Written by Yusto Habiye, Consultant
It is a well-established principle of law both socially and in the business community that, the injured party can sue the wrongdoer (tortfeasor) to seek damages to compensate for the harm or loss to him, therefore loss or harm suffered results in legal liability for the person who commits the tortious act, the legal principle does not end there, but it extends remedy to redress the harm or loss from an employer of the wrongdoer or tortfeasor if at all the wrong committed whilst the wrongdoer was in the course of employment.
A situation like this where the employer is held liable and responsible for the acts of the employee against the loss or harm caused to a third party is legally referred to as Vicarious Liability, this liability usually comes into play when an employee acted in a negligent manner for which his employer will also be held liable, taking an example of a manufacturing company which hires a driver to deliver products to its customers, and while driving to customers the driver negligently causes an accident and injures motorists, passengers, and pedestrians, the fact that driver was engaged by the duties according to his employment while causing an accident, the manufacturing company can be held liable.
In the prominent case of Young v Edward Box & Co, Ltd [1951] 1 TLR 789 Lord Justice Denning examined briefly the legal position of the servant or agent where the doctrine of vicarious liability is sought to be brought into play and at page 793 He said: “In every case where it is sought to make a master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant’s liability.”
Consequently, in order to have an action against the employer, the first element that will be examined is Whether the tort/Civil wrong has been committed: where the act itself is that of negligently or carelessly and there is a legal relationship between persons and a tort is committed by one party to the relationship, it is possible that the law of tort will impose vicarious liability. The other Element is: The Existence of the employment relationship: This liability is on the basis of the doctrine of “respondent superior” (responsibility must be that of the superior), and the Latin maxim of letting the superior or the master respond for the wrong that was done, “qui facit per allium facit per se” (he who does anything by another does it by himself) so, employers are liable for the damages caused by employees, for they work not for their benefit but for the employers benefit.
A master or employer is vicariously liable for the torts/civil wrong of his servant committed in the course of his employment however it is important to note that, a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be done so if it is either; one, a wrongful act authorized by his master or, two a wrongful and unauthorized mode of doing some act authorized by the master. If an employee is not acting within the course of employment but is doing something for himself the master is not liable. in Bartonshill Coal Co. v. McGuire, (1858) 3 Macq 300 Lord Chelmsford LC observed that “every act which is done by a servant in the course of his duty is regarded as done under his master’s orders and consequently is the same as if it were his master’s own act”.
However, the court will not hold the master liable if it is shown that the servant committed tort while on the frolic of his own: that is, he did the wrong when doing his own business. This position has well illustrated by the case of Macheme Kaskazini Corporation Ltd. (LAMBO ESTATE) v. Aikaeli Mbowe 1984 TLR 70 (CA) where The Court of Appeal held that; “(i) It is a question of fact whether the unauthorised act by a servant is within, or outside the scope of his employment; (ii) Simon was not engaged in his employer’s business at the material time; the visit to his relative had absolutely no connection with his
employment, but was an independent act outside the scope of his employment; his driving the vehicle was an unauthorized act outside the scope of his employment.”
Also, the master is not liable for wrongs committed by his/her servant that was in a detour, that is, when he did not follow the exact route instructed by the master, as in the case of Ssembati v. Uganda Enterprises co Ltd & another (1970) ULR 561 (CA).
Likewise in the situation of Prohibition (where a servant commits an act prohibited by the master), an employer may not be liable for the act done by his employee.
The legal principle or doctrine of vicarious liability appears to be important as it helps third parties get their compensation against harms or losses caused to them by a negligent wrongdoer, from employers of wrongdoers who are required by the law to shoulder their employee’s liabilities. Employers, therefore, are warned to ensure they put in place and examine the implementation of best operating standard procedures to be followed by their employees so as not to fall prey to this legal principle.
Yusto Habiye is the Consultant – at Linex Attorneys