The Doctrine of Vicarious Liability

-a person who is not personally at fault may be held liable for another’s wrongful act,
simply because of the relationship between them, e.g. employer and employee.1

“It is the modern that the doctrine of vicarious liability is founded upon social policy
rather than on fault.” Per Lord Pearce Imperial Chemical Industries Ltd. v. Shatwell
[1965] AC 656.

It is to ensure that liability for tortuous acts falls on the defendant who is capable of
paying any damages awarded, i.e. the servant is pursuing the economic interest of the
master, thus the master should be held vicariously liable. View of Lord Brougham
Duncan v. Finlater (1839) 7 ER 934.

Deep Pocket Theory

-the person that has the financial capability to bear the losses should pay.
-the master is better able to manage the risk than the servant.

Note: the employer is liable only for those torts committed during the course of the
servant’s employment. The master may not be liable in all circumstances, as there must
be a special relationship between master and servant.

3 elements has to be established before the master is held liable:

1. –the person who committed the tort must be a servant of the master;
2. –a tort was indeed committed by the servant; (Young v. Box per Denning LJ)
3. –the tort was committed during the course of employment.

Distinction between servants and independent contractors

Servant Independent Contractor

-a person that has a contract of service -a person that has contract for services
(a master can order what is to be done, and (a master can only order or require what is to
how it shall be done) be done) Collins v. Hertfordshire CC [1947] KB 598

-a person employed to do work subject -a person who is his own master, and
to the control and directions of his exercises his own discretion as to the mode,
employer and time of his work

-a person engaged to obey orders from -a person who is bound by his contract, but
time to time not by his employer’s orders

Whilst an employer is liable for the torts of his servants, he is generally not liable for
those of his independent contractors. Quarman v. Burnett [1835-42] All ER Rep 250.
Various tests suggested for distinction between a servant and an independent contractor:
1
Vicarious Liability can be compared to the Christian faith. Christ died for our sins not for his own, thus in
vicarious liability a person may be called upon to answer for the fault of another, i.e. may be liable for the
tort of another.
(1) The Control Test- originated from the Feudal System-master liable for
servant
-an employee is under the control of his employer as to what he is to do, and
how he is to do it;
-an independent contractor is under the control of his employer only as to
what he is to do.
-an employer hires and fires his employee and pays his wages;
-an independent contractor is paid the agreed fee for his services.

Case authorities:

“A servant is a person subject to the command of his master as to the manner

in which he should do his work.” Per judgment of Bramwell J Yewens v.
Noakes 1880 6 QB 530

“The contract of service is one by which the employer cannot only order or
require what is to be done, but how it should be done.” Per Hilbery J
Collins v. Hertfordshire CC [1947] KB 598-
A hospital had in its employ, a student who was employed full-time in the
capacity of a resident junior house surgeon, and that of a surgeon in good
standing on the medical register, who worked two days per week for a fixed
number of hours. Both persons were on the hospital pay list. The surgeon
was preparing to perform a jaw operation on the plaintiff’s husband, and
instructed the junior house surgeon, over the phone, to collect certain
materials, one being that of procaine. The junior house surgeon misheard the
item as being cocaine. During the operation, a lethal dosage of cocaine was
injected into the husband which resulted in his death. The plaintiff brought an
action against the hospital authority.
Held: On the issue of vicarious liability of the hospital authority, they were
held responsible for the acts of the junior house surgeon, but not for those of
the visiting surgeon, since in the case of the junior surgeon they had the power
to direct her on what to do and how to do it, but in the case of the surgeon they
did not have that power.

Performing Right Society v. Mitchell [1924] 1 KB 762- In this case the tests
for deciding whether a person is a servant or an independent contractor was
considered. It was found that the band, in this case, were the defendant’s
servants acting in the course of their employment, and although the defendants
prohibited copyright infringement, that did not absolve them from
responsibility of the band playing the plaintiff’s music without permission,
thus the plaintiff’s claim succeeded.

Basis of Control Test –a person being able to give instruction on the manner of
what is to be done and how it should be done.
Inadequacy of the ‘Control’ Test.

Hillyer v. The Governors of St. Bartholomew’s Hospital 1909 2 KB 820- In this case the
application of the ‘control’ test did not work.
The plaintiff brought an action against the governors of a hospital for damages for
injuries alleged to have been caused to him during an operation by the negligence of
some member of the hospital staff.
Held: The action was not maintainable. The only duty undertaken by the governors of a
public hospital towards a patient is to use due care and skill in selecting their medical
staff. The relationship of master and servant does not exist between governors and the
physicians and surgeons who give their services, and the nurses and other attendants at an
operation cease for the time being to be the servants of the governors, because at that
time period they take their orders from the operating surgeon alone and not the hospital
authorities.

NB. After Hillyer the position of the law changed, see cases below.

Cassidy v. Ministry of Health [1951] 2 KB 343- In this case, the plaintiff entered a
hospital for an operation on his left concerning two fingers. While undergoing the
operation he was under the care of the surgeon who performed the operation and other
medical officers and nursing staff of the hospital, all of whom were employed under
contracts of service. At the end of the operation his hand had been rendered useless. The
trial judge dismissed his action for damages for negligent treatment which he brought
against the hospital on the ground that he had failed to prove any negligence.
Held On Appeal: In the circumstances, the doctrine of res ipsa loquitur applied, and thus
the onus lay on the hospital authority to prove that there had been no negligence on its
part or on the part of anyone for whose acts or omissions it was liable, and that the
hospital authority had not discharged that onus.
Per Lord Denning: “The hospital authority is liable for the negligence of professional
men employed by the authority under a contracts of services as well as contracts for
services. (inadequacy of the control test) The authority owes a duty to give proper
treatment, and though it may delegate the performance of that duty to those who are not
its servants, it remains liable if that duty be inadequately performed by its delegates.

Morren v. Swinton [1965] 1 WLR 576- per Lord Parker CJ, “Clearly superintendence and
control cannot be the decisive test when one is dealing with a professional man, or a man
of some particular skill and experience.”

Koey v. Minister of Health-In this case the scope of responsibility was widened, e.g. to
part-time, full-time staff to make the master liable.

In a modern society the control test is not workable and inadequate. In a primitive
society it was sufficient, but in a modern society you cannot control skilled persons, e.g. a
doctor. In a modern society the doctor would be liable.
(2) The ‘Organization/Business’ Test- a useful alternative to the control test,
and one more in keeping with the realities of modern business.

Stevenson, Jordan & Harrison v. MacDonald [1952] 1 TLR 101, per Denning
LJ-“ A man is employed as part of a business and work is done as an integral
part of a business.”
In this case, Denning LJ is explaining that under a contract of service a man is
employed as part of the business, whereas, under a contract for service, his
work, although done for the business, is not integrated into it, but is only
accessory to it.

The difficulty of Denning LJ test was that it did not cover part-time workers.
This difficulty was brought out in the case of Ready Mixed Concrete (SE) Ltd.
v. Minister of Pensions [1968] 2 QB 497 by MacKenna J, in which he
suggested a third test.

(3) The Mixed/Composite Test-3 conditions to be fulfilled in the case of

contract of service.

The three conditions suggested by MacKenna J in Ready Mixed Concrete (SE)

Ltd. v. Minister of Pensions [1968] 2 QB 497 for the existence of a contract of
service or employment are:

(1) the servant agrees to provide his work and skill to the master in return for
a wage or other remuneration;
(2) he agrees expressly or impliedly, that he will be subject to the master’s
control;
(3) the other terms of the contract are consistent with there being a contract of
employment.

In applying the test, the courts do not limit themselves to the three listed
factors; they consider a wide range of factors including:
(a) the degree of control over the servant’s work;
(b) his connection with the business;
(c) the terms of the agreement between the parties; the nature and
regularity of the work;
(d) the method of payment of wages.

In the case of Harris v. Hall (1997) the Jamaican Court of Appeal adopted the
guidelines suggested by Cooke J in Market Investigations Ltd. v. Minister of
Social Security [1968] 3 AER 732, to the effect that, “Control will no doubt
always have to be considered, although it can no longer be regarded as a
determining factor. Factors which may be of importance are:
-whether the man performing the services provides his own equipment,
-whether he hires his own helpers,
-what degree of financial risk he takes, etc…”
Lending/Borrowed Servants
-where the general employer agrees to lend his employee to B for a particular job, and
during the course of it the employee commits a tort, the general employer will remain
liable, unless he can prove that at the time the tort was committed, he had temporarily
divested himself of all control over the employee.

Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd [1947] AC 1-
In this case, the appellants employed Y as a driver of a mobile crane. They hired out the
crane together with Y as a driver, to the respondents for use in unloading a ship. The
contract between the appellants and the respondents provided that Y was to be the servant
of the respondents, but Y was paid by the appellants, who alone had the power of
dismissal. Whilst unloading the cargo, Y was under the immediate control of the
respondents, in the sense that they could tell him which boxes to load and where to place
them, but they had no power to tell him how to manipulate the controls of the crane. In
the course of loading the ship, a third party was injured through Y’s negligent handling of
the crane. The House of Lords had to decide whether it was the appellants or the
respondents who were vicariously liable for Y’s negligence, and the answer depended on
whether he was the servant of the respondents or the appellants at the time of the
accident. Lord Porter said that, in order to make the respondents liable it was not
sufficient to show that they controlled the task to be performed, it must also be shown
that they controlled the manner of performing it, and where a man is sent to perform a
task, it is easier to infer that the general employer still continues to control the method of
performance, since it is his crane and the driver remains responsible to him for its safe-
keeping. The House of Lords held the appellants vicariously liable.

Texaco Trinidad Inc. v. Halliburton Tucker Ltd. (1975) CA T&T- In this case Corbin JA
emphasized that, “There is a presumption against there being a transfer of a servant so as
to make the temporary employer responsible for his acts, and a heavy burden rests upon
an employer who seeks to establish such a transfer. The test has sometimes been
concisely expressed as being whether the servant or the benefit of his work was
transferred.”

Joseph v. Hepburn (1992) Sup Ct B’mas- In this case, H engaged an independent

contractor, S Ltd., to clear his land of bush. In the course of clearing the land, A, a tractor
driver, employed by S Ltd., encroached upon the plaintiff’s adjacent land and destroyed a
number of fruit trees. The main issue in the case was whether S Ltd., as a general
employer of A, was liable for A’s tort, or whether, as S Ltd. alleged, the responsibility for
the tort had been shifted to H as special employer? The contractual agreement between H
and S Ltd showed that H had identified the general area in which work was to be done
and S Ltd arranged for its project manager to accompany H to the site to see what was
required. S Ltd delegated the tractor driver to take instructions from H, but A’s wages
were paid by S Ltd. Thorne J said that whether A was to be regarded as the servant of the
general employer, S Ltd, or whether he became pro hac vice the servant of his particular
employer, H is a question of fact and depends upon an interpretation of the agreement
made between S Ltd and H.
His Lordship held that S Ltd had failed to discharge the heavy burden of shifting to H its
prima facie responsibility for the acts of the driver, and so A remained the servant of S
Ltd. What was transferred was not the servant but the use and benefit of his work.
However, H had been negligent in his failure to give clear instructions to A with respect
to the extent of his boundaries, and thus was liable for 10% of the damages to the
plaintiff.

The Servant must act in the course of his employment

A master will not be vicariously liable for his servant’s tort unless the act was done
during the course of his employment.

An act in the course of employment if:-

(a) it is a wrongful act expressly or impliedly authorized by the master;
-this test is self-evident.

(b) it is an unauthorized manner of doing something authorized by the master;

-all surrounding circumstances will be taken into account and not merely the
particular act which leads to damage.
Century Insurance v. Northern Ireland Road Transport Board [1942] AC 509-
The driver of a petrol tanker, whilst transferring gasoline from the vehicle to an
underground tank to filling station, struck a match to light a cigarette and then
threw it, still alight, on the floor. His employers were held liable for the ensuing
explosion and fire, since the driver’s negligent act was merely an unauthorized
manner of doing what he was employed to do, that is, deliver gasoline.

On the other hand, in Beard v. London General Omnibus Co. [1900] 2 QB 530-
the employers of a bus conductor who took it upon himself to turn a bus around at
the terminal and, in doing so, negligently injured the plaintiff, were held not liable
because the conductor was employed to collect fares, not to drive buses, and his
act was entirely outside the scope of his employment. NB. The employer may be
liable for the negligence of his driver in failing to keep proper control.

Frolics-the case of where the employee steps outside his employment and goes on
“a frolic of his own.”
Joel v. Morrison (1834) 172 ER 1338- as per Parke B, “If he was going out of his
way, against his master’s implied commands, when driving on his master’s
business, he will make his master liable; but if he was going on a frolic of his
own, without being at all on his master’s business, the master will not be liable.”

Whatman v. Pearson (1868) LR 3 CP 223- A servant who was in charge of a horse

and cart throughout the day, drove them to his house without permission for his
midday meal. The employer was held liable for damage caused by the horse
when, having been carelessly left unattended outside the servant’s home, ran
away. In this case the servant had deviated only a quarter mile off his authorized
route and the purpose of his detour was reasonably incidental to his employment.
On the other hand, in Storey v. Ashton (1869) LR 4 QB 476- where a driver had
been sent to deliver wine and collect empty bottles and, on the return journey,
deviated from his route in order to pick up a cask at the house of a friend and take
it somewhere else for the friend’s private purposes, the employer was held not
liable for the driver’s negligent driving on the way to the friend’s house, for he
was clearly on a frolic of his own.

In the Jamaican case of Dunkley v. Howell (1975) 24 WIR 293- R was employed
to drive Mrs. W in the defendant/appellant’s car to May Pen and thereafter to Mrs.
W’s home at Mocho, where the car was to be garaged. On reaching May Pen,
Mrs. W remained there, but R drove the car to Thompson Town for his own
private purposes. On his way back from Thompson Town, R negligently ran into
the back of the plaintiff’s car, causing damage. The Resident Magistrate held that,
as R’s mission would not have been completed until he garaged the car at Mocho,
which he was on his way to do, he must be taken to have been acting within the
scope of his employment at the time of the accident. The Court of Appeal
overruled the magistrate, holding that R was on a frolic of his own at the material
time.

Incidental Acts- a relevant factor in determining whether or not a servant’s tort is

within the course of his employment is the time or place at which it is committed.
Where a tort is committed during working hours or within a reasonable period
before or after, the court is more likely to hold the employer liable for it.

Ruddiman and Co. v. Smith (1889) 60 LT 708-In this instance, where a clerk
turned on a tap in the washroom 10 minutes after office hours and forgot to turn it
off before going home, his employers were held liable for the consequent flooding
of adjoining premises. The use of the washroom by the clerk was an incident of
his employment and the negligent act took place only a few minutes after working
hours.

Smith v. Stages [1989] 1 AER 833, in this case it was held that an employee, who
for a short time was required by his employer to work at a different place of work
some distance away from his usual place of work was acting in the course of his
employment when returning to his ordinary residence after completing the
temporary work if he traveled back to his ordinary residence in the employer’s
time, which he would be doing if he was paid wages (and not merely a traveling
allowance) for the time traveled notwithstanding that the time and mode of travel
were left to his discretion. Accordingly, since the employees had been paid while
driving back to the Midlands they had been traveling in the employers’ time and
the employers were vicariously liable for the first defendant’s negligent driving
which ultimately caused the death of the plaintiff.

Staton v. National Coal Board [1957] 1 WLR 893- The plaintiff’s husband, an
employee of the defendants, died following an accident upon the defendants’
premises caused by T, another employee of the defendants.
T had completed his work for the day and was on his way to collect his wages
from the pay office when the accident occurred. The plaintiff collided with a pedal
cycle that T was cycling from the time office to the wage office, and suffered
injuries which he succumbed to the following day. It was held that in going to the
pay office to draw his wages T was acting in the course of his employment, and
the defendants were accordingly liable for his negligence.

Effect of Express prohibitions- a master may be liable for his servant’s act even
though he expressly forbade such act; for if it were the rule that disobedience to
express orders necessarily took the servant outside the course of his employment,
then “the employer would only have to issue specific orders not to be negligent in
order to escape liability for his servant’s negligence.”(per Brazier, Street on Torts,
9th edition)
A distinction must be drawn between:
(1) prohibitions which limit the sphere of employment; and
(2) prohibitions which merely deal with conduct within the sphere of
employment.
Only a breach of the first type of prohibition will take the servant outside the
course of his employment, and thus relieve the master from liability: his liability
will be unaffected by a breach of the second type of prohibition.

Ilkiw v. Samuels [1963] 1 WLR 991-in this case the defendants’ lorry was driven
to the premises of the plaintiff’s employers to load bags of sugar. The defendants’
driver, Waines, put the lorry under a conveyor and then stood in the back of the
lorry to load bags from the conveyor. When sufficiently loaded, the lorry had to
be moved. Samuels, a fellow employee of the plaintiff and not employed by the
defendants, offered to move it. Waines allowed him to do so without asking
whether he could drive, and, after starting the lorry, could not stop it. It crushed
the plaintiff, who was working nearby, causing him serious injuries. Waines
remained in the back of the lorry throughout. His employers had expressly forbid
him not to let anyone other than himself drive the lorry. It was held that Waines
was negligent in allowing Samuels to drive without enquiring whether he was
competent. The defendants were vicariously liable for his negligence because it
was a mode, though an improper one, of performing the duties for which he was
employed, namely, to have charge and control of the lorry. It was therefore
negligent within the scope of his employment.

Limpus v. London General Omnibus Co. (1862) 158 ER 993-A bus driver had
been given express instructions not to race with or obstruct the buses of rival
companies and, in disobedience to this order, he obstructed the plaintiff’s bus and
caused a collision which damaged it. The driver’s employers were held liable
because the express prohibition did not limit the sphere of the bus driver’s
employment, but merely sought to control his conduct within the scope of his
employment.
Canadian Pacific Rlwy Co. v. Lockhart [1942] AC 591- In this case the
defendants expressly prohibited their staff from driving uninsured cars on the
company’s business. One of their employees drove an uninsured car in
disobedience of the order and negligently injured the plaintiff. The defendants
were held liable since, it was not the acting as driver that was prohibited, but the
non-insurance of the car, if used as a means incidental to the execution of the
work which he was employed to do. Thus, the prohibition merely limited the
means by which the servant was to execute the work which eh was employed to
do, and that breach of prohibition did not exclude the liability of the master to
third parties.

On the other hand, in the Bahamian case of Clarke v. William Brewer Co. Ltd.,
there was a prohibition which limited the sphere of the servant’s employment,
disobedience to which absolved the employer from liability. In this case, the
company’s truck drivers had been expressly forbidden to drive trucks on Sundays,
unless they were instructed to do so.
In disobedience to this rule, H, a driver, drove one of the company’s trucks on a
Sunday without permission and on personal business. The company was held not
liable for the death of another motorist caused by H’s careless driving of the truck.
Adam J found that “the driver was not using the truck for the owner’s purposes
and was not driving it under delegation of a task or duty. He was not acting as
the company’s agent. The driver was under a prohibition which limited the
sphere of his employment. The employer is therefore not liable for the driver’s
tort.”