Vicarious Liability Table

Vicarious liability Defnition:

A rule of responsibility which renders the D liable for the torts committed by another. another. There must be an employment relationship.  Justifcation: control the employee. 1. Employer to be held liable for for employing a negligent employee, employee, for ailure to control the 2. Since the employer employer derives benet from from the employee!s employee!s services, he should should be made liable for any any wrongful conduct of the employee in the performance of his wor". #. $Deep %poc"et! %poc"et! concept& concept& master is in the better nancial nancial standing to compensate compensate #rd party. Elements

E'planation

First: Employee committed a wrongul or tortious act

A tort e.g trespass, negligence, nuisance has been committed by employee

Second R: Existence o an employeremployee relationsip

Distinction between a contract of service *employee+& a special relationship e'ist and a contract for service *independent contractor+ (ontract of service *employee+& The person wor"s as part

(ase

full time lecturer

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of the organisation and his wor" forms an integral part of that organisations. (ontract for service *independent contractor+&Even though he is also done for the organisation, but it is only ancillary and is e'ternal factor to the organisation.  There are # tests to determine this (ontrol Test Di-culty to apply lac" of control of employers over the method in which the wor" is to be done.

!rganisation test

Short v /0 )anderson td. ord Than"erton  factors to be considered i+ Employer has a power to select employee ii+ Determine salary iii+ (ontrol iv+ 3ower to terminate (ontract of service& captain of a ship,

independent contractor

(ollins v )ertfordshire (ounty (ouncil

(ontract of service e'isted if the employer had the power to instruct the employee and to control the method in which the wor" has to be done.

4at usoh bin Daud v Syari"at

)eld Since wages and no

Di"culty in apply: not being able to present a clear and candid answer in many situations#

4ultiple test& common sense approach

driver, 5ournalist. 0or"s as part of the organisation and his wor" forms an integral part of that organi6ation

 5aya Seberang  Ta"ir 7act 3 wor"ed as sawyer at D!s sawmill. 3 sustained in5uries while carrying a (ontract for service& log with another ship!s pilot, ta'i co&wor"er. driver, contributor to (onse8uently D newspaper. Even refused his further though the wor" is employment. D done for the contend that 3 organi6ation, it is was not their not integrated into it employee but an but is only accessory employee of 9 who to it. was the contractor of D

;eady 4i'ed (oncrete td < 4inister of 3ensions and =ational >nsurance

of logs to be sawn were determinable by D, the 3!s wor"s was an integral part of D!s business and 3 was therefore D!s employee. D must ta"e reasonable care to avoid from unneccesary ris". D was found vicariously liable for not providing a proper and e:ective system at wor". # factors need to be fullled before a contract of service is established

1.Employee or servant agrees that he will use his own e'pertise and the employer pays him either in monetary form or in any other form of renumeration. 2.Employee or servant agrees, whether impliedly or e'pressly , that he will be bound by the employer!s instruction, which is re?ective of employer& employee relationship. #.All other conditions in the agreement are consistent with nature of

the 5ob being a contract of service. 4alaysia court favour control test

enerally no di-culty to di:erentiate them, e'cept in this two conditions $ospital Sta% 

0or"ers have been held to be non& employees on the basis that the D was not responsible for payment of wages and did not have control over the manner in which the wor" is performed

@ata Shoe v E37 @oard

(assidy v 4inistry Bf )ealth *house& surgeon, assistant medical o-cer+ ;oe v 4inistry of health  Tan Siew Eng v Dr  ag5it Singh

>f negligence occur in a hosp, and the tortfeasor cannot be identied, the hosp will be vicariously liable. >n ;oe, hosp will still be liable even

&ending a wor'er

 The employer is still liable unless he has divested himself of all possession and control. #rd ; Employee (onduct of the acted in the course employee  of hisCher & >s employment when e'presslyCimpliedly coming to allowed by employer committing tort & >s authorised but done in unauthorised manner & >s ought or should be done in the course of doing the 5ob.  >s a 8uestion of fact  Thus it would be fair and 5ust to hold the employer vicariously liable for the tort committed by the

4ersey Doc"s / )arbour @oard v (oggins / ri-ths

though negligence is committed by a part time employee. 3ermanent employer and therefore vicariously liable.

employee. (ircumstances all witin )te course o employment* +# (arelessness o wor'er

,# nautorised mode.ista'e o employee

(ommission of careless act as long as not $on a frolic of his own! *employee!s act is intended to benet himself alone+

(ourt will hold the employer liable. 4ista"e will be construed as doing sth authorised in an unauthorised

(entury 0or"er >nsurance (o td v =orthern >reland ;oad Transport @oard 7act D!s wor"er who was driving an oil tan"er, stopped at 3!s petrol station to transfer petrol from lorry to underground tan". )e lit up a cigarette and threw the burning match on the ?oor. E'plosion occurs and 3 property destroyed. @ayley v 4anchestor, She-eld and incolnshire

D liable for wor"er!s negligent act. @ecause it was done in the course of his employment even though the actual act of smo"ing did not benet the employer

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

manner.

#. 3rotecting employer!s property . Employee delegating his responsibility . Employee acting for his benet

I.

Acting

porter mista"enly thought the train was heading elsewhere.

4ust not e'cessive& degree and fact

3oland v 3arr / Sons

;esponsibility must not be delegated.

>ll"iw v Samuels& a negligence!s conduct Ga"aria b (he Soh v (hooi Hum oong 7act 3 was a driver with a research institute in >poh. After sending the director home, he drove home for lunch and accident occurred on the way.

 Test whether the conduct of the wor"er is reasonable, is that it is not too remote from comtemplation of both parties as to ta"e the act out of the employment. >f driver had driven 2FF miles for lunch, employer would not be held vicariously liable.

(onduct was

(ase (onway 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 e'pected to be done in the course of employment and the accident occurred within the course of employment. >n action

against employer!s e'press prohibition

J. Employee acting $on frolic of his own!

prohibited but related to the mode of performing his  5ob& within the course of employment.

eorge 0inmpey and (o 7act the driver of a lorry acting against clear oral instruction of his employers, too" 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 ris".  The passenger was subse8uently in5ured by the negligence driving of the lorry driver.

;oshairee Abd 0ahab v 4e5ar 4usta:a Bmar

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

K. 7raud of employee

0or"er acting on the apparentCostensible authority

L. Theft of employees 1F. Se'ual abuse by employee 11. @reach of statutory duty iability in ;espect of >ndependent (ontractor

Employer not vicariously liable, e'cept in

(ase loyd v race

4orris v (0 4artin / Sons td ister v )esley )all 4a5rows"i v uy!s and St. Thomas =)S Trust A person who although wor"ing for another person, he is not controlled by the other person or consuct relating to the performance of that wor". A contract for service. Employer authorising the commission of tort& a person who authorises another to commit a tort is deemed to have committed the tort

himself. =egligence of the employer =on&delegable duties

D@H v Bng Ho" 3eng ee Hei v ui See