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The Development Of Vicarious Liability Law Employment Essay
BLT 2624 Law of Torts II
Ilya Qistina Binti Abdul Harith 1102701048
Ervin AK Frankie Jerome 1102700282
Nur Fiona Binti Mohd Ali 1102702072
Regina Saw Lyn Gek 1102702046
The Tests to Determine Employer-Employee Relationship 8
The Control Test 8
Organization Test 9
Multiple Test 10
The Case of Imperial Chemical Industries Ltd v Shatwell 11
Effect of the Case 12
How Does Vicarious Liability Achieve Social Convenience 15
How Does It Help To Negate The Liability Of Employee 17
Tort law generally concerns matters of private law when a private person has committed a wrong towards another private person such as committing negligence or trespass. Apart from holding the wrong doer or tortfeasor accountable for his or her action, the law on vicarious liability introduces the concept of joint liability whereby an employer or a master will be held jointly liable for the tort committed by their employee. Employee here is given a strict interpretation and is provided with several tests. A person who is of contract for service or a ‘contractor’; where such person’s services are used for its expertise, is not considered as an employee. The law on vicarious liability starts with the tortfeasor being the employee and is followed by tests to determine whether a person is an employee or a contractor. The first test is the control test, the next is the organisation test and the last is the multiple test which will be discussed in detailed further on.
The tests on determining employer-employee relationship starts through the control test whereby an employee is said to be controlled by an employer. However, today, the job scope of a professional is usually based on their own terms and the job done is not controlled by the employer thus the control test is rendered unsuitable to be used to determine the employer-employee relationship where it involves professionals such as doctors, lawyers or engineers. The next step after determining the employment relationship, the tort done must be ‘in the course of employment’. This means that an employer could only be held jointly liable for the tort committed by an employee if it was done when carrying out work or during working hours. There are several instances where the tort done is considered done in the course of employment. The first is when the act is either expressly or impliedly allowed by the employer. The second is when the employee does something that is authorised in an unauthorised manner or thirdly the employee does something that is closely connected to what he is employed to do in the course of doing the job. [ 1 ]
Once employer-employee relationship has been established as well as the tort done is within the course of employment, then only would an employer be held jointly liable for the tort committed by the employee. This has been said to achieve social justice which would be provided for after the evaluation of each part of the test.
The Development of Vicarious Liability under English Law
A major portion of primitive law is based on revenge which normally, is arbitrary. The Mosaic Code (Moses Law), however, states expressly that each man should be put to death only for his own sin and not for that of his father or son. The individual defendant in a tort, in a majority of cases are poor and in order to ensure that the plaintiff actually receives the compensation to which he is entitled legal mechanism which enables the plaintiff to fix responsibility upon someone other than the tortfeasor himself was propounded through the principle of vicarious liability.
The idea of complete liability for the wrongs of servants or slaves during the early Anglo-Norman period slowly changed to the idea of liability only where there has been command or consent on the part of the master of the servant’s wrong. The change continues from 1300 onwards until the early sixteenth century where the command theory has become established. Thereafter, until the seventeenth century, the master’s liability was restricted to cases where he had particularly commanded the very act complained of.
With rising commercial prosperity and complexities of trade this limited form of liability became inadequate. Sir John Holt (Chief Justice from 1688-1710) established the rule that the master was liable not only for acts done at his express command but also for those done by his implied command. What is to be implied can be inferred from the general authority he had given his servant in his employment (this new rule is stated clearly in the case Tuberville v Stamp [ 2 ] ; the old rule appears as late as in the case of Kingston v Booth [ 3 ] ). This new rule thus, laid down the foundation of the modern law that liability is related to the scope of the employment. The principle of primary liability was still whether the master could be shown to have been a direct participant in the tort as having impliedly commanded it. The master and servant relationship per se was not a legal requirement of liability – it was merely a factual element in the case from which a command could be implied, and other relationships might serve the same purpose equally well. [ 4 ]
In 1849 it was finally held that the exercise of master and servant relationship was essential. The master’s liability is derived from the relationship and is truly vicarious. During that time the phrase "implied authority" which had been the primary basis of the master’s liability gives way gradually to the modern "course of employment". [ 5 ]
As a matter of law, the defendant (D) will be made vicariously liable for the acts of another person (C) if:-
C has committed a wrongful act causing damage to the plaintiff;
Some special relationship exists between D and C, e.g. A contract of employment;
Some connection exists between the act of C and his special relationship with D, i.e. the act must be in "the course of C’s employment" or in "the scope of C’s authority".
This principle allows the defendant employer to limit his liability by an express prohibition on certain conduct by his employee such as giving unauthorised lifts in Rose v Plenty [ 6 ] .
As a general rule, only one special relationship gives rise to vicarious liability, namely, that of employer and employee. A distinction then arose as to whether an employment is a contract of service or a contract for services.
Historical tests centered around finding control between a supposed employer and an employee, in a form of master and servant relationship. The roots for such a test can be found in Yewens v Noakes [ 7 ] where Bramwell LJ stated that, "…a servant is a person who is subject to the command of his master as to the manner in which he shall do his work."
The control test effectively imposed liability where an employer dictated both what work was to be done, and how it was to be done. This is aptly suited for situations where precise instructions are given by an employer; it can clearly be seen that the employer is the causal link for any harm which follows. If on the other hand an employer does not determine how an act should be carried out, then the relationship would instead be one of employer and independent contractor. This distinction was explained by Slesser LJ as, liability of the employer arises where he not only determines what is to be done but retains control of the actual performance; but where the employer prescribes the work to be done, leaving the manner of doing it to the control of the doer, then the latter is an independent contractor.
In Mersey Docks and Harbour Board v Coggins and Griffiths Ltd, [ 8 ] the House of Lords held that the test to be applied should be on "where the authority lies to direct, or to delegate to, the workman, the manner in which the vehicle is driven. It is this authority which determines who is the workman’s superior". In holding as such the House of Lords found the appellant liable vicariously as they still had the power to direct how the driver (whose wages was still paid by the appellant) is to work the crane even though the crane was hired by the respondent from the appellant.
Liability for independent contractors was found in Honeywill and Stein Ltd v Larkin Brothers Ltd [ 9 ] where photographers hazardously undertook to photograph a theatre interior, and set alight to it.
The traditional control test to establish liability gives rise to difficulty in recent years, as the duties of employees have grown ever more specialised. Various formulations of the test have been proposed, to rectify these problems. One such formulation focuses on the ability of an employer to specify where and when tasks be carried out, and with whose tools and materials. Other tests focused on different contractual and external factors. Lord Denning, in the case Stevenson, Jordan and Harrison Ltd v Macdonald, [ 10 ] proposed a test based on the integration of an individual to a business or organisation.
Tests based on the economic relationship between an employer and employee has found favour in subsequent cases, notably Market Investigations Ltd v Minister of Social Security, [ 11 ] in the decision of Lord Cooke. It was argued in this case that where a person was in business on their own account (and at their own risk), they would be under a contract for services whilst otherwise they would be under a contract of service. Market Investigations Ltd was cited with approval by the Privy Council, with several relevant factors being considered, such as risk of loss, and chance of profit.
Liability is thus, generally not extended to the acts of independent contractors. However, there are several circumstances in which an employer may be liable for the acts of contractors such as when the employer directs the contractor to commit a tort or where an employer negligently selected a third party contractor. The broadest exception however is where a non-delegable duty is imposed upon an employer, either by statute or through common law, to prevent the harm of others. Similarly, where a duty is imposed by statute, either to carry out work in a certain way or to take due care in carrying out work, then this is non-delegable. [ 12 ] Common law duties may arise in several exceptional circumstances, for example, where an activity to be undertaken is especially hazardous, and involves obvious risks of damage. This duty was recognised in Honeywill and Stein Ltd v Larkin Brothers Ltd, [ 13 ] Finally, where an independent contractor, through negligence, allows fire to spread to neighbouring land the occupier will be held fully liable.
A new approach in determining vicarious liability was propounded in the Canadian case of Bazley v Curry [ 14 ] whereby the Court laid down the underpinning rationale in finding liability is that of policy and loss adjustment,
"….the employer puts into the community an enterprise which carries with it certain risks. When those risks materialises and cause injury to a member of the public despite the employer’s effort, it is fair that the person who creates a risk bear the loss when the risk ripens into harm. ….. the second policy concerns, fixing the employer responsible for the employee’s wrongful act may have a deterrent effect."
Bazley v Curry’s policy approach was adopted by the House of Lord in the case of Lister v Hesley Hall Ltd [ 15 ] and subsequently endorsed by Lord Nicholls in Dubai Aluminium Co Ltd v Salaam. [ 16 ]
These decisions have led to a widening of the scope of vicarious liability and a new method of analysis. The class of cases where vicarious liability may be established has greatly increased. The test from Bazley’s case is very valuable in determining borderline cases whether vicarious liability should be imputed onto an employer.
The Tests to Determine Employer-Employee Relationship
The nature to determine the differences between employer and employee relationship is important as accepted views is that people who have a contract of service are considered as employees while the worker who have a contract for service is consider as an independent contractor. Over the years, the courts have developed a number of tests in deciding whether a particular person is an employee or not.
The Control Test
The control test is also known as the four-fold test. This is because there are four elements that need to be taken into account in using the control test. The first is the right to hire or selection of the employee. The second is the payment of wages and salary. The third is the power of dismissal or the power to impose disciplinary actions and lastly is the power to control the employee with respect to the methods by which work is to be accomplished. [ 17 ] This test was also followed in the Malaysian case of Bata Shoe Company (Malaysia Ltd) v Employee Provident Fund Board [ 18 ] where the elements were applied to the case in determining whether an employee in one of the stores is considered as an employee of Bata Shoe Company or the store itself. It was then held that Bata Shoe Company is the employer thus the worker is an employee because Bata Shoe Company has the right to dismiss the worker.
Employers or masters will only be liable for the tort of their employees as they are called in law. In the past the usual way of deciding whether a person is an employee is to look at the degree of control exercised over the person’s work by the supposed employer. The control test can be seen in the case of Ready Mixed Concrete(South East) Ltd v Minister of Pensions [ 19 ] , it was stated that a person should be considered an employee if the following criterias are satisfied; First, that the person agrees to provide work and skill for the employer in return of payment. Secondly, that he or she agrees to subject to the employer’s control. Third, that the other terms of the contract are consistent with the existence of a contract of service. Terms which would be inconsistent with such a conclusion might be that the person is required to pay their own materials or is allowed to employ staff to help to do the job. Another factor frequently taken into account is who owns the tools and equipment used to do the job.
In the past, the control test was the primary indicator used by the courts to determine the relationship between employer-employee. An employer or employee relationship was held to exist when an employer could tell an employee what work to undertake and how it should be done. While this test is still used, the control test, it is clearly outdated in relation to modern work practices. In this modern era of the technological age, the employees are often and frequently expected to be able to exercise discretion and creativity in their performance. Professionals with skills and experience do not expect to be told what to do and how to act during their job
This test looks at the integration of the worker into the employer’s business and asks, does the worker economically a dependent to a company or if the worker’s work or activities is an essential component of the business, if the answer is yes, than the worker will be likely to be consider as employee .
In determining the relationship between the employer and employee, the control test failed to provide for an accurate result therefore the organization test was used in the case of Stevenson Jordan & Harrison Ltd v. MacDonald & Evans [ 20 ] in this case Lord Denning mentioned in his judgement stated that, "it is often quite easy to recognize a contract of service when you see it, but very difficult to say wherein the difference lies. A ship’s master, a chauffeur, and a reporter on the staff of a a newspaper are all employed under a contract of sevice, but a ship’s pilot , a taxi – man, and a newspaper contributor are employed under a contract for sevice. One feature which seems to me to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business, whereas under a contract for services his work, although done for the business, is not integrated into it is only accessory to it." Basically what judge meant was that even though there was a new element in determining the relationship, there is in no way a simple and completely accurate test that is able to determine whether a contract is of service or for service.
From time to time the control test and the organization tests are difficult to apply due to the lack of control of the employers over the method on how the work is to be done. Besides that it also relate to the lack of clarity in the situation. A number of tests were developed by the courts to test the employment status and this includes the economic reality or multiple test.
The multiple test was put forward by Mackenna. J in the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968). According to the judge three conditions must be satisfied if the wrongdoer is to be properly considered an employee:
The employee has agreed to provide skill in return for a wage, a degree of control is exercised by the employer, and any terms found to exist are not inconsistent with employment as such.
In addition, the courts have found it necessary to take into account numerous factors when considering whether the tortfeasor is an employee, such factors are not conclusive in themselves but help in the process. Factors such as whether the individual owns the tools of his trade, his liability for tax and National Insurance). Also taken into account is the method of payment, does the individual receive a regular payment or wage or does he receive a one off payment once his work is complete?
The control test is still used, but clearly in the light of these developments, it can no longer be conclusive. The courts now accept that no single test could determine the employer and employee relationship, as well to cover the variety of work situations, and instead they look at all circumstances and facts of the particular case and the level of control. After the earlier test has been criticize for not being able to present a clear relationship, the test based on common sense approach which is the multiple test is use to encounter the problem from earlier test.
Such can be seen in the case of the Ready Mixed Concrete(South East) Ltd v Minister Of Pensions and National Insurance. There are three elements which the court held that has to be fulfilled to establish contract of service which are the employee or the 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. Secondly the employee or servant agrees, whether impliedly or expressly, that he will be bound by the employer’s instructions and thus is reflective of the employer- employee relationship. Thirdly, all other conditions in the agreement are consistent with the nature of the job, which is a contact of service.
The Case of Imperial Chemical Industries Ltd v Shatwell
In the case of Imperial Chemical Industries Ltd v Shatwell [ 21 ] , the plaintiff and his brother were were certificated and experienced shotfirers employed by ICI Ltd in a quarry owned by the defendant company. Part of the brothers’ work included wiring up detonators and checking the electrical circuits. There was an old practice where a galvanometer was applied directly to each detonator for testing purposes. They had insufficient wire to test a circuit to allow them to test from a shelter. Another worker had gone to fetch more wire but the brothers decided to go ahead and test with the shorter wire. Each brother claimed against the defendant based on their employer’s vicarious liability for the negligence and breach of statutory duty of the other brother. The defendant raised the defence of volenti non fit injuria in that the brothers the brothers had full knowledge of the risk and were acting against express instructions. [ 22 ] This practice was known to be dangerous and was outlawed by statutory regulation in which the brothers were aware of. The plaintiff claimed his brother was 50 per cent to blame for the explosion and the employer was vicariously liable. The plaintiff was awarded half of the total amount of damages. The defendant appealed.
In the court’s decision, all 5 judges allowed the appeal and held that the plaintiff and his brother were both experts. They freely and voluntarily assumed the risk involved in using the galvanometer. There was no pressure from any other source. To the contrary, they were specifically warned about complying with the new safety regulations. The defence of volenti non-fit injuria will apply when there is true and free consent to the risk. Thus, the employers were not liable because, firstly the employers not being themselves in breach of duty, any liability of theirs would be vicarious liability for the fault of James, and to such liability (whether for negligence or for breach of statutory duty) the principle volenti non fit injuria afforded a defence, where, as here, the facts showed that George and James knew and accepted the risk (albeit a remote risk) of testing in a way that contravened their employers’ instructions and the statutory regulations. Secondly, each of them, George and James, (the brothers) emerged from their joint enterprise as author of his own injury, and neither should be regarded as having contributed a separate wrongful act injuring the other. The defence of volenti non fit injuria should be available where the employer is not himself in breach of statutory duty and is not vicariously in breach of any statutory duty through neglect of some person of superior rank to the plaintiff and whose commands the plaintiff is bound to obey, or who has some special and different duty of care. [ 23 ]
Effect of the Case
In the context of vicarious liability, this case has considered the topic of volenti non fit injuria [ 24 ] and whether or not an employer could rely on this defence when one of its employees injured themselves while acting in breach of the rules and regulations relating to his job. [ 25 ] In the judgment, [ 26 ] the House of Lords emphasized the distinction between lack of care for one’s own safety and the true acceptance of risk. A plaintiff’s conduct cannot be described as voluntary unless he truly had a free choice. The House considered the origins of the doctrine of vicarious liability and decided that the doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice, and an employer who is himself at fault in persistently refusing to comply with a statutory rule could not possibly be allowed to escape liability because the injured workman had agreed to waive the breach.
Lord Reid, in his ruling allowing the appeal stated that though "… an employer who is himself at fault in persistently refusing to comply with a statutory rule could not possibly be allowed to escape liability because the injured workman had agreed to waive the breach." and "It was argued that in this case it has not been shown that George [Shatwell] had a full appreciation of the risk. In my view it must be held that he had. He knew that those better qualified than he was took the risk seriously. He knew that his employers had forbidden this practice and that it had then been prohibited by statutory regulation. And he knew that his employers were taking strong measures to see that the order was obeyed. If he did not choose to believe what he was told I do not think that he could for that reason say that he did not fully appreciate the risk. He knew that the risk was that a charge would explode during testing, and no shot firer could be in any doubt about the possible consequences of that. "
Lord Pearce also is of the same opinion of vicarious liability and added in his decision, "I am not persuaded that there is any reason of principle or policy which can be of substantial guidance in the resolution of the problem of applying the rule in any particular case. Theory may well justify the existence of the concept, but it is hard to find guidance from any underlying principle which will weigh in the decision whether in a particular case a particular wrongful act by the employee should or should not be regarded as falling within the scope of the employment." and "Since contributory negligence has ceased to be a total defence and it has become possible to produce a fair result by apportionment, the reluctance to find the total defence of volenti non fit injuria became more marked …" and "Where Parliament has laid down that certain precautions shall be taken by the master to protect his workman, the master is not and should not be entitled to neglect those precautions and then rely on an expressed or implied agreement between himself and the workman that the latter, if injured as a result of the neglect, will bear the loss alone."
Viscount Radcliffe stated, "These considerations apart, there are involved in this case questions as to the application of the maxim volenti non fit injuria and as to the principle that in the eyes of the law a man cannot be treated as having disavowed a statutory protection enacted for his benefit in the public interest. On these points, I have had the opportunity of studying in advance the opinions of your Lordships, and I wish to associate myself in particular with the opinion to be delivered by my noble and learned friend, Lord Pearce. I do think it of great importance that the law should not in general allow a person to disqualify himself from the protection of a statutory duty imposed for his benefit, where there is any element of public advantage in upholding the duty. But I do not think that this is a case in which that principle applies."
Lord Hodson said that a plaintiff’s conduct couldn’t be described as voluntary unless he truly had a free choice. [ 27 ]
In the law of tort, there are many other cases which mentions the use of vicarious liability, one such case which deals with principles similar to the case of Imperial Chemical Industries v Shatwell is Stapley v Gypsum Mines Ltd [ 28 ] . The facts of this case was as such; Mr Stapley was killed when a roof of a mine fell on top of him. At the time of his death he was acting against his employers orders. He and another employee Mr Dale had been told to bring the roof down as it was dangerous. The pair knew that this meant that they should not to work in that part of the mine because of the risk. They attempted to bring down the roof but were unsuccessful in their attempts. They then decided to continue with the work they had originally been given. At the time of the collapse, Mr Dale had briefly left that part of the mine and was uninjured. Mrs Stapely brought an action against his employer for breach of statutory duty in relation to the actions of Mr Dale. The trial judge found for the Claimant, but reduced the damages by 50% under the Law Reform (Contributory Negligence) Act 1945. The Court of Appeal allowed an appeal by the Defendant holding that Mr Stapely was solely responsible for his own death. The Claimant appealed to the Lords. The court held at a decision of 3:2 that the appeal was allowed but the damages was reduced by 80%. [ 29 ]
How Does Vicarious Liability Achieve Social Convenience
Vicarious liability is the principle that when an employee committed torts in the course of employment, the employer will be held liable for that tort. Lord Chelmsford once stated that "every act which is done by an employee in the course of his duty is regarded as done by his employer’s orders, and consequently is the same as if it were his employer’s own act." [ 30 ] In order to ensure that the employer will be held liable, several elements need to be established and justified. Those are namely, the act must be a tortuous act, it must be done within the course of employment and
Vicarious liability is said to help achieve social convenience because it helps to protect the rights of victim so that they are entitled to sufficient amount of compensation which they are entitled to receive. This doctrine is also applicable if the employees had done something that is prohibited by the employer but such act is actually authorised, then the employer would still be held liable. For instance, in the case of Lister v Hesley, the employee was employed as a warden by the employer to take care and supervise a group of boys in a home. The warden then sexually abused the boys that lived in the house. Hence, the court held that the employer is liable because there was a close connection between the employee and the employment. He was in charge of taking care of the child and the abusive act was done in the course of employment [ 31 ] . This case helps to widen the scope of law in such areas so that it is convenient and easier to discover that the employer is responsible for the torts committed by their employees.
This type of liability helps to achieve and social convenience as well as negate the liability of the employer. This is because an employer is surely in a better financial position if compared to the worker. Hence, they are more capable of paying compensation to the victims. It will help to reduce the number of people being uncompensated in results of the employee can’t afford the amount of compensation being asked by the victims. The employers would be in the best position to mitigate the cost. The employers also earn more salary and most of them are in hold of insurance in order to overcome any unexpected circumstances. For example, in the case of Irving v Post Office [ 32 ] , when an employer knows if there is any terrible situation occurs consequent to his employees act, then he realise that the position he is holding can only be protected by insurance. Hence, that is all they need to do. They will also be able to meet the cost of claims that will be asked by the victims. This is also known as ‘Deep Pocket’s Theory’.
Not only that, even if the employer have to suffer losses from the liability, they can always recover their earnings by increasing the prices of products or services they provided for the consumers. They have the power to change the nature of level being engaged in regarding the earning or profits. Therefore, such rules will definitely protect the employee from being sued or claimed within the course of employment since they would not be able to pay it.
This rule also has improved the standards of working environment. When an employer knows that he would be liable for any torts committed by his employee, he will definitely try to control the act of employees and workers. Employers will give more explanations on the manner of how work is supposed to be done. Not to mention, there are also certain employers which provide any courses or talks which will need to be attended by the employees before they can start working in the company. Such imposition of liability also will encourage the employers to be more cautious and alert of what is happening in their company. This type of control will ensure that the business or company is practicing the highest possible standards of safety which will protect the company from being sued. They will provide well-trained workers in the employment. This will assist the country to produce more products of higher quality and consequently, it will help to develop the economic system. Employees also will become more responsible and hardworking.
Employers will pay more attention towards matters relating to supervising the work done, selection of workers, organisations as well as the discipline and behaviour of the employees. Employers are obviously in the best position to modify the techniques of such production. The similar accidents also can be avoided from happening again in the future. This clearly will enable our morals and healthy workplace culture to get better.
This rule does not only protect the administrative staff but it also protects those workers who involved in medical department like nurses as well as dispensers. This is because, in appointing the members of staff for medication, the doctor must follow all the rules and regulations provided. They must check the qualifications and which post suits the best with the staff. For example, in Hong Kong, a doctor must, upon making a contract with other healthcare professionals, he must ensure that their qualifications definitely put them in the right position. Few examples of healthcare professionals are the physiotherapist, optometrists, radiographers and others [ 33 ] . With this, such hospitals or clinics would gain more confidence in order to get more patients. In addition, the staff should also undergo an induction for a certain period so that they will get to know and familiar with the environment of the place they are working.
In the case of Hill v James Crowe, tort is committed by members or workers of a big and successful company, it is very difficult to identify the particular or specific employee that is in fault of causing such damage. This is because, they have too many employees and sometimes the specific person who committed the tort could not be find. Hence, when the employer is automatically liable when such tort was caused within his enterprise, then it will be convenient to identify the target instead of searching one by one.
How Does It Help To Negate The Liability Of Employee
This rule helps to negate the employees’ liability in several ways. Once an employee engaged into a contract of service with the employer, they are totally in the control of the employer. Any torts committed by employee in the course of employment will be on the responsibility and liability of the employer. However, it must be based on the justifications of the court.
When a worker is said to have committed a mistake in the course of employment, while doing something that is authorised by the environment of the employment but he did it in an unauthorised manner, they will also be protected. As what happen in the case of Bayley v Manchester, Sheffield and Lincolnshire Rly [ 34 ] , the porter who works at a train company pulled out one of the passenger from a train as he thought that the person had been mistakenly entered into the wrong train. Hence, the court held that the defendant which is the employer of the porter was held liable even though the act was done by his employee that is the porter.
Other than that, in the cases of fraud of servant as well, the employer would still be liable just as long as the act was done within the scope of employment and the act is closely connected to the job or task they have been assigned for. In Lloyd v Grace, Smith & Co [ 35 ] , defendant’s clerk persuaded the claimant to transfer her property to him. Therefore, as a clerk, that act was within the scope of apparent authority which he had been given by the defendant (employer). Therefore, the defendant should be held liable.
This rule also helps to negate the liability of employees in matters where the employees is acting beyond the limits or go against what is prohibited by the employers just as long as it was did in the course of employment. The act also must relate closely to his job then only it will constitute to vicarious liability. In the case of Limpus v General Omnibus Co. [ 36 ] , it involves the employee of a bus company. Generally, every company will strictly prohibited their bus driver from racing with another bus or obstruct other buses. The employee of this company did what is prohibited in which he obstructed the plaintiff’s bus which was from the rival bus companies. Hence, the court held that the driver’s employers will be held liable even though it was the employee‘s fault who did the prohibited act.
Not to mention, even when an employee committed theft in the course of their employment, the employer could also be liable for that tortuous act. Case in point is Morris v CW Martin & Sons Ltd. [ 37 ] , the employee was told to send the plaintiff’s mink for cleaning purpose. However, the employee then stole it. The court justified that what the employee had done was performing his job but he did it in an unlawful manner. So it was held that employer is liable for the theft committed by the employee because it was done within the course of employment.
Another way is when an employee breached a statutory duty, employer would still be vicariously liable. For instance, we can look at the decision made by court in the case of Majrowski v Guy’s and St Thomas’s NHS Trust [ 38 ] . In this case, the plaintiff who took an action was the one of the employees of the defendant. He sued the employer for he had suffered sexual harassment at his workplace which means by the employees of the same company. In accordance to the Protection of Harassment Act 1997, any sexual harassment committed within the course of employment is considered to breach this act. Hence, liability is imposed on the employer as his employees had already breach the statutory duty. In order for the employer to escape the liability, it must be proven that such statute or act excludes the vicarious liability whether expressly or impliedly.
Even when the employee is acting on the ground to benefit for himself, the employer could also be liable. This is the general principle in which decision is depending on the justification of the court. The case of Roshairee Abd Wahab v Mejar Mustafa Omar & Ors [ 39 ] , in an orientation programme, the plaintiff had become deaf after being ragged and assaulted by the defendant’s employees. The government which was the employer nevertheless stated that they had never asked the defendants to do such acts and it is strictly prohibited under the military regulations. The court however held, although they were not trained to do so, they already did it in the performing the duty they have been given. The duty to train in the orientation is an act authorised by the employer but they abused it by carrying out the assault and ragging acts which are improper.
Hence, from all of the above cases, most important thing that needs to be proven is that the act must be done within the course of employment. Then, it must also be proven that it is closely connected to the job or duty they are performing. From all of the above statement, it was clear that those circumstances help to negate the liability of the employees. It helps to bear the cost burden of employees in the mistakes they have made in doing their job.