By Bizibrains Okpeh
INTRODUCTION
According to Malemi (2008), vicarious liability is any situation whereby one person is liable for the conduct, or tort of another person, because of a relationship existing between them and the wrongdoer. It is a form of tort that involves fixing an employer with liability for the tort committed by his employee while the latter is in the course of his employment. Nevertheless, it is adapted to the specific needs and peculiar circumstances of each jurisdiction based on social justice and universal acceptation, more so under common law regimes. Though the core of the doctrine may remain unchanged, specific facts and circumstances may necessitate a variation in the interpretation of the elements of the doctrine by the courts, to broaden or limit liability, whichever is desirable in the circumstances.
Vicarious liability is of common law origin and generally based on case law, however, in recent times, statutes have continued to make in-roads in shaping the operation and/or application of the doctrine both in Nigeria and England. Whether the effects of these statutes are direct or indirect, positive or negative, they aim at either denying or ensuring an effective system of compensation to victims of torts committed by employees in the course of their employment. Some of these statutes are hereunder discussed.
1. Constitution[1] The Constitution is the fons et origo of all other laws in Nigeria and its effect, whether negative or positive on the doctrine of vicarious liability, remains a subject of controversy that has generated different legal opinions. There is no express provision under the Constitution as to whether the State should or should not be held liable vicariously for the tortuous acts committed by its servants in the course of their employment. Notwithstanding, a community reading of certain provisions of the Constitution[2] may imply that legal conclusions that suggest that the State is immune to vicarious liability may be inconsistent with the provisions of the Constitution, and thus void.[3] However, this may elicit further questions.
For instance, what is the scope of the State’s liability under the Constitution; is it absolute or qualified? In this atmosphere of uncertainty, one thing is perhaps certain. While the conclusion that the Constitution has abrogated the anachronistic common law doctrine that the State can do no wrong is indeed a desired legal development, yet, it has not cleared all doubts and conjecture.[4] Whatever the case, the ultimate effect of Section 6 of the Constitution may be that the Petitions of Right Act,[5](which houses the common law doctrine of State immunity) no longer applies in Nigeria to the extent of such immunity. This is also consistent with the position under the English law where the (UK’s) Petitions of Rights Act[6] has been abrogated by the Crown Proceedings Act.[7]
2. Crown Proceedings Act[8]
The English jurisprudence does not operate under a written Constitution.[9]Hence, the greatest statutory intervention on vicarious liability in England is perhaps the Crown Proceedings Act. This Act made far-reaching provisions. As the biblical account of the renting of the temple’s curtain to allow access to the temple to all following the death of Jesus Christ,[10] it opened wider the door of justice to all and sundry who may have genuine claims against the Crown by abrogating the common law doctrine (and a fortiori, the Petitions of Right Act) that the king is infallible, a saint, who cannot be subjected to his justice system. The ultimate effect is that the Crown can now be sued, and in appropriate cases held vicariously liable for the tortious acts of its servants.[11] From the generality of the above, it can be gleaned that the absolute immunity of the Crown/State has been abolished in England[12] in favour of qualified immunity. Though one would have routed for absolute liability of the State/Crown, the qualified immunity attached to the Crown in respect of servants whose functions are connected with the judiciary[13] is a welcome development as it ensures that judicial officers would carry out their functions without fear of prejudice, however, that may compromise the English justice system. The Crown can also be held vicariously liable for the delicts of any of its departments to the extent of any delineation or limits allowed by law.[14]Also, the Crown may be held vicariously liable for any injury caused by the negligent acts of its employees inter se[15], that is, where one servant of the Crown in breach of his common-law duties causes injury to a fellow servant, the Crown may be held vicariously liable for a breach of its common law duty to provide competent staff.[16]
The import of the intervention of the Crown Proceedings Act also lies in the fact that it ensures an effective system of compensation to victims of torts committed by the Crown through its servants or agents. Thus, in appropriate circumstances, the Crown may be bound to compensate or indemnify or contribute in compensating or indemnifying any person who has suffered any tortuous injury occasioned by the servants or agents of the Crown.[17]
The distant equivalent of the English Crown Proceedings Act under Nigerian law appears to be the Constitution, which empowers the court to entertain, inter alia, any civil matters between persons and institutions, including the Government and its departments.[18] Thus, it may seem that under the present legal regime in Nigeria the case of Ransome-Kuti v Attorney-General of the Federation,[19] where the Supreme Court, applying the provisions of the Petitions of Right Act[20] held to the effect that the Nigerian State has (unlimited) immunity from vicarious liability is no longer good law.
3. Labour Act [21]
Labour Act[22] is another statute that has made provisions in respect of vicarious liability, albeit by necessary implication. The provision of this Act become significant in a situation whereby the employer has not undertaken any liability insurance or where he has undertaken a policy, but the
insurer lawfully refuses to pay. This means that the employer will shoulder the burden of the employee’s torts in the course of his employment and subsequently resort to his common law right of indemnity against the employee.[23] Thus, the employer may institute an indemnity claim against the employee.
But the question is; how would the employee compensate the employer? Stated differently, how would the court order be executed? Does the employee pay in a lump sum or is the indemnity deducted from his wages or salary? Could there be any prior agreement as to how this should be done? It is in this regard that a look at the provisions of the Labour Act may be helpful. The Act provides to the effect that except where it is expressly permitted by the Act or any other law no employer shall make any deduction from the wages to be paid by the employer to the worker, provided that a reasonable deduction may be made in respect of injury or loss caused to the employer by the tortuous acts of the worker.[24]
It can be deduced from the above that the common law right of the employer to claim indemnity against the employee is recognised by statute. It is submitted that the words “any other law” in section 5(1) of the Act include the common law. Also, “injury or loss” as contained in the proviso to that subsection includes any loss suffered by the employer, including loss arising from vicarious liability as a result of willful misconduct or negligence of an employee resulting in tortuous injury or damage to a third party.
Thus, it appears the court may make an order directing the employer to deduct from the salaries of the employee to recoup losses suffered by the employer as a result of the delicts of the employee occasioned in the course of his employment. Also, the employer may, having obtained the requisite consent in writing of an authorised labour officer, make such deductions,[25] provided that no such deductions shall exceed one-third of the employee’s wages in any one month.[26] Under English jurisprudence, the position is similar to that of Nigeria. In England, an employer is not allowed to make deductions in the salary of an employee unless, inter alia, it is required or allowed by law, the employee agrees to it in writing, or it is a result of a court order.[27] Provided
that, except in certain circumstances, an employer cannot deduct an employee’s wages below the National Minimum Wage, even if the employee agrees to it.[28]
It is submitted, without prejudice to the generality of this paper, that the Nigerian position appears to be less protective of the employee than the English position. In the former, the deduction is capped at one-third of the employee’s wages per month even where the employee’s wages is just at the official national minimum wage (that is, assuming it is not even below it as some workers are paid below the national minimum wage in Nigeria), while in the latter, the employer is generally not allowed to deduct the employee’s wages below the national minimum wage. However, both the position in Nigeria and England is relatively unsatisfactory. There is a greater need to protect employees from the burden of vicarious liability. The court could use the machinery of the law to exempt employees from any indemnity or contribution claim by employers.[29]
4. Law Reform (Torts) Law[30]
Another statutory intervention on vicarious liability in Nigeria is the tort laws of the various states. One of such laws is the Law Reform (Torts) Law.[31] One of the imports of this law is the abolishment of the common law defence of common employment[32]. Hitherto, whenever an employer was sought to be made liable for the tort of one of his employees resulting in an injury to another of his employee, the claim was usually defeated by the employer’s defence that both employees were in the same employment. This meant that employees who suffered injuries as a result of the negligent act of fellow employees couldn’t be compensated by the employer. However, with the coming into force of the Law Reform (Torts) Law[33], employers can now be held vicariously liable for injuries sustained by other employees as a result of the negligent act of fellow employees[34]. Comparatively, this position is similar to the English position. Under English law, the defence of common employment no longer applies[35].
5. Fatal Accidents Laws of the Various Nigerian States
The fatal accident laws of the various states in Nigeria are aimed at ensuring that the employer may still be held vicariously liable for the delicts of his employee which results in the death of the victim upon a suit instituted by the immediate relatives, personal representatives, or estate of the victim.[36] In this way, the law ensures the posthumous compensation of the deceased victim in the guise of his personal estate.[37] This is in pari materia with what is obtainable under English law. The (UK’s) Fatal Accidents Act[38] also provides to the effect that a deceased victim of a tort committed by an employee in the course of his employment may be posthumously compensated as the death of the victim will not preclude the vicarious liability of the employer.[39]
However, a comparative review of the provisions of both enactments, to wit, the Fatal Accidents Law and (UK’s) Fatal Accidents Act[40]appears to unfold a sharp contrast between them to the effect that, while the former seems to be narrow, the latter appears to be expansive. This contrast manifests, inter alia, in those entitled to benefit under both enactments. Under the law, it is the immediate family[41] of the deceased person, whom a cause of action survives his death,[42] which includes the widow, or widows, widower, any parent,[43] any child,[44]brothers, sisters, step-brothers, step-sisters and any person entitled to share in the award of Diya under Moslem Law.[45]
On the other hand, respecting the Act,[46] it is the dependants of the deceased,[47]which includes the wife or husband, former wife or husband,[48] the civil partner or former civil partner,[49]any person who was living with the deceased in the same household for at least 2 years before the date of his/her death as his wife or her husband or civil partner,[50] any parent or other ascendant of the deceased,[51]any person who was treated by the deceased as his parent,[52]any child or other descendant of the deceased,[53]any person who is, or is the issue of, a brother, sister, uncle, or aunt of the deceased,[54] inter alia.[55]
It is clear from the above that under the English law, there is a larger group who may benefit under the Act[56] than the position in Nigeria.[57] It is humbly submitted that except for “civil partnership” which is outrightly prohibited in Nigeria,[58] and rightly so, there is a need for legislative action to broaden the scope of beneficiaries who may benefit under the fatal accident laws. This is in accord with the rationale for vicarious liability, which is to ensure that victims (including their relatives) of torts committed by employees in the course of their employment are promptly and adequately compensated.
[1] The Constitution of the Federal Republic of Nigeria, 1999 (as amended)
[2]Ibid Sections 46 & 6(6)(b)
[3]See Ransome-Kuti v A.G Federation [2001] FWLR (pt.80 ) 1637at 1685-1686 per Eso, JSC
[4]Ransome-Kutis’scase (supra) at 1709, per Oputa, JSC
[5] Cap149 Laws of the Federation of Nigeria and Lagos, 1958
[6] 1860
[7] 1947 Section 2
[8]1947
[9]Malemi, E. The Nigerian Constitutional Law 3rd edn. (Lagos: Princeton Publishing Co., 2012) p. 25
[10] Mathew 27:51
[11] See the Crown Proceedings Act, 1947 Section 2(1) – (6); See also Halsbury’s Statutes, 4th edn Vol. 13 p.12
[12]See the Crown Proceedings Act, 1947 Section 2
[13]Ibid Section 2(5)(6)
[14]Ibid Section 2(4)
[15]Ibid Section 2(1)(b)
[16]Ibid
[17]See the Crown Proceedings Act, 1947 Section 4
[18] The Constitution of the Federal Republic of Nigeria,1999 (as amended) Section 6
[19] Supra at 1700, per Kariby-Whyte, JSC; A.S.E.S.A. v Ekwenem [2001] FWLR (pt51) 2034 at 2053-2054; per Olagunju, JCA; where a state government agency, Anambra State Environmental Sanitation Agency was held vicariously liable for the torts of its staff.
[20] Cap 149 Laws of the Federation and Lagos,1958 Section 3 & 5
[21]Cap L1 Laws of the Federation of Nigeria, 2004
[22]Ibid
[23]See Lister v Romford Ice & Cold Storage Co.(1957) AC 555
[24]See the Labour Act CapL1 Laws of the Federation of Nigeria, 2004 Section 5
[25]See the proviso to the Labour Act CapL1 Laws of the Federation of Nigeria, 2004 Section 5(1)
[26]Ibid Section 5(7)
[27] See the (UK’s) Employment Rights Act, 1996 Section 13
[28]See the United Kingdom Pay Guide available at http://www.gov.uk/understanding-your-pay/deductions-from- your-pay accessed 27th November 2016
[29] See the Law Reform (Torts) Law Cap L64 Laws of Lagos State of Nigeria, 2004 section 14(2); the Torts Law Cap163 Laws of Benue State of Nigeria, 2004 Section 22
[30]Cap L64 Laws of Lagos State of Nigeria, 2004
[31]Ibid
[32] See the Law Reform (Torts) Law Cap L64 Laws of Lagos State of Nigeria, 2004 Section 4
[33]Ibid
[34]See Cox v Ministry of Justice [2016] URSC 10
[35]See the (UK’s) Law Reform (Personal Injuries) Act, 1948 Section 1(1)(2)(3)
[36]See the Fatal Accidents Law CapF1 Laws of Lagos State of Nigeria, 2004 Section 3; the Torts Law Cap163 Laws of Benue State of Nigeria, 2004 Section 3
[37] See Akinsanya v Longman [1996] 3 NWLR (Pt.436) 303
[38]1976
[39]Ibid Section1
[40]1976
[41]Ibid Section 3(2)
[42]Ibid Section 2(1)
[43]That is the father or mother, including the grandfather, grandmother, stepfather, and stepmother of the deceased. See the Fatal Accidents Law CapF1 Laws of Lagos State of Nigeria, 2004 Section 2(1)
[44]That is a son or daughter, including a grandson, a granddaughter, stepson, stepdaughter an adopted son or adopted daughter, and an illegitimate son or daughter of the deceased. See the Fatal Accidents Law CapF1 Laws of Lagos State of Nigeria, 2004 Section 2(1)(2)
[45] That is a son or daughter, including a grandson, a granddaughter, stepson, stepdaughter an adopted son or adopted daughter and an illegitimate son or daughter of the deceased. See the Fatal Accidents Law CapF1 Laws of Lagos State of Nigeria, 2004 Section 2(1)(2)
[46]1976
[47]See the (UK’s) Fatal Accidents Act, 1976 Section1(2)
[48]Reference to which includes a person whose marriage to the deceased has been annulled or declared void and a person whose marriage to the deceased has been dissolved. See the Fatal Accidents Act, 1976 Section1(4)
[49]Ibid Section 1(3)(aa)
[50]Ibid Section 1(3)(b)(i)(ii)(iii)
[51]Ibid Section 1(3)(c)
[52]Ibid Section 1(3)(d)
[53]Ibid Section 1(3)(e)
[54]I d Section 1(3)(g)
[55]See generally the (UK’s) Fatal Accidents Act,1976 Section 1(3)-(5)
[56]1976
[57]CapF1 Laws of Lagos State of Nigeria, 2004
[58]See the Same Sex Marriage (Prohibition) Act, 2013 Section 1
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Well written article. However the case of Ransome Kuti vs the AG Federation [1985] 2 NWLR (Pt 6) SC 211 which was suggested to be bad law may not be so. Some features in he case suggest this. First, the facts of the case occurred in 1977 before the 1979 Constitution came into force. Therefore the laws applicable to the case were the laws in force at the time, including the 1963 Constitution. See the opinion of Eso JSC at page 230 paragraph A-C of the NWLR report. Secondly also the cause of action in the case was in tort and at the time there was no equivalent provision to S.6 of the 1979 Constitution in the 1963 Constitution which was the one applicable.