Muhammad Syahmi Bin Ashran

2012402634

LWP02A

Question 2

Describe the concept of vicarious liability and explain the rationale for this concept. Illustrate your answer with 2 decided cases.

Imagine a situation where one person would be liable for the torts of another, even though he (the person liable) is not a party to the tort or he himself did not commit the tort in question. For example, A is liable to C for damage or injury suffered by C due to the tort committed by B.

This situation occurs when there are special relationship between A and B which can be Master and servant, Employer and employee, Principal and agent or Parents and child.

The relationship of master and servant exist when one person employs another to do work for him on the terms that the servant is subject to control of his employer as to the manner in which the work is to be done. The test is one of control. Does the master control, first, The work to be done and, second, The way which the work is done. Common examples of servants include chauffeurs, domestic servant, clerks and laborers. These people are employed under ‘contract of service’.

This is different from independent contractor. An independent contractor is under control of his employer on what he must do but the employer cannot control the actual manner in which he does work. He is free to set his own method.

Examples of independent contractors are builder who contract to build a house for a client, plumbers, electricians, carpenters, and the like who may be called in by a house-holder to effect a repair in the house. Such person is not servant of the house-holder. Similarly, a taxi driver is an independent contractor while a chauffeur is a servant. Independent contractor are said to work under a ‘contract for service’. While, the term ‘master’ or ‘employer’ can be applied to an individual or a body corporate such as a company or local authority.

There are a few requirements of vicarious liability in tort, which is, First, A wrongful or tortious act Second, There is a special relationship recognized by the law between the person alleged to be vicariously liable and the tortfeasor and lastly, The tort is committed within the course employment

The general rule regarding “Master and servant” relationship is that master is vicariously liable for the torts the servant committed during the course of employment, whether the master authorized it or not. The liability lies in the respect of, first, It is either expressly or impliedly allowed by the employer. Second, When the employee does something that is authorized in an unauthorized manner. Lastly, The employee does something that is closely connected to what he is employed to do, in the course of doing the job.

In the ‘course of employment’. The employer will not be liable for a tort committed in the course of employment if the servant was performing act solely for his own purposes. For example, let us suppose that a servant (Zul) is instructed to drive his master’s car from Shah Alam to KL but instead of proceeding directly to destination, Zul goes off to Putrajaya on a frolic of his own. The master will not be liable for ant tort which Zul may commit while deviating from the route. If the deviation from the authorized route is slight or unavoidable, the master remain liable.

Under the justification of vicarious liability; an employer may be jointly and individually liable with his employee for torts committed by the latter. The rationale of this concept are as follows; First, The master must have been negligent in,Employing negligent servant and Failing to control his servant.

Second rationale is, since master benefits from the employee’s work, he should also bear the responsibility for tortious act caused by his employee. Third rationale, The master have greater fund to compensate the third party. Lastly, The employer usually is not an individual but an enterprise, for that reason, they can spread the loss. Furthermore, they also have insurance coverage.

It can be seen in the decided cases of;

Limpus v. London General Omnibus Co. (1862)

A bus driver racing to a stop to collect passengers deliberately obstructed the driver of a bus of a rival company, overturning the latter’s vehicle. The bus driver had been given strict instruction against obstructing other buses.

Held:

That defendants were liable. The driver was acting within the course of his employment at that time. It was immaterial whether his act is forbidden

Next case is,

Beard v. London General Omnibus Co. (1900)

A bus conductor drove a bus in London and negligently collided with plaintiff. The conductor was nt authorised to drive the bus.

Held:

That the servant was not acting within the scope of employment. Accordingly the claim against the employer failed.

A tort may be committed by two persons acting together i.e. jointly. For example A holds one end of a log while B holds the other, and together they heave through a window, the law holds that they both liable. This means they are joint tortfeasors.

The employer and employee together may be sued as joint tortfeasors. If the employee is held vicariously liable, he may seek indemnity for his cost from his employee. For example, A were a servant of B and damages were awarded against A (say for RM 1000) and if A were merely carrying out the instruction of the employer, A would be entitled to be indemnified by action against B for the amount of RM 1000 which A has been compelled to pay. An indemnity is may arise out of a contractual agreement as well as in the relationship of master and servant.

It can be seen in the case of,

Lister v. Ramford Ice and Cold Storage Co. Ltd. (1957)

Lister, a lorry driver employed by the company reversed his lorry negligently and knocked down his father who was also employed by the company. The father recovered damages from the company which was held for vicariously liable for the tort of its servant, Lister. The insurers for the company paid the amount and thereupon sued Lister, in the name of the company, for an indemnity.