Modern Approach to the Doctrine of Vicarious Liability1562 views
By Bizibrains Okpeh
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Vicarious liability is a species of torts that consists in fixing an employer with liability for the tort committed by his employee while the latter is in the course of his employment. The mechanics of vicarious liability may be illustrated thus; where ‘A’ employs or engages ‘B’ to work in ‘A’s vineyard, and ‘B’ in so doing intentionally or negligently causes injury to ‘C’. ‘A’ will be liable to ‘C’ in damages for the injury inflicted by ‘B’ upon ‘C’ while working for ‘A’; provided that ‘B’ would have been otherwise liable.
Based on social justice and of universal acceptation, more so in common law regimes, it is adapted to the specific needs and peculiar circumstances of each jurisdiction, so that even within the same jurisdiction, though the core of the doctrine may remain unchanged, specific facts and circumstances may necessitate a variation in the interpretation of its elements by the courts, to broaden or limit liability, whichever is desirable in the circumstances. Thus, it is the need to enquire into the complexities of this legal phenomenon, respecting how it has developed, what stage it has reached, and whether it requires significant change (in Nigeria) as well as to demystify the various hypothesis inherent in the operation of the doctrine that forms the crux of this work.
Finally, this work concludes that the modern approach to vicarious liability is expansive and progressive and leans towards ensuring adequate compensation to victims of torts committed by employees in the course of their employment. It recommends a broader or wider approach to the doctrine in Nigeria.
Meaning of Vicarious Liability
The concept of vicarious liability has no one universally accepted definition that is conclusive enough to preclude all other definitions. The matter is made worse when we consider that there appears to be no statutory definition of the concept. What follows hereunder are the various attempts by text writers and judicial formulations aimed at defining the concept.
The Black’s Law Dictionary defines vicarious liability as ‘Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.’ On its part, the Oxford Dictionary of Law defines vicarious liability as the legal liability imposed on one person for torts or crimes committed by another although the person made vicariously liable is not personally at fault. According to Malemi,
“it is any situation where one person is liable for the conduct, or tort of another person, because of a relationship existing between them and the wrongdoer.”(3)
Ese, M. Law of Tort (Lagos: Princeton Publishing Co., 2008) p.287
Making his contribution, Nwoke posited that ‘Generally speaking, vicarious liability is a term used in describing situations in which a person is held liable for damage caused either by the negligence or other act of another.’
Vicarious liability holds an employer liable for the wrongs committed by his/her employees, otherwise known as ‘helpers’ in the course of their employment.
Bell, J. ‘ The Basis of Vicarious Liability ’ (2013) 72 Issue 01 The Cambridge Law Journal p.17
The courts have also given judicial interpretation to the concept of vicarious liability. In Launchdury v Morgansthe court posited that vicarious liability means one person takes the place of another as far as liability is concerned. Also, in the Nigerian case of Sharon Paint & Chemical Co. Ltd v Ezenwathe court held that vicarious liability is an indirect legal responsibility, such as the liability of an employer for the act of an employee, or a principal for torts of an agent. It is the master that must be responsible for the actions of the servant. It cannot be otherwise since the law cannot operate inversely.
This study, therefore, conceives vicarious liability as the liability of an employer for the wrongs of his employee in the course of his employment aimed at ensuring a workable compensation to the objects or victims of such wrongs.
With respect, it is submitted that this view may be misleading. This is because the servant must be liable to ground the liability of the master. In other words, the employer’s liability rests, at all times, on the liability of the employee and the former cannot arise without the latter. The master only shoulders the liability of the servant.
Origin and/or History of Vicarious Liability
It appears text writers are not settled on the origin of the doctrine of vicarious liability. While writers like Holmes contended that the doctrine of vicarious liability originated from Roman law, others like Wigmore opined that it originated from Germany. Still, some other scholars like Baty made light of the origin but concluded that the doctrine came into English law at the close of the 17th century. According to Holdsworth, during the middle ages, a master was held liable at civil law for all the torts of his servant, and later for only those mischiefs of his servant done by his command and consent.However, following the expansion of commerce and industry in the 17th century, the ‘command theory’ could no longer stand the test of time, resulting in the enlargement of vicarious liability.
The reason for this was two-fold. First, under modern conditions, it was no longer practicable for an employer always to control the activities of his servants, especially in large corporations. Secondly, the increasing complexities of modern business with its attendant hazard meant a wider spectrum of responsibility on the employers than that which they hitherto bore.
Eventually, the ‘course of employment theory’ emerged to the effect that a master shouldered the liability for the torts of his servants, whether or not the master authorised or ratified it, or manifestly forbade it, provided that the wrongful act complained of occurred in the servant’s course of employment. Thus, by the 19th century, vicarious liability has assumed a modern outlook in England. And in this guise, it is founded not on fault but consideration of social policy, driven by the need to ensure an effective system of compensation to victims of torts occasioned by employees in the course of their employment, as in the words of Abdulkarim, a person wrongfully injured should not be left without a claim, or at best, a hollow claim.Under Nigerian law, the doctrine of vicarious liability is relatively nascent. Following its development in England, the doctrine was eventually exported to Nigeria as part of the received English law.
Since the reception, therefore, the doctrine of vicarious liability was incorporated into our legal system has remained part of our law.
Rationale and/or Justification for Vicarious Liability
The rationales for vicarious liability are not far-fetched. According to Ghandi, vicarious liability can be justified on the grounds of policy considerations and social insurance. The policy considerations are what Lord Simonds referred to as the product of social necessityand to Sir John Holt, it is public policy. Thus, Lord Pearce concluded that,the doctrine has not grown from any very clear logical or legal principle but social convenience and rough justice.
Also, as a scheme of social insurance, it is usually asserted that the doctrine of vicarious liability enables the innocent victim to sue the party most probable to ensure compensation. Knowing of potential liability for the torts of his/her servants, the employer (“usually”) insures against these liabilities and the cost of insurance is reflected in the price it charges to its customers. Thus, the employer is the most suitable channel for passing the losses on through liability insurance and higher prices.Also, vicarious liability is usually rationalised based on respondent superior (“let the superior answer”) and qui facit per alium facit per se (“he who does a thing through another, does it himself”).
In Various Claimants v Catholic Child Welfare Society, Lord Phillips summarized the rationale to the effect that (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability, (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer, (iii) the employee’s activity is likely to be part of the business activity of the employer, (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee, and (v) the employee will to a greater or lesser degree, have been under the control of the employer. These factors are not all of equal importance.
Relationships That May Give Rise to Vicarious Liability
As a tort, vicarious liability requires a special relationship between the defendant and the wrongdoer. In other words
‘vicarious liability in tort is imposed upon a person in respect of the act or omission of another individual, because of his relationship with that individual.’
Cox v Ministry of Justice  UKSC 10 at 6, per Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agreed
This relationship includes employer/employee relationship, principal/agent, employer/independent contractor,car owner and casual agent, parent/child, partnership relationships, inter alia. Note, however, that the principle of casual agency may be presumed.
Tests for Vicarious Liability
In IfeanyiChukwu v Soleh Boneh Ltd the Supreme Court held that for a plaintiff to succeed in a claim for vicarious liability, he must establish the existence of three elements, to wit (i) that the wrongdoer is liable for the tort (ii) that the wrongdoer is the servant of the master and (iii) that the wrongdoer acted in the course of his employment with the master.
Tortfeasor’s Liability Test
For vicarious liability to lie the plaintiff must establish that the servant (tortfeasor) is first and foremost liable for the tort. In the recent case of Iyere v B.F.F.M Ltd the Supreme Court held that:
‘for the plaintiff to succeed in an action against the master, he must produce sufficient evidence from which the court makes a finding of fact to the effect that the servant is liable for the tort complained of.’ Although the liability of the master is founded on that of the servant, the master cannot take advantage of immunity from suit conferred on the servant.
IfeanyiChukwu Ltd v Soleh Boneh Ltd (supra) at 2065, per Ogundare JSC
Special Relationship Test
Yet another element that must be established by the plaintiff to succeed in an action for vicarious liability is that of a special relationship. The purport of this test is that there must exist some kind of relationship between the wrongdoer and the master, being a relationship recognized by law as capable of fixing the master with the liability for the tort committed by the servant in the course of his employment. Generally, this relationship is classically one of employment. But who is an employer or an employee? The Labour Actdefines an employer as,
‘any person who has entered into a contract of employment to employ any other person as a worker…’
See also the Employee’s Compensation Act, 2010 Section 73
‘any person who has entered into or works under a contract with an employer…’
See also the Employee’s Compensation Act, 2010 Section 73
From the above statutory definitions, it is shown that the employer/employee relationship arises out of a contract of employment.
Notwithstanding the above statutory definitions, certain difficulties may arise in an attempt to categorize the employer/employee relationship. Thus, at common law, three tests have evolved over a period of time in determining the relationship of master/servant. These tests include the control test, the organisation test,and the multiple tests.
Course of Employment Test
For an employer to be liable for the tort of his employee, the employee must have committed the tort in the course of his employment. In the recent case of B.P.E (Nig.) Ltd v Roli Hotels Ltd, the Court of Appeal, adopting the definition of the Black’s Law Dictionary defined scope of employment as the range of reasonable and foreseeable activities that an employee engages in while carrying out employer’s business. The difficulty with the course of employment test has so much to do with the phrase itself as much as the activities that could come within it. This difficulty is manifested in the various tags that are associated with the test including but not limited to ‘scope of employment test,’ ‘close connection test,’ ‘field of activities test’ and ‘sphere of employment test.’ Though these phrases appear to be similar, yet each may have far-reaching legal implications distinct from the other.
Although various phraseologies are used in determining when an activity is within the scope of employment of the employee, these are far from being conclusive. In the recent case of Julius Berger (Nig) Plc v Ogundehinthe Court of Appeal held that:
“a servant’s wrongful act is deemed to be in the course of his employment if it is ‘a wrongful and unauthorized mode of doing some act authorized by his master’ or a wrongful act authorized by the master.”
See Iyere v B.F.F M Ltd (supra)
Perhaps, a very controversial areaof this test is the effect of an express prohibition upon an employee not to act in specified ways in the course of his employment. This prohibition may limit the sphere of employment in which case the employer will not be liable, or may deal only with conduct within the sphere of employment in which case the employer will not escape liability.Where an employee commits the tort complained of outside the scope of his employment, he is said to be on a frolic of his own,and whether a tortfeasor’s conduct amount to a frolic of his own is a question of degree.
Vicarious Liability of Juristic Persons
A juristic person (artificial person) is an entity such as a corporation that is recognized as having a personality, that is, it is capable of enjoying and being subject to legal rights and duties, it is contrasted with a human being, who is referred to as a natural person. It is also called a juridical or moral person. Generally, at law and in equity a ‘person’ subsumes both natural and artificial person. Therefore, like natural persons, juristic persons are subject to the operation of vicarious liability both civilly and criminally. While the former has long been accepted, the latter is still approached with a lot of skepticism.
Concerning vicarious civil liability, in IfeanyiChukwu Ltd v Soleh Boneh Ltd the Supreme Court of Nigeria made it undoubtedly clear that a corporation is a fictitious person distinct from its members, it is not capable of acting in propria persona but acts only through its agents or servants. Thus, the liability of a body corporate is, therefore, in all cases a vicarious liability for the act of other persons. On vicarious criminal liability, earlier at common law, a corporation was held criminally liable with respect to nonfeasance which later included misfeasance acts.Today, a juristic person may be held criminally liable vicariously for all offences with such exceptions as assault, manslaughter, murder perjury, and rape.
However, under English law, a juristic person may be held liable for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act. There have been several convictions under the Act. Under Nigerian law, the position remains that of the common law. Although the Corporate Manslaughter Billis at the National Assembly since 2010, it is yet to see the light of the day. Furthermore, various statutes create strict liability offences under which a corporation may be held strictly liable, albeit vicariously for the criminal acts of its agents or servants.
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REFERENCES AND CITATION
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- Martin, EA & Law, J (eds). 6thedn (New York: Oxford University Press Inc., 2006) p.564
- Ese, M. Law of Tort (Lagos: Princeton Publishing Co., 2008) p.287
- Nwoke, FC. Law of Torts in Nigeria (Jos: Mono Expressions Ltd, 2003) p.474
- Bell, J. ‘ The Basis of Vicarious Liability ’ (2013) 72 Issue 01 The Cambridge Law Journal p.17
-  (1973) AC.122 at 135, per Lord Denning
-   FWLR (pt.43) 290 at 312; Nduka v Ezenwaku (2006) 6 NWLR (pt.809) 494
- See Sharon Paint & Chemical Co. Ltd v Ezenwa (supra) at 312
- See also IfeanyiChukwu (Osondu) Ltd v Soleh Boneh Nig. Ltd (2000) 5 NWLR (pt.656)322 at 366; Thenor Nig. Mechanical Ltd v Ogunbanjo (2000) 1 NWLR (pt.639) 60 at 127
-  Moor, K. Vicarious Liability and its Application in Nigeria (unpublished) A Long Essay Submitted to the Faculty of Law, Benue State University, Makurdi, November, 2011, pp. 5,41
-  See Sharon Paints & Chemical Co. Ltd v Ezenwa (supra)
- The fact that the master can sue the employee to claim indemnity does not support Moor’s view. This is because the right of the master to claim indemnity from the servant is grounded on the latter’s liability for the tort occasioned by him to a third party, in which tort the master had hitherto made good. If the servant were to be totally exonerated from liability as Moor would have us indulge him, then such claim for indemnity from the servant would have been baseless. But as already noted, this is far from being the position of the law in Nigeria and England.
- Ikwue, EA. The Application of the Principle of Vicarious Liability in Nigeria (unpublished) A Project Submitted to the Faculty of Law Benue State University, Makurdi, August, 1999, p.5
- Holdsworth, WS. cited in Mohamud v WM Morrison Supermarkets Plc  UKSC 11 at 5, per Lord Toulson
- Kodilinye, G. & Aluko, O. The Nigerian Law of Torts 2ndedn (Ibadan: Spectrum Law Publishing,1996) p.235; Ogbaegbe, KN. ‘Vicarious Liability of Persons Working in Hospitals: An Appraisable Critique’ (2010) 2 pt.2 Confluence Journal of Private and Property Law p.42
- I.C.I. Ltd v Shatwell  A.C 656 at 686; Mohamud v WM Morrison Supermarkets Plc (supra) at 12
- Abdulkarim, I. ‘The Philosophy Behind the Concept of Vicarious Liability (2007-2009) 2 & 3 Journal of Private and Comparative Law p.76
-  See the Interpretation Act CapI23 Laws of the Federation of Nigeria, 2004 Section 32(1)
- Ghandi, MB. cited in Abdulkarim, Op cit p.82
- Mersey Docks and Harbour Board v Coggins& Griffiths (1947) AC. 1 at 8
- See Mohamud’s case (supra) at 6
- Kodilinye & Aluko, Op cit p.235; Ogbaegbe, Op cit p.42
- Abdulkarim, Op cit p.83
-   UKHL 56; 2 ACI (“the Christian Brother Case”) at 11; Cox v Ministry of Justice UKSC10 at 7; See also Bell, J. ‘ The Basis of Vicarious Liability ’ (2013) 72 Issue 01 The Cambridge Law Journal p.18
-  See Cox v Ministry of Justice  UKSC 10 at 7-8, per Lord Reed.
- See Mohamud v WM Morrison Supermarkets Plc (supra) at 1; Cox v Ministry of Justice (supra) at 6
- Cox v Ministry of Justice  UKSC 10 at 6, per Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agreed)
-  See Iyere v B.F.F.M Ltd (supra) at 329
- Okechukwu v Anigbogu (1973)3E.C.S.L.R 159
- SeeOmrod v Crossville Motor Services Ltd1WLR 1120 at 1122, per Lord Denning; Akinsanya v Longman  3 NWLR (pt.436) 303 at 313; Garba v Gaji  FWLR (pt.84) 1 at 7, per Mukhtar, JCA; Odebunmi v Abdullahi  2 NWLR (pt.489) 526 at 529
- Abdulkarim, Op cit p.85
-  See the Partnership Law Cap119 Laws of Benue State of Nigeria, 2004 Sections 10 &13
- See also Cox v Ministry of Justice (supra) at 6
-  See Akinsanya v Longman(supra) at 318
-   FWLR (pt.27) 2046 at 2065, per Ogundare, JSC
- See Obi v Biwater Shellabear (Nig.) Ltd  1 NWLR (pt.484) 722 at 735-736, per Orah, JCA
- Supra at 332; 7NWLR (pt.711) 76 at 86,per Rowland JCA; IfeanyiChukwu Ltd v Soleh Boneh Ltd  FWLR (pt.27) 2046 at 2065, per Ogundare, JSC; Afribank (Nig) Plc v Shanu  7NWLR (pt.514 )601 at 635- 636
- IfeanyiChukwu Ltd v Soleh Boneh Ltd (supra) at 2065, per Ogundare JSC
- Cox v Ministry of Justice (supra) at 6; Mohamud v WM Morrison Supermarkets Ltd (supra) at 2
- CapL1 Laws of the Federation of Nigeria, 2004 Section 91
-  An employer is variously referred to as a master. Though the latter term is old fashioned, gives the notion of slavery, and there is a tendency to abandon its use, both terms may be used interchangeably in this study.
- See also the Employee’s Compensation Act, 2010 Section 73
- CapL1 Laws of the Federation of Nigeria,2004 Section 91
- See also Shena Security Co. Ltd v. Afropak (Nig) Ltd 18 NWLR (pt.1118)77 at 94; Iyere v B.F.F.M Ltd  18 NWLR (pt.1119) 300 at 325-326
-  The term ‘employee’ is variously referred to as servant, worker, or workman and may be so used in this study
-  See also the Employee’s Compensation Act, 2010 Section 73
-  The Labour Act, Cap L1 Laws of the Federation Nigeria, 2004 Section 91 defines a contract of employment as any agreement, whether oral or written, express or implied whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.
- See also Shena Security Co. Ltd v Afropak (Nig) Ltd (supra) at 94; Iyere v B.F.F.M Ltd (supra) at 325-326
- See Union Bank Nig. Ltd v Ajagu (1990)1 NWLR 328 at 343
- See Stevenson, Jordan and Harrison Ltd v MacDonald and Evans (1952)1 TLR 101, Lord Denning L.J
- See Performing Right Society Ltd v Mitchell & Broker (1924)1 KB 762 at 767,per McCredie J
- See B.P.E (Nig) Ltd v Roli Hotels Ltd  All FWLR (pt.314) 238 at 277, per Ngwuta, JCA
- Supra at 276, per Amaizu, JCA
- See B.P.E (Nig) Ltd Roli Hotels Ltd (supra) at 276; Various Claimants v Catholic Child Welfare Society  UKHL 56; 2 AC
- See Lister v Hesley Hall Ltd  UKHL 22;  AC 215; Dubai Aluminium Co. Ltd v Salaam  UKHL 48;2 AC 366, per Lord Nicholls; Bernard v Attorney-General of Jamaica  UKPC 47; Brown v Robinson UKPC 56; Majrowski v Guy’s & St. Thomas’s NHS Trust  UKHL 34;  1 AC 224
- This phrase seems to have been first used by Lord Cullen in the English case of Central Motors (Glasgow) Ltd v Cessnock Garrage & Motor Co. 1925 SC 796. It was followed by the United Kingdom Supreme Court in the most recent case of Mohamud v WM Morrison Supermarkets Plc  UKSC 11
- See Mohamud’s case (supra) at 12; plumb v Cobden Flour Mills Co. Ltd  AC 63;
- In Mohamud v WM Morrison Supermarkets Plc (supra) at 12, the United Kingdom Supreme Court, per Lord Toulson held to the effect that the phrase ‘within the field of activities’ conjures a wider range of conduct than acts done in furtherance of employment.
-  All FWLR (pt.676 )497 at 532, per Ndukwe Anyanwu, JCA
- See also N.BN Ltd v T.A.S.A Ltd (1996) 8 NWLR (pt.468) 511; U.B.N Ltd v Ajagu (1990) 1 NWLR (pt.126) 328; Awachie v Chime (1990)5 NWLR (pt.150) 302; Afribank (Nig) Plc v Adigun 11 NWLR (pt.1152 ) 329 at 349
- See Iyere v B.F.F M Ltd (supra)
- Iweoha, PI. ‘Master and Servant Relationship: Scope and Application of the Doctrine of Vicarious Liability in Nigeria’ (2010) 4 N0.1 Nigerian Journal of Labour Law and Industrial Relations p.17
- Plumb v Cobden Flour Mills Co. Ltd (supra) per Lord Dunedin
- Cox v Ministry of Justice (supra) at 11, per Lord Reed
- See also Ese, M. Law of Tort (Lagos: Princeton Publishing Co.,2008) p.300
- Ese, M. Ibid pp.300-301
- Oxford Dictionary of Law, Martin, EA & Law, J (eds). 6thedn (New York: Oxford University Press Inc., 2006) p.299
- Black’s Law Dictionary, Garner, BA (ed). 9thedn (Minnesota: West Publishing Co., 2009 ) p.1258
- Interpretation Act CapI23 Laws of the Federation of Nigeria,2004 section 18
- Alschuler, AW. Cited in Iyidiobi, CN. ‘Rethinking the Basis of Corporate Criminal Liability in Nigeria’ (2015) 13 The Nigerian Juridical Review p.107
- Supra at 2081, per Onu, JSC
- See also Iyere v B.F.F.M Ltd 7 NWLR (pt.711)76 at 86, per Rowland, JCA
- Erhaze, S. & Momodu, D. ‘Corporate Criminal Liability: Call for a New Legal Regime in Nigeria’ (2015) 3 N0.2 Journal of Law and Criminal Justice p.65
- See Moore v Bresler Ltd  2 All ER per Stable, J
-  See the Corporate Manslaughter and Corporate Homicide Act, 2007 sections 1 & 9
- See R v Cotswold Geotechncal Holdings Ltd 1 Cr. App; R v JMW Farm Ltd NICC 17;R v Murray NICC 15; R v Princes Sporting club  Westminster Crown Court, 375;R v Pyranba Mouldings Ltd EWCA Crim. 533
- Iyidiobi, Op cit pp.116-117
- The Corporate Manslaughter Bill, 2010
- In Nigeria, such statutes include but not limited to, the Consumer Protection Council Act CapC25 Laws of the Federation of Nigeria,(LFN)2004 section 9(2); the Companies and Allied Matters Act CapC20 LFN,2004; the Food and Drug Act CapF32 LFN,2004; the Standard Organization of Nigeria Act CapS9 LFN,2004; the Weight and Measures Act CapW3 LFN,2004; the Federal Environmental Protection Agency Act CapF10 LFN,2004; the Failed Bank (Recovery of Debts) and Financial Malpractice in Banks Act CapF2 LFN,2004, etcetera.