to
have authorized.

In Daniels v Whetstone Entertainments Ltd (1962) a nightclub bouncer

forcibly ejected Mr. Daniels from the premises following a disturbance.
Once outside, the bouncer assaulted him. It was held that the bouncer’s
employer was vicariously liable for the injuries caused when Daniels was
removed from the premises, but not for those sustained in the later assault.
The assault had been outside the scope of the bouncer’s employment.

Acts done outside the scope of employment

An employer will not be vicariously liable for an act of an employee which
is wholly outside the scope of his employment, particularly if the third party
should have realized this. In Twine v Bean’s Express Limited (1946) a van
driver gave lift and the passenger was killed through negligent driving. The
driver had been forbidden to give lifts, and there was a notice to this effect
on the dashboard. Moreover, the passenger was not helping the driver to do
his job, unlike the boy in Rose v Plenty. The employer was not vicariously
liable.

Employee is off on a frolic of his own

Where an employee’s act is of purely personal benefit to him at the time of
the negligent act he may be regarded, to quote from the colourful language
of the Victorian era as “off on a frolic of his own” and his employer will not
be responsible. In Hilton v Thomas Burton Ltd (1961) a demolition workers
were allowed to use the employer’s van for reasonable purposes. At 3:30pm

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one day the workers drove seven miles to a café to pass time until they
finished work at 5:30pm.
On the way back, the driver drove negligently and injured the plaintiff. The
court held that although the van had been driven with the permission of the
employer, at the time of the incident the driver was not doing what he has
been employed to do. Accordingly, the employer was not liable for the
negligent driving.

Also in Beard v London General Omnibus Co., the plaintiff, while riding a
bicycle, was run over by an omnibus belonging to the defendants. At the
material time, according to the plaintiff’s evidence, the bus was being driven
by the conductor. Apparently the bus had come to its last stop and while the
driver was out eating, the conductor drove it in order to bring it to a point
where it will begin its return journey. It was then that the bus hit the bicycle.
It was held that the employer was not vicariously liable for the conductor’s
negligence. The conductor had performed an unauthorized act and was not
therefore acting in the course of his employment.

In a Ghanaian case of Guardian Royal Exchange Assurance (Ghana) Ltd v

Appiah (1984-86) the respondent brought an action for damages for injuries
she sustained in a motor accident at Nsawam caused wholly by the negligent
driving of a servant of the appellants, who died in the accident. The
appellant contended that on the day of the accident the driver had only
limited authority to collect the vehicle from the garage in Accra, wash it and
return it to the garage.
And that since the accident occurred at Nsawam the driver must have been
on a frolic of his own.
The Court of Appeal found that the driver was left to his discretion as to
where and how the job was to be done. Consequently, the court held that
since the driver was authorized by the appellant to take the car out and wash
it, it made no difference that the appellant did not authorize and would not
have authorized the place, means and manner he decided to do it and would
be liable for any wrongful acts of the driver. Consequently, the appellants
were liable for the negligent driving of the driver.

Fraudulent and criminal acts

Where an employee commits fraud purporting to act in the course of
business the employee may be held liable. Fraud involves the persuasion of
the victim by deception, to part with his property or in some other way to
act to his own detriment and to the profit of the person practicing the fraud.
In Lloyd v Grace, Smith Co. (1912) a solicitor was held liable for the fraud
of his managing clerk, who induced a client to transfer property to him and
then dishonestly disposed of the property for his own benefit. This case was
decided upon the ground that the plaintiff was invited by the firm of
solicitors to deal with their managing clerk, who was in fact held out as
authorized to transact the plaintiff’s business on behalf of the firm. In the
words of Earl Loreburn, if the agent commits the fraud purporting to act in

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the course of business such as he was authorized, or held out as authorized,

to transact on account of his principal, then the latter may be held liable for
it.
Vicarious liability and independent contractors
The general rule is that an employer is liable for the tort of employees but
not of independent contractors as the latter may have their own insurance to
satisfy claim. It is further argued that the employer does not exercise the
same level of control over the independent contractor. In Padbury v
Holliday and Greenwood Ltd (1912) an employee of a contractor engaged to
fit windows negligently left a hammer lying on a windowsill. A gust of
wind caught the window, which as it moved, knocked the hammer which
injured the plaintiff, a passer-by in the street. The defendants were not held
liable since the tort was committed by an employee of their independent
contractor. Per Fletcher Moulton LJ: Before a superior employer could be
held liable for the negligent act of a servant of a sub-contractor it must be
shown that the work the sub-contractor was employed to do was the nature
of which, and not merely the performance of which, cast upon the superior
employer the duty of taking precautions.

There are, however, some exceptional situations where the principal and the
contractor may both be liable. The principal is not vicariously liable for the
contractor’s torts, but he will be liable if he has also committed a tort, or if
the law imposes on him a duty to ensure that care is taken if he should
delegate performance to another.

Exceptions to the general rule

Fault of the employee

Where the tort of an independent contractor was ratified or authorized by
employer he may be held liable. In such situations both the employee and
the contractor may be held liable as joint tortfeasors. In Ellis v Sheffield Gas
Consumers (1853) the defendant employed a contractor (without authority)
to excavate a trench in the street for the purpose of accessing gas pipes.
After digging the trench the contractors negligently left the rubble from the
trench in a heap on the footpath over which Ellis stumble and sustained an
injury. When the employers were sued they stated that the contractors were
at fault and as they were not employees any claim had to be made against
them. It was held that the contract with the contractors amounted to an
illegal act and the employer could not delegate its responsibility to a
contractor. Consequently the employer was liable for the injury sustained by
Ellis.

In Robinson v Beaconsfield Rural Council (1991) the Council had a

statutory duty to clear cesspools. The Council engaged a contractor to do the
work, but gave him no instructions as to disposal of the filth, and he
deposited it to the appellant’s land. The Council was held liable. Similarly,

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in Tarry v Ashton, the defendant employed an independent contractor to

repair a lamp attached to his house and overhanging the footway. As it was
not securely fastened, the lamp fell on the plaintiff, a passer-by and the
defendant was held liable, because “it was the defendant’s duty to make the
lamp reasonably safe…..the contractor has failed to do that…..therefore the
defendant has not done his duty and is liable to the plaintiff for the
consequences”.

Non-delegable duties
Where strict liability is imposed by law the person who bears the
responsibility cannot escape liability by engaging an independent contractor
to do the job. Strict liability may arise at common law, as under the rule in
Rylands v Fletcher (1866) or it may be imposed by legislation, for example
some of the duties arising from labour legislation. The rule in Rylands v
Fletcher takes its name from the case in which it was first formulated. It
provides that, if a person brings on his land and keeps there something
likely to do danger if it escape, he keeps it there at his peril and will be
strictly liable for any damage which follows from an escape, even if there
has been no negligence.

Where a contractor is engaged to do ultra-hazardous acts

Where a contractor is engaged to do ultra-hazardous acts which by their
very nature involve special danger to others, the employer is liable for any
resultant accident. In Summer v William Henderson & Sons Ltd (1964) fire
was caused in a departmental store by the defective of an electric cable, and
11 people were killed. The respondents were held liable for the negligence
of the contractors who installed them.

Sample Questions
 Explain what is meant by the term “duty of care” in the tort of
negligence

 Emelia recently passed his diving test and decided to drive to the
Silver Bird Cinema at the Accra Mall. On reaching the junction to the
Mall she negligently fails to see a car being driven by Sarah and
crashes into it. Unfortunately Sarah was not wearing a seatbelt at the
time of the accident and was badly injured. Alex, Sarah’s husband on
hearing of the accident rushes to the scene of the accident and was so
shocked at seeing Sarah’s injuries. Shortly afterwards Alex develops
psychiatric illness as a result.
 Discuss the essential ingredients of a negligence action and consider
the legal liability of Emelia in the Law of Torts.

 With your knowledge in the torts of trespass, private nuisance and the
rule in Rylands v Fletcher explain the extent to which occupiers of
land should ensure that the activities which take place on their

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property do not interfere with the use and enjoyment of neighboring

properties.

 The Apostolic Christian Church of Ghana worship in one of the school

classroom in a residential area at Tema. They worship every
Wednesday night between 8 and 11.30 pm. Joyce, who lives some few
metres away from the place of worship is kept awake by the excessive
noise of drums and singing from the church and as a result she is kept
awake between these hours. Advise Joyce.

 Yaw Manu is a driver for the ABC Logistics Company Ltd of Tema.
On 15th of November, 2015 he was instructed to deliver some quantity
of iron rods to a customer in Kumasi. He was to return immediately
upon delivery for another consignment to Takoradi. After delivering
the goods in Kumasi he was contracted by Kwame Nsiah to cart some
quantity of cement to Sunyani for Gh¢2,000.00. Yaw Manu decided to
do a quick one to Sunyani at the blind side of his employers before
returning to Tema. On his way to Sunyani he was involved in an
accident through his negligent driving with a taxi cab resulting in
complete damage to the cab while the taxi cab driver sustained serious
injuries.
 With your knowledge in the law of Vicarious Liability explain the
liability of ABC Logistics Company Ltd if any. Make reference to
decided cases.

 Discuss the rational for behind the doctrine of Vicarious Liability.

 The general rule is that an employer is liable for the tort of employees
but not of independent contractors. Discuss

 What are the exceptions to the general rule in question 7

Summary
 Public nuisance – this include obstruction of public highway
 Private nuisance – this is the unlawful interference with someone’s use
or enjoyment of his land.
a.
 Duration and timing – this is where the interference complained of is
continuous in nature and taking into account the timing of the
interference
 Sensitivity of the plaintiff – the rule is that nuisance protect only the
ordinary and reasonable use of the [plaintiff’s land.
 Malice – this is where the defendant’s motive is tainted with malice or
antagonism toward the plaintiff.

 The defences in nuisance are

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 Defence of prescription
 Defence of statutory Authority

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