VICARIOUS LIABILITY

VICARIOUS

Means where a person is liable for the act or omission of another with whom he stands in some special relationship.

For example, master and servant or employer and employee.

A (master), B (servant), C (guest). A will be liable for the tortuous act done by B towards C.

REASONS FOR VICARIOUS LIABILITY

Master is held to be liable for employing a negligent employee; for failure to control the employee.

Since the master gain benefit from the employee’s work, he should be made liable for any tortious conduct of the employee in the performance of his work.

Lastly, because the master is in the better financial standing to compensate the 3rd party

REQUIREMENTS OF VL

Three requirements must be satisfied in order for VL to arise

1)Wrongful or tortious act,2)There is a special relationship that is

recognised by the law between the person alleged to be vicariously liable and the torfeasor, and

3)The tort is committed within the course of employment.

1) WRONGFUL OR TORTIOUS ACT

The court will decide whether a tort has been committed. Once a tort is established, the nature of the relationship between the D and the tortfeasor will be examined.

2)SPECIAL RELATIONSHIP

There must be a special relationship between A and B ie usually between employee and employer.

Whether a person is a servant or employee or otherwise is dependent on the determination of whther the relationship is one of a contract of service or a contract for service.

A special relationship exist in the contract of service.

Contract of serviceContract of service Contract for serviceContract for service

The person works as part of the organisation and his work forms an integral part of that organisations

E.g Full-time lecturer

Eventhough the work is also done for the organisation, but it is only ancillary and is and external factor to the organisation

E.g Independent contractor

DIFFERENCE

Mat Jusoh b Daud v Sykt Jaya Seberang Takir Sdn Bhd

P worked as a sawyer at D’s sawmill. P sustained injuries while carrying a log with another co-worker. Consequently, D refused his further employment.

D contend that P was not their employee but an employee of X who was the contractor of D.

Held : since wages and the number of logs to be sawn were determinable by the D, the P’s work was an integral part of the D’s business and P was therefore D’s employee. D must take reasonable care to avoid from unnecessary risk. D was found vicariously liable for not providing a proper and effective system of work.

3) The tort must occur within the course of employment

An employer will only be vicariously liable for the torts of his employee if the tort occurs in the course of employment

WITHIN THE COURSE OF EMPLOYMENT means if :FIRSTLY, it is either expressly or impliedly allowed

by the employer. SECONDLY, when the employees does something

that is authorised in an unauthorised manner. THIRDLY, the employee does something that ought

or should be done in the course of doing the job** a question of fact.

-Carelessness of worker

The commission of a careless act may still be within the course of employment provided the workers is not “on a frolic of his own”. (employee’s act is intended to benefit himself alone)

CENTURY INSURANCE CO LTD V NORTHERN IRELAND ROAD TRANSPORT

BOARD

D’s worker who was driving an oil tanker, stopped at P’s petrol station to transfer petrol from lorry to underground tank. He lit up a cigarette and threw the burning match on the floor. Explosion occurs and P’ property destroyed.

Court held: D liable for his worker’s negligent act. Because it was done in the course of his employment, even though the actual act of smoking did not benefit the employer.

-Mistake of worker

If the worker commits a mistake in the course of performing his job, the court will hold the employer liable.

The mistake will be construed as doing something authorised in an unauthorised manner. In Bayley v Manchester, sheffield and Linclnshire Rly, D were held liable when their porter pulled out a passenger from a train as the porter (mistakenly) thought the train was heading elsewhere.

- Worker deliberately commits a wrong

If the worker does act for his own benefit, this does not necessarily mean that he has acted outside the scope of his employment.

In Zakaria b Che Soh v Chooi Kum Loong & Anor, P was a driver with a reseacrh institute in Ipoh. After sending the director home he drove home for lunch and an accident occurred on the way.

Court held: the state government liable. Even though the purpose of that trip did not have anything to do with his employer, but it was something that was expected to be done in the course of employement and the accident occurred within the course of employment.

TEST : whether the conduct of the worker is reasonable; in that it is not too remote from the comtemplation of both parties as to take the act out of the employment.

IF, the driver had driven 200 miles for lunch, the employer would not be viacariously liable.

LIABILITY IN RESPECT OF INDEPENDENT CONTRACTORS

An independent contractor is a person who although working for another person, is NOT controlled by the other person in the method or conduct relating to the performance of that work.

Contract FOR service.

An employer will be liable for the acts of his independent contractor ONLY IF the employer is deemed to have committed a tort in three situations:

1)Employer authorising the commission of tort2)Negligence of the employer

1) Employer authorising the tort.

A person who authorises another to commit a tort is deemed to have committed the tort himself.

E.g A made a contract with B to cut the trees at his house and ignore the mess that had trespassed at C’s place.

2) Negligence of the employer

General rule : employer not liable.But, may liable if the negligence is caused by

the incompetence of his independent contractors, which will construed his personal negligence for failing to employ competant and skilled independent contractors.

Lee Kei v Gui See, independent contractor set fire to some unwanted branches on D’s land and left unattended that spread n destroyed P’s land. HELD:D must take all reasonable precaution to prevent the fire from spreading.

EXAMPLE OF EXAM QUESTIONS

With reference to the case law, explain legal principles of vicarious liability in the Malaysian construction industry and discuss the reasons for their application.(25 marks)

Comment on the rules on vicarious liability and discuss the rules for its application.(25 marks)

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