Meaning

 Vicarious Liability refers to a situation where

A is liable to C for damage or injury suffered
by C due to the negligence or other tort
committed by B.
 A-need not have done anything wrong
 A-need not even owe a Duty of care towards
C
 But because of a special relationship between
A & B, A becomes liable.
The requirement of VL;

1. There must be employer and employee

relationship

2. The employee committed the tort during the

course of employment
Rationale of VL

 If the employer benefits from the employee,

surely he should also take responsibility when
the worker commits a tort, in the course of
employment.
 The employer was negligent in employing a
careless servant
 It would be fruitless at times to bring actions
against employees as they might not be
financially able to pay the damages. The
employer – more able to meet the payment.
Sometimes employers have insurance coverage.
 ELEMENTS OF VICARIOUS LIABILITY

1. WORKER IS AN 2. WORKER COMMITTED THE

EMPLOYEE UNDER A TORT DURING THE COURSE OF
CONTRACT OF SERVICE EMPLOYMENT

TEST TEST

1. CONTROL 2.
TEST INTERGRATION 1. SALMOND
TEST TEST

3.
MULTIPLE 2. CLOSE CONNECTION
TEST TEST
1. EMPLOYER AND EMPLOYEE
RELATIONSHIP
 To establish this relationship, it has to be proved that the employee
is under a “contract of service” and not “contract for service”
  
 “Contract of service” means that the worker is an employee and is
paid a salary. This establishes employer and employee relationship.
  
 “Contract for service” means that the worker is not employed on a
regular basis, but is an independent contractor.
  
 Therefore, before the employer is found to be
liable for VL, the first thing to be ascertained
is, is the worker an employee or not. How to
do this?
 
 Test –
 control test or
 intergration test or
 the multiple test
CONTROL TEST
 This was the initial test used to determine the relationship
whether the worker is an employee or independent
contractor. (Short v. J.&W. Henderson Ltd (1946) KB 598)
 It would be a contract of service if;

 there is power of selection by the employer

 there is power in determining salary
 there is power/ right of the employer to control the method
and instruction in which the work is done – tools, whose
tools, where it was kept after use
 power or right of the employer to terminate the services of
the employee.
 However this test was not taken to be a
conclusive test as it was not very accurate
especially in certain employments where the
employer could not control and tell their
employee what to do although they were still
regarded to be employees.
 Ex; Doctors and engineers.
 Easier cases of contract of service are clerks,
factory workers, those paid on a monthly
basis. For contract for service, contractor
doing renovation, grass cutter, when there is
a need for them they are called to do the job
after which they will be paid on completion.
  
Ready Mixed Concrete (South East) Ltd. V.
Minister of Pension & Nation Insurance (1968)

 The Company devised a scheme whereby concrete was to

be delivered to its customers ready made. L, entered into a
contract with the company to deliver such concrete on a
daily basis. L was to deliver concrete but run, maintain,
repair, insure and drive his own lorry. He was paid on a
mileage and bonus basis. He was subject to all the rules and
regulations of the co. Was L an employee or independent
contractor?
 High Court held: He was an independent contractor and a
Contract of service should have the following terms; 1.
exchange of skills for wages
 2. agreement that he will be subject of
control of his Employer.

 Cassidy v. Minister of Health (1951)
 9 resident surgeons negligently operated on a
plaintiff. Hosp was held liable.
  
 But see Hillyer v.The Govenor’s of St.
Bartholomew’s Hospital (1909) 2 KB 820,
 Where the Plaintiff, a selected Consultant,
was an independent contractor who was
merely using the facilities of the hospital.
The Organisation Test /
Integration Test
 Few years after the control test, the organisation
test was developed. By using the organization
test, the court again tried to differentiate
‘contract of service’ and ‘contract for service’ to
determine the relationship between the
employer and employee

 In a contract of service, the person concerned

works as part of the of the organization and his
work forms an integral part of the organization,
whereas in a contract for services, even though
the work is done for the organization, it is not
integrated into it but is only accessory to it.
Mat Jusoh bin Daud v. Syarikat
Jaya Seberang Takir Sdn Bhd.
 Pf worked as a sawyer in the Df’s sawmill. He sustained
injuries.
 In an action for damages against the Df, the Df denied
liability as he said he was not the employer of the Plaintiff.
He said that the plaintiff was the employee of a certain Lim,
who was the defendant’s contractor. Lim was under a
contractual arrangement to supply workforce to the
defendant.
 Salleh Abbas FJ relied on the organization test in holding
the defendants as employers because the plaintiffs work
was an integral part of the defendant’s business and in
addition to that the wages, the number of logs to be sawed
was determinable by the defendant.
Multiple Test

 Other tests created to determine, employee

employer relationship
 the most recent and preferred test is the
‘Multiple Test’, which takes into
consideration the overall effect of
employment; like wages, whether there is
control, supply of tools, where the tools are
kept after work, EPF, leave, income tax.
  
What is important from
these tests:
 Before the employer is found to be vicariously
liable, it must first be determined that the
worker who committed the tort is the
employee of the employer.
 Therefore, if the employee is found to be
under a contract of service, then he will be
considered as an employee.
Lending a worker
 If B, an employee of A, is lent to C, and B subsequently commits a
tort, the general principle is that A will be vicariously liable unless
A has divested himself of all control.
  
 Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool)
Ltd (1947)
 A employed B as an employee, a driver of a mobile crane and
hired out the crane together with B to C. The contract between A
and C provided that B should work for C but would be paid by A
and A alone had the power to dismiss B. B negligently injured X
in the course of loading a ship. At that time C had direct control
and direction of the work being done by B and his crane, but he
had no power to direct how B should work and manipulate its
control. HOL held that A was still the general Permanent
employer of B and was therefore vicariously liable to X.
2. IN THE COURSE OF EMPLOYMENT

 An employer is only liable for the tortious acts of his

employee that are done during the course of employment.
The employer will therefore be liable when;

 when the wrongful act is expressly or impliedly allowed by

the employer, or
 when the employee does something that is authorized in a
wrongful or unauthorized manner, - [Salmond test]
 or 
 the employee does something that is closely connected
with what he is employed to do.
 [close connection test]
1. Carelessness of the
Employee

 If the worker is authorized to do the work by

the employer, then the employer will be
Vicariously Liable, if the employee was
careless in doing so and caused damage to
the Plaintiff.
  
 Century Insurance Co. Ltd. V. Nothern Ireland
Road Transport Board (1942)
 Pf had petrol station. Df’s worker went there to
transfer petrol. He lit a cigarette and threw the
burning match on the floor and this caused an
explosion wherein the Pf’s property was
destroyed.
 Employer liable for the tort done by the
employee as it was during the course of his
employment. He was authorized to do the work
but he did it negligently in an unauthorized
manner.
 Zakaria bin Che Soh v Chooi Kum Loong & Anor (1986)
 An accident took place while the driver (the
employee) was on his way to unload belongings
carried while on duty and not on his way home for
lunch. He was performing his duties as instructed by
the employer.
 Even if he was driving home for lunch, the employer
would still be liable on the particular facts of the
case. Although the act is one that is strictly not
required by the employee to do, it still fell within the
sphere of employment as it was a reasonable and
necessary thing to do.
2. Mistake of an employee

 This is also considered as doing something

authorized in an unauthorized way, in which
the employer will also be found to be V.L.
 Ilkiw v. Samuels (1963)
 A lorry driver allowed a stranger to drive his
lorry when an accident occurred due to the
negligence of the stranger. COA held that the
employer was liable not for the negligence of
the stranger but for the negligence of the
lorry driver for letting a stranger drive the
lorry.
 Bayley v. Manchester, Sheffield and
Lincolnshire Rly (1873)
 The defendants were liable when their porter
pulled out a passenger from a train as the
porter mistakenly thought that the passenger
was on the wrong train.
3. Express prohibition by
the employer

 If the worker has acted contrary to the

express prohibition of his employer – the
court will examine what the worker has done.
  If he has done something that he was not employed
(unauthorized) to do, then it will be construed to mean that he
was acting outside the scope of duty. (Employer not liable).
Twine v. Bean’s Express Ltd (1946) - unauthorised act

  While doing the job that he was asked (authorized) to do, he

does something expressly forbidden (unauthorized) by the
employee, it falls within the scope of duty. (Employer liable).
 Limpus v. General Omnibus Co.(1862 ) - unauthorised
mode
 State Gov. Of Perak v. Muniandy (1986)
 Rose v. Plenty (1976),
 Twine
 Employee was told not to give lifts. But he did
and the person was injured due to employee’s
negligence. Employer not liable, as giving
free lifts was not the job that the employee
was employed to do and therefore the
employee was acting outside the scope of his
employment. (He did it for his friend) –
unauthorised act
 Rose
 A milkman’s employer warned him not to allow
children to help him or to allow passengers on his
vehicle. Milkman however, did engage a 13 year
old plaintiff to help him and the plaintiff suffered
injury due to the negligence of the milkman
while on the vehicle. Court held – Employer
liable. The milkman was acting in the course of
employment as the engagement of the boy was
made for the business. (He did it for the
employer) – unauthorised mode
 Limpus
 The bus driver was expressly forbidden from
racing and obstructing other buses from rival
companies. But he did so and caused a
collision with the Plaintiff’s bus. Employers
were held liable. Driver was still doing an
authorized act but in an unauthorized
manner. – unauthorised mode
4. Criminal acts of the
employee (acting ‘on a

frolic of his own’)
 If the employees act has intended to benefit
him alone, or is not done in furtherance of his
employment , the employer wont be liable.
But if he has committed the tort for the
benefit of his employer or is done in
furtherance of his employment, then the
employer will be liable. (Ex : assault / battery)
 Keppel Bus Co. Ltd. V. Sa’ad bin Ahmad (1974)
 The resp – passenger on a bus. The employee – bus
conductor. They were arguing about the way the employee
was treating an old lady. After the lady got down they
started again. This time it was a heated argument and the
employee hit the resp. with his punching ticket machine
and the resp was blinded.
 High Court – employer vicariously liable.
 Privy Council – said employer not vicariously liable, because
when the battery occurred, the lady had already left the bus
and the conducter was acting out of emotions and not in
the course of employment. It had already become
something personal.
 Morris v. CW Martin & Sons Ltd. (1965) –
(theft by an employee)
 Plaintiff sent her fur coat to X to clean. X sent it
to the defendant, who was a specialist.
Defendant handed it to their employee who then
stole it. COA, held that the employer was liable.
The theft was a dishonest performance by the
employee of what he was employed to do and
was done in the course of employment. [Now:
to be considered in the light of Lister]
 Llyod v. Grace, Smith & Co. (1912) – (Fraud of the
employee)
 The defendant Solicitors (employers) were found
liable for the conveyancing clerk’s fraud (transferred
Plaintiff’s property into his name and sold it for his
own benefit). HOL stated that employers were
vicariously liable because they had placed that clerk
in that position to enable him to do what he did. It
gave the clerk authority to do these transactions and
the plaintiff was also made to believe so. (This is
what happens at law firms sometimes.)
 [Now: to be considered in the light of Lister]
 Lister v. Hesley Hall Ltd. (2001)
 The warden of a boarding house for school
children had emotional and behavioral
difficulties had systematically sexually abused
the Plaintiffs who were residents in a
boarding house. The question was the
warden’s employer could be held vicariously
liable for the sexual abuse.
 Held: HOL
 To determine the scope of the employees course of employment,
the courts should ask;
 whether the wardens torts were so closely connected with his
employment that it would be fair and just to hold the employer
vicariously liable. On the facts of this case, the answer is “yes”.
The sexual abuse was instrinsically interwoven with the warden’s
duties.
 The tort was committed at the time and at the premise of the
employer while the warden was caring for the children.
  It was the employee’s position as warden and close
contact with the boys that created a sufficient
connection between the acts of abuse and the work that
he had been employed to do. His duty was to look after
the plaintiffs and he abused his position.
 Employer found liable.

 Since Lister, all cases involving assault of the plaintiff and

all cases involving criminal conduct by the employee should
be considered in the light of the HOL’s decision in Lister.
CONCLUSION

• If employer authorised wrongful act - liable

• Employer is liable even for acts which he has not
authorised, provided they are so connected with acts
which he has authorised that they may rightly be
regarded as modes - although improper OR
UNAUTHORISED MODES - of doing them.
Conclusion ctd
 Whether the job was a mode for him to carry out
the wrongful acts or did the job merely create an
opportunity for the employee to carry out the tort?
 If the job created merely an opportunity to carry
out the wrongful act, then the Employer is not
vicariously liable.
 But if the job was a mode for him to carry out the
wrongful act, then close connection is established
between the wrongful act and the employment in
which the employer will be found liable as well.
 Close connection Test