By Samson Dada
Vicarious liability is simply where someone is held responsible for the actions of another person despite the fact that he is not a party to it and has no fault as regards the incident.
The Nigerian Labour Laws and the Courts has adhered to this principle countlessly in employer-employee relationships, thereby making the employer liable for not just the tortuous act he ordered or ratified but also torts which were committed by the employee in the course of his employment, irrespective of whether the employer ratified it, ordered it or expressly prohibited it. A number of persons, at first thought, finds this rule to be unreasonable as it is perceived as a rule that protects the interest of third parties to the disadvantage of the employer.
However, this article shall answer the questions as to the rationale behind this rule, the limitations to the rule if any and whether or not it applies to the relationship between an employer and an independent contractor.
In addition, this article shall also address whether or not an employer can be held vicariously liable for the crimes of an employee and thereafter conclude by stating possible defences available to employers involved in an action for vicarious liability.
CAN AN EMPLOYER BE LIABLE FOR THE INTENTIONAL AND WRONGFUL CONDUCT OF HIS EMPLOYEES?
The answer is in the affirmative. Vicarious liability arises when a principal is answerable for the act of an agent in the course of its business. The concept of vicarious liability is quite uncommon in the context of employment relationships. Employers can be liable for the wrongful act of an employee if it is carried out in the course of an employee’s employment. Therefore, generally the employer is responsible for acts of the employee.
There are plethora of cases dealing with the question of whether an employer may be liable to a third party arising from the conduct of its employees. In the case of Ajani Popoola V Pan African Gas Distributors & Ors1 A driver and another employee who engaged in distribution of Gas cylinders in Ibadan, parked the distribution van outside the claimant’s house without his consent. An Explosion occurred in the van and it damaged the house and property of the plaintiffs, the Supreme Court held the company to be vicariously liable by applying the ‘Res Ipsa Loquitor’ rule pleaded by the claimant, which means ‘the fact speaks for itself’.
WHAT IS THE RATIONALE FOR THIS RULE?
In pursuit of Justice, victims of tortuous conduct seek to be compensated. Hence, employers are always considered as deluxe beings with more capacity to indemnify the victims compared to the employee himself. Also, the employee is presumed to be an agent of the employer and where he commits a tort while acting in the course of his employment, He is seen to be acting on his employers’ behalf whether the employer enjoys the activity or not.
IS THE PRINCIPLE OF VICARIOUS LIABILITY APPLICABLE IN A RELATIONSHIP BETWEEN AN EMPLOYER AND AN INDEPENDENT CONTRACTOR?
The answer is in the negative. An independent contractor is one who exercises control over the way and manner he does his job. Thus an employer is not liable for the torts of the independent contractor.
It is clear that while an employee is employed under a ‘contract of service’, the independent contractor is employed under a ‘contract for services’. Perhaps, it cannot be unequivocally ascertained that the employer is wealthier than the independent contractor.
ARE THERE LIMITATIONS TO THIS RULE?
In the case of Canadian pacific Railway Co. Ltd V Lockhart2 the court held inter alia that ‘The question whether a master is liable for injuries caused by his servant’s (employee) negligence depends upon whether the servant at the time of the negligence was acting in the course of his employment. Therefore, generally anything contrary to this, the employee will bear liability independently.
Thus every employer has to bear in mind 2 (two) questions to determine his liability or otherwise. Firstly, is he an employee? Secondly, Was he (the employee) acting in the course of his employment when the relevant tort was committed.
In the case of Beard v London General Omnibus co 3 the court held that the employers were not liable for the damages caused by a bus conductor who drove a bus in the absence of the driver, as he was not employed to do so. Despite his good intentions, his acts were not within his scope of employment, neither was he authorized by the driver to do so.
Moreover, The Onus of proof is on the employer to proof that the employee was on the frolic of his own at the time of the tort.4
It is however worthy to note that If the tort is committed during working hours or within a reasonable period within, before or after working hours, the court may likely hold the employer liable. Also, the employer would be liable for the acts of his employee even if they happen to be an unauthorized way of doing what he was employed to do.
CAN AN EMPLOYER BE VICARIOUSLY LIABLE FOR THE CRIMES OF HIS EMPLOYEES?
The answer is not far fetched. It is trite that a person cannot be held liable for a crime which he did not commit. Therefore, Employers will not be liable for the crimes of their employees, unless the employee was aided, procured and counseled by the employer to commit the crime, or the crime was committed under duress. Albeit vicarious liability is a tortuous wrong, it has gradually evolved to accommodate crimes committed by employees, making the employers liable for them. Hence, depending on the circumstances of the case, the employer may be liable if the crime was committed in furtherance of the employers business.
One thing Vitcims/Claimants must not fail to remember is that Vicarious Liability is like a secondary liability and it is only assumed when a primary liability is established. Hence for the employer to be liable, the negligence of the employee committing the tort must first be established. Then, the question of who bears the liability comes to play as ‘one cannot place something on nothing and expect it to stand’.
On the other hand, Employers must do themselves a favour of having a good understanding of this Common Law rule of vicarious liability because it has come to stay whether employers feel it is fair or not and today the rule is deeply imbedded in our legal system. In addition, the possible defences which can be raised by employers to escape liability includes stating that he (the employee) was on the frolic of his own and out of scope of employment or to plead the publication of a disclaimer stating the act was done by an independent contractor for whom he is not liable for.
Conclusively, My advise for Employers, in other to effectively manage this risk, is that they should always demand for a guarantor’s indemnity or fidelity Guarantee form from the employee which will cover such unauthorized vicarious conducts asides the regular employment contract. The Employer can also reimburse himself for his loss by charging it to the employees’ pension.
1 (1972) 1All N.L.R (Pt.2) 395
2 (1942) 2 All ER 464
3 (1900) 2Q B 530 C.A
4 WHATMAN V PEARSON
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