Vicarious liability means the liability of one person for the torts committed by another person. The general rule is that every person is liable for his own wrongful act. However, in certain cases a person may be made liable for wrongful acts committed by another person. For example: An employer may be held liable for the tort of his employees. Similarly, a master is liable for any tort, which the servant commits in then course of his employment.
The reason for this rule of common law is that:
As the master has the benefit of his servant's service he should also accept liabilities.
The master should be held liable as he creates circumstances that give rise to liability.
The servant was at mere control and discretion of the master.
Since the master engages the servant, he ought to be held liable when gagging a wrong person.
The master is financially better placed than the servant.It must be proved that a person was acting as a servant and that the said tort was committed in the course of his employment before a master can be sued for a tort committed by his servant.
MASTER AND SERVANT
A servant means a person employed under a contract of service and acts on the orders of his master. The master therefore controls the manner in which his work is done. The concept of vicarious liability is based on the principle of equity that employee is normally people of meager resources and it is therefore only fair that the injured person is allowed to recover damages from the employers. Therefore a master is liable for the torts committed by his servant.
To prove liability under master-servant relationship the servant must have acted in the course of his employment A master is liable whether the act in a question was approved by him or not. It is immaterial that the alleged act was not done for the benefit of the master. But the master is not liable for torts committed beyond the scope of employment.
A servant is a person who works under the control of and is subject to the directions of another e.g. house-help, home servant, chauffeurs etc. Such persons are employed under a contract of service.
The servant would also hold his master liable for torts committed in the course of duty for action done on ostensible authority. For vicarious liability to arise, it must be proved that: The servant would also hold his master liable for torts committed in the course of duty for action done on ostensible authority. For vicarious liability to arise, it must be proved that:
1. There was a lawful relationship between the parties.
2. There must have been a contract of service between the parties.
3. The servant is under the control and discretion of the master. This control and discretion is determined by the master‟s freedom:
- To hire or fire the servant.
- To determine the tasks to be discharged.
- To provide implements.
- To determine how the tasks would be discharged.
- To determine the servants remuneration.
-That the tort was committed by the servant in the course of his employment. This is irrespective of whether the servant was acting negligently, criminally, deliberately or wantonly for his own benefit. In Patel Vs Yafesi, where an employee was carrying 3 excess passengers in the vehicle contrary to the master‟s instructions, it was held that the master was liable as the driver was acting in the course of his employment.An employer is however responsible for the torts committed by an independent contractor where the contract, if properly carried out, would involve commission of a tort and also in cases where the law entrusts a high duty of care upon the employer.
An independent contract means a person who undertakes to produce a given result without being controlled on how he achieves that result. These are called contract for service. Because the employer has no direct control of him, he (the employer) is not liable for his wrongful acts.
However, there are certain cases (exception) under which the employer may still be liable. These are: -
a). Where the employer retains his control over the contractor and personally interferes and makes himself a party to the act, which causes the damage.
b). Where the thing contracted is in itself a tort.
c). Where the thing contracted to be done is likely to do damage to other people's property or cause nuisance.
d). Where there is strict liability without proof of negligence e.g. the rule in Ryland vs. Fletcher.