Vicarious liability

Definition:

A rule of responsibility which renders the D liable for the torts committed by another. There must be an
employment relationship.
Justification:
1. Employer to be held liable for employing a negligent employee, for failure to control the employee.
2. Since the employer derives benefit from the employees services, he should be made liable for any wrongful
conduct of the employee in the performance of his work.
3. Deep pocket concept- master is in the better financial standing to compensate 3rd party.
Elements

Explanation

First: Employee
committed a
wrongful or
tortious act

A tort e.g trespass,

negligence,
nuisance has been
committed by
employee

Second R:
Existence of an
employeremployee
relationship

Distinction between
a contract of service
(employee)- a
special relationship
exist and a contract
for service
(independent
contractor)
Contract of service
(employee)- The
person works as part

Case

full time lecturer

Held

of the organisation
and his work forms
an integral part of
that organisations.
Contract for service
(independent
contractor)-Even
though he is also
done for the
organisation, but it
is only ancillary and
is external factor to
the organisation.
There are 3 tests
to determine this:
Control Test
Difficulty to apply:
lack of control of
employers over the
method in which
the work is to be
done.

Organisation
test

Short v J&W
Handerson Ltd.
Lord Thankerton:
4 factors to be
considered:
i)
Employer has
a power to select
employee
ii)
Determine
salary
iii)
Control
iv)
Power to
terminate
Contract of servicecaptain of a ship,

independent
contractor

Collins v
Hertfordshire
County Council

Contract of
service existed
if the employer
had the power
to instruct the
employee and
to control the
method in
which the work
has to be done.

Mat Jusoh bin

Daud v Syarikat

Held: Since
wages and no

Difficulty in
apply: not being
able to present a
clear and candid
answer in many
situations.

driver, journalist.
Works as part of the
organisation and his
work forms an
integral part of that
organization
Contract for serviceships pilot, taxi
driver, contributor to
newspaper. Even
though the work is
done for the
organization, it is
not integrated into it
but is only accessory
to it.

Multiple testcommon sense

approach

jaya Seberang
Takir
Fact: P worked as
sawyer at Ds
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

Ready Mixed
Concrete Ltd V
Minister of
Pensions and
National Insurance

of logs to be
sawn were
determinable
by D, the Ps
works was an
integral part of
Ds business
and P was
therefore Ds
employee. D
must take
reasonable
care to avoid
from
unneccesary
risk. D was
found
vicariously
liable for not
providing a
proper and
effective
system at work.
3 factors need
to be fulfilled
before a
contract of
service is
established:

1.Employee or
servant agrees
that he will use
his own
expertise and
the employer
pays him either
in monetary
form or in any
other form of
renumeration.
2.Employee or
servant agrees,
whether
impliedly or
expressly , that
he will be
bound by the
employers
instruction,
which is
reflective of
employeremployee
relationship.
3.All other
conditions in
the agreement
are consistent
with nature of

the job being a

contract of
service.
Malaysia court
favour control test

Generally no
difficulty to
differentiate them,
except in this two
conditions:
Hospital Staf

Workers have been

held to be nonemployees on the
basis that the D was
not responsible for
payment of wages
and did not have
control over the
manner in which the
work is performed

Bata Shoe v EPF

Board

Cassidy v Ministry
Of Health (housesurgeon, assistant
medical officer)
Roe v Ministry of
health
Tan Siew Eng v Dr
Jagjit Singh

If negligence
occur in a hosp,
and the
tortfeasor
cannot be
identified, the
hosp will be
vicariously
liable.
In Roe, hosp
will still be
liable even

Lending a
worker

3rd R: Employee
acted in the course
of his/her
employment when
coming to
committing tort

The employer is still

liable unless he has
divested himself of
all possession and
control.
Conduct of the
employee :
Is
expressly/impliedly
allowed by employer
Is authorised
but done in
unauthorised
manner
Is ought or
should be done in
the course of doing
the job.
** Is a question of
fact
Thus it would be fair
and just to hold the
employer vicariously
liable for the tort
committed by the

Mersey Docks &

Harbour Board v
Coggins & Griffiths

though
negligence is
committed by a
part time
employee.
Permanent
employer and
therefore
vicariously
liable.

employee.
Circumstances
fall within the
course of
employment
1.
Carelessness of
worker

2.
Unauthorised
modeMistake of
employee

Commission of
careless act as long
as not on a frolic of
his own
(employees act is
intended to benefit
himself alone)

Court will hold the

employer liable.
Mistake will be
construed as doing
sth authorised in an
unauthorised

Century Worker
Insurance Co Ltd v
Northern Ireland
Road Transport
Board
Fact: Ds worker
who was driving
an oil tanker,
stopped at Ps
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.
Bayley v
Manchestor,
Sheffield and
Lincolnshire

D liable for
workers
negligent act.
Because it was
done in the
course of his
employment
even though
the actual act
of smoking did
not benefit the
employer

D was held
liable when
their porter
pulled out a
passenger from
a train as the

manner.

porter
mistakenly
thought the
train was
heading
elsewhere.

3.
Protecting
employers
property
4.
Employee
delegating his
responsibility
5.
Employee
acting for his
benefit

Must not excessivedegree and fact

Poland v Parr &

Sons

Responsibility must
not be delegated.

Illkiw v Samuels- a
negligences
conduct
Zakaria b Che Soh
v Chooi Kum
Loong
Fact: P was a
driver with a
research institute
in Ipoh. After
sending the
director home, he
drove home for
lunch and accident
occurred on the
way.

6.

Conduct was

Acting

Test: whether the

conduct of the
worker is
reasonable, is that it
is not too remote
from comtemplation
of both parties as to
take the act out of
the employment. If
driver had driven
200 miles for lunch,
employer would not
be held vicariously
liable.

Case: Conway v

State govt
liable. Even
though the
purpose of that
trip did not
have anything
to do with his
employer, but
it was sth that
was expected
to be done in
the course of
employment
and the
accident
occurred within
the course of
employment.
In action

against employers
express prohibition

7.
Employee
acting on frolic of
his own

prohibited but
related to the mode
of performing his
job- within the
course of
employment.

George Winmpey
and Co
Fact: the driver of
a lorry acting
against clear oral
instruction of his
employers, took a
passenger on to
the lorry. There
was a notice in the
lorry indicating
that the driver was
under strict orders
not to carry
passengers other
than employee of
the company and
anyone driving on
the vehicles did so
at it his own risk.
The passenger
was subsequently
injured by the
negligence driving
of the lorry driver.

Roshairee Abd
Wahab v Mejar
Mustaffa Omar

against the
employer, the
court held that
the passenger
to be a
trespasser and
therefore no
duty was owed
to him by the
employer.

8.
Fraud of
employee

Worker acting on the

apparent/ostensible
authority

9.
Theft of
employees
10.
Sexual
abuse by
employee
11.
Breach of
statutory duty
Liability in Respect
of Independent
Contractor

Employer not
vicariously liable,
except in:

Case: Lloyd v
Grace

Morris v CW Martin
& Sons Ltd
Lister v Hesley
Hall
Majrowski v Guys
and St. Thomas
NHS Trust
A person who
although working for
another person, he
is not controlled by
the other person or
consuct relating to
the performance of
that work.
A contract for
service.
Employer
authorising the
commission of torta person who
authorises another
to commit a tort is
deemed to have
committed the tort

himself.
Negligence of the
employer
Non-delegable
duties

DBKL v Ong Kok

Peng
Lee Kei v Gui See