If you’ve ever suffered due to the carelessness of a worker (for example, your car has been rear-ended by a lorry driver or you’ve suffered severe food poisoning due a waiter’s lack of hygiene), chances are, you’d like to make them pay. However, the reality is that they most likely would not be able to pay for the damage they’ve caused. Your next line of thought would be, “Can I sue their boss instead?” The answer is yes, you may do so due to a legal rule known as vicarious liability.
What is vicarious liability?
Vicarious liability is the liability imposed on one person for the wrongful act of another on the basis of the legal relationship between them, usually that of employer and employee.
As a general rule, an employer can be held liable for the wrong committed or done by his employee because, as a person benefitting from their employees work, they are the one who failed to control said employee and should thus be held liable for any tortious conduct of the employee in the performance of their work. Besides, the employer is usually in a better financial position to compensate the third party. This ensures, if nothing else, that the third party will in fact receive compensation for their injuries and the doctrine secure actual compensation to the tort victim.
Requirements to claim under vicarious liability
3 elements need to be fulfilled in order to establish vicarious liability:
1. There must be a wrongful tortious act
The court will first and foremost decide whether a tort has been committed. An example of a wrongful tortious act is negligence.
2. There must be special relationship between employee-employer
A special relationship usually exists between an employer and their employee.
The existence of an employer-employee relationship depends on whether the relationship is based on a contract of service (employee/servant) or a contract for service (independent contractor).
The law divides an employed persons into two groups:
– Servant/employee (special relationship exists – employer will be liable)
– Independent contractor (special relationship does not exist – employer will not be liable subject to certain exceptions)
Various tests may be used to determine the existence of a contract of service and the employer-employee relationship. For example:
– Control test
– Organisation test
– Multiple test
(Click http://mylegalweb.net/premium-member-contract-of-service-vs-contract-for-service/ to understand the tests available)
However, it should be noted that Malaysia favours the control test. This is as seen in Bata Shoe Co (Malaya) Ltd v Employees Provident Fund Board whereby it was held that the plaintiff was not an employee since the defendant was not responsible for the wages and control over his work.
3. The tort must occur within the course of employment
As a general rule, the employee must commit the tort during the course of their employment (i.e. while they were carrying out their duties to the employer). The traditional test for determining this is the Salmond test which states that a tort will be committed in the course of employment if it is either a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master.
i) A wrongful act authorised by the master
An employer is liable for the acts they have expressly authorized. For example, in the case of Lim Ah Tong v Ang Yau Chee, the plaintiff’s son was killed due to the 1st defendant’s driving. It was held that the 2nd (the employer) was vicariously liable since the journey was for the 2nd defendant’s benefit.
ii) A wrongful and unauthorised mode of doing some act authorised by the master
As a general rule, if an employee or worker commits a mistake in the course of performing their job, the employer will be liable. This mistake is construed as doing something authorised in an unauthorised manner.
An employee can be liable for an unauthorised act in a variety of ways:
a) the employee did something expressly prohibited by the employer
b) the employee carries out authorised work in a negligent manner
c) the employee gives unauthorised rides contrary to instructions
d) the employee exceeds the proper boundaries of the job
e) the employee applies force to achieve the employer’s objectives
Circumstances in which the employer is not vicariously liable
The circumstances in which the employer is not vicariously liable as follows:
i) The worker acted for their own benefit
ii) The employee was ‘on a frolic of his own’
For example, in Hilton v Thomas Burton (Rhodes) Ltd, the employee, while returning from an unauthorized break, killed somebody with the company van. It was held that the employer was not liable since the workman was ‘on a frolic of his own’.
iii) Activities that have nothing to do with the employer’s business
iv) The employee was travelling to and from work
It should be noted that the exception to this can be seen in the case of Smith v Stages where it was held that the employer was vicariously liable for the employees’ negligent driving as the employees were compensated for their travelling time and expenses. Thus the journey was deemed by the court as falling within their employment.
v) The employee was giving an unauthorized lift
vi) The employee acted in express prohibition by the employer
