VICARIOUS LIABILITY

PREPARED BY MS. JULIA FARHANA BINTI ROSEMADI

What is vicarious liability?

 Definition
Vicarious liability is a situation where an employer is
responsible for damages caused by the torts of his
employees acting in the course of employment.
 Strict liability
 Joint liability
Reasons for vicarious liability

 Since the employer takes benefit from the

employee’s activities, he should be responsible for
any harm done;
 The employer is in better financial standing – he is
often insured, thus best to absorb loss;
 The doctrine secures actual compensation to the
tort victim;
 Encourages higher standards of safety
Elements of Vicarious liability

1. The tortfeasor must be an employee of the

master
2. The employee must have committed a tort
3. The tort must have been committed in the
course of employment
Who is an employer?
Who is an employer?

 An employer is the person who has the right to hire and fire.
 Case: Mariasusai s/o Suminader v Nam Hong Trading Co Ltd
& Anor [1975] 2 MLJ 271
 The plaintiff suffered injuries in his left eye whilst he was milling
rubber cuplumps on a machine when some substance
which came off the roller flew into his left eye.
 Held: The defendant was the plaintiff’s employer as he had
complete control over hiring and dismissal of the labour
force, including the plaintiff.
Element 1: The tortfeasor must be an
employee of the master

 There must be a special relationship between

defendant and the tortfeasor.
 Employer and employee relationship.
 The special relationship is dependent on
whether it is a contract of service or contract for
service.
Tests used in determining ‘special
relationship’

 Control test
 Organization test/Integration test
 Multiple test
Test 1: Control test

 Case: Short v J & W Henderson Ltd [1946] 62 TLR 427 at 429

 4 factors in determining the existence of contract of service
i) Power of selection by employer
ii) Power in determining salary and remuneration
iii) Power or right of the employer to control the method of
work
iv) Power and right of employer to terminate the employee
services
Case: Collins v Hertfordshire County
Council

 The plaintiff’s husband died as a result of lethal dose injection of

cocaine by the operating surgeon. Mr. H believes that he was
injecting an anaesthetic dose of procaine instead of cocaine. The
mixture was ordered by Mr. H in a telephone conversation with the
resident house surgeon, Ms. K who misheard the instruction. She
then told the pharmacist to dispense the dose. Without further
enquiry, the pharmacist dispense the dose, and Mr. H without
checking, inject the dose to the plaintiff’s husband. The plaintiff
claimed that the county council was vicariously liable for the
negligence of their employees.
 Held: The contract of service existed if the employer had the power
to instruct the employee and to control the method of the work
done by the employee.
Further reading

 Wu Siew Yong v. Pulau Pinang Clinic Sdn Bhd & Anor

[2011] 1 CLJ 255 HC
 Maslinda bt Ishak v Mohd Tahir binOsman & Ors (2009) 6
MLJ 826
 Bata Shoe Company (Malaysia) Ltd v. Employees
Provident Fund Bhd (1967)
Test 2: Organisation Test

Cases: Stevenson, Jordan and Harrison Ltd v MacDonald and

Evans [1952] 1 TLR 101 at 111
 This test consider to what extent the work of so called
employee is integrated with the work of the employer’s
business or organization.
 An employee is whose work is an integral part of the business
whereas an independent contractor is someone who would
work for a business but as an ancillary or accessory rather
than an integral part of the business.
Case: Mat Jusoh b Daud v Syarikat
Seberang Takir SB

 Held: Since the wages and number of logs to be

sawn were determinable by the defendants, the
plaintiff was the employee of the defendants,
where the plaintiff’s work was an integral part of
the defendant’s part.
 An employer must take reasonable care towards
his employees so that his employees are not
subjected to unnecessary risks in order to ensure
effective system of work.
Case: Lian Ann Lorry Transport and
Forwarding Sdn Bhd v Govindasamy

 Federal Court:
 "the law will imply the existence of such relationship where a person
is hired by another as an integral part of the latter’s business. The
circumstances of this case clearly show that there was a contract
of service between the appellants and the respondent because
the respondent was employed as part of the appellants’ transport
business. Besides, the term of the employment being that the
respondent was placed on a temporary basis at a daily wage of
$15.00 per day until he would eventually be absorbed into
permanent service or otherwise have his employment terminated.
Thus, it is clearly the respondent was an employee.”
Multiple test

 Common sense approach

 Case: Ready Mixed Concrete Ltd v Min of Pensions &
National Insurance [1968] 2 QB 497
 The plaintiff, a yard batcher who was working in the
defendant’s company entered into a contract with the
defendant whereby the plaintiff was required to carry
concrete under a scheme of delivery. Issues arose when
the defendant company was not paying national
insurance contributions on the plaintiff’s behalf under
the National Insurance Act 1965.
Cont…

 Factors considered:
 The plaintiff was paid for his services based on mileage at an agreed rate;
 The plaintiff is obliged to wear the defendant’s company uniform and
comply with the rules and regulations;
 the lorry had to be maintained by the plaintiff at his own expense;
 The plaintiff is required to put the defendant’s company colour on his truck
and could only use the lorry for the defendant’s company purposes;
 pay all the running cost and to employ a driver at his own account if he is
unable to drive.
Factors need to be fulfilled before
contract of service is established.

i)The employee or servant agrees that he will use his own

expertise and the employer pays him either in monetary
form or in any other form of remuneration;
ii) The employee or servant agrees, whether impliedly or
expressly, that he will be bound by the employer’s
instruction and thus reflective of the employer-employee
relationship;
iii) All other conditions in the agreement are consistent
with the nature of the job, which is a contract of service.
Judgment

 The Court held the nomenclature clause used in

the contract between the plaintiff and
defendant is irrelevant as the employer
employee relationship is based on contractual
rights and duties.
Other Tests used

Case: Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11

Issue: Whether a reasonable observer would consider the employee
to be acting in the capacity of a representative of the employer, at
the time of committing the unlawful act?
Tests used:
A) Whether the wrongful acts were so closely connected with the
employment that it would be just to held the employer liable?
B) Was the act within the ‘field of activities’? Nature of the job
“He had not metaphorically taken off his uniform when he stepped
out of the counter.”
Other Tests used

 Case: Cox v Ministry of Justice [2016] UKSC 10

 Conditions:
 1)The harm must be wrongfully done by the person
carry on activities as an integral part of the business or
operation carried on by the defendant and for its
benefit;
 2) The risk of the wrongful act being committed must
have been caused by the defendant by assigning
those activities to the person in question.
Judgment

 Supreme Court: The work done by the prisoner in a

prison kitchen forms an integral part of the operation of
the prison. They are working for the benefit of the prison
not for the benefit of their own or anyone else.
 The risk to negligently injure someone else in the kitchen
is one created by the prison service who assigns
prisoners to work there.
 The Ministry of Justice is therefore liable for the fault of
the prisoner.
Element 2: The employee must have
committed a tortious act

 Imperial Chemical Industries v Shatwell (1965)

 Held: The act of two brothers who decided to
test explosive charges using a short length wire
which later resulted in injuries did not amount to
vicarious liability based on the grounds of
volenti non fit injuria.
.
Element 3: The tort must be committed
in the course of employment

a) Carelessness of worker in the performance of his job.

 Employer may be held liable if the employee is careless
in his job (authorised work)
 Case: Century Insurance Co Ltd v northern Ireland Road
Transport Board [1942] AC 509, HL
 Held: The employer is liable for vicarious liability as the
negligent act of his employee was done in the course
of employment
Cont…

 Case: Mohd Yeanikutty v Far East Truck Inc

Manufacturing (Pte) Ltd [1984] 2 MLJ 91
 The plaintiff, a mechanic employed at the defendant’s
workshop and another employee were sent to repair a
machine lift factory. The plaintiff’s hand was crushed
based on his own negligence and sued his employer for
vicarious liability.
 Held: The plaintiff was found to be contributory
negligent but the defendant was found to be partly
liable due to the other worker negligence.
Cont…

 Case: Lim Ah Tong v Ang Yau Chee & Anor [1969] 2 MLJ
194
 Held: Even though the first defendant (employee) was
careless in driving, since the journey was for the benefit
of his employer, the second defendant (employer) was
held liable for vicarious liability.
(b) Mistake of worker

 Doing something authorised in an authorised manner

 Bayley v Manchester, Sheffield and Lincolnshire Rly
[1873] LR 8 CP 148
 Held: The employer was vicariously liable for the act of
the employee who pulled out a passenger on a
mistaken belief that the passenger was on the wrong
train.
(c) Sexual acts committed y the
employee

 Lister v Hesley Hall Ltd [2001] 2 All ER 769

 The employer was held liable for the sexual acts
committed by the warden to the boys in a residential
school.
(d) Tort committed in protection of
employer’s property

 If a employee had committed a tort to protect the employer’s

property, the employer may be held vicariously liable.
 However, the employer may escape liability if the act of employee
is excessive.
 To determine whether the act of employee is excessive or not
depends on question of degree and fact.
 Case: Polar v Parr & Sons [1927] 1 KB 236
 The employer was held liable for vicarious liability even though the
employee’s act was considered as excessive because the act of
the employee was held to be within the scope of employment.
(e) Worker delegating his responsibility

 If an employee delegates his work to a third party, generally an employer

would not be held liable for vicarious liability if a third party commits a tort.
 Case: Ilkiw v Samuels [1963] 1 WLR 991
 A lorry driver allowed a 3rd party to drive a lorry without checking on his
competence. In the course of doing so, the third party injured the plaintiff.
The plaintiff sued the lorry driver’s employer under vicarious liability.
 Held: The employers were held vicariously liable for the negligent act of
the lorry driver in permitting the third party to drive. This was an improper
manner of performing his duties because the lorry driver was employed
not only to drive the vehicle but to be in charge of the vehicle.
 Contrast it with the case of Beard v London General Omnibus (1900)
 (f) Worker acting for his own benefit
(frolics)

 Frolics is defined as entirely new ad independent journey

which has nothing to do with the course of employment.
 Employer will not be liable if an employer is acting under
frolics
 Case: Storey v Ashton [1869] LR 4 QB 476
 Held: The driver was not acting on the course of
employment. It was a new and independent journey which is
entirely for his own business, therefore the employer is not
liable.
Joel v Morrison [1834] 6 C & P 501 at
503

“If he was going out of his way, against his master’s

implied commands when driving on his master’s business,
he will make his master liable; but if he was going on a
frolic of his own, without being at all on his master’s
business, the master will not be liable.”
Case: Zakaria b Che Soh v Chooi Kum
Loong & Anor [1986] 1 MLJ 324

 Held: Even though the purpose of the trip had

nothing to do with his employer, but it was
something reasonable or necessary, thus the
accident occurred in the course of
employment.
(g) Prohibitions by employer

 Rule: An act will be within the course of

employment even though it has been expressly
forbidden by the employer, but in order for it to
be so, the act must be related to his job, and it
is done for the benefit of the employer.
Case: Limpus v General Omnibus Co
[1862] 1 H & C 526

 Held: The driver’s employers were held liable as the act

of the driver obstructing the bus, although it was clearly
forbidden, amounted to doing an authorised act but in
an improper and unauthorised manner.
Iqbal v London Transport Executive
[1973] EWCA Civ 3

 Held: The act of the bus conductor driving a bus

despite an express prohibition, is outside the
course of employment and thus the employee
himself is personally liable.
Rose v Plenty [1976] 1 All ER 97

Mr Plenty is a milkman under the employment of Co-

operative Retail Services Ltd. His employer expressly
prohibits his employee from employing children and
young persons to perform their duties. Despite that, Mr.
Plenty engaged Rose to collect and deliver milk and in
exchange was paid small wages. Unfortunately Rose
suffered from a fractured leg as a result of Mr. Plenty’s
negligent driving.
Held: Although prohibited, it was conducted during the
course of employment, with Rose furthering the
employee’s duties
Twine v Bean’s Express Ltd [1946] 175 LT
131

Held: The employer was not held vicariously liable

as giving free lifts was not part of the job that the
employee was employed to do. Therefore, the
employee was acting outside the scope of
employment.
(h) Fraud of the worker

 Case: Lloyd v Grace, Smith & Co [1912] AC 716, HL

 Clerk fraudulently transferred some of the plaintiff’s
property into his own name.
 House of Lords: The employers were vicariously liable as
the clerk’s act is within the scope of apparent or
ostensible authority given by the employer.
(i) Commission of theft by the
employee

 Case: Morris v CW Martin & Sons Ltd [1965] 2 All ER 725

 The act of the defendant’s employee of stealing a mink
coat in which the plaintiff had sent to be cleaned
amounted to vicarious liability.
(j) Time and its relevance in
determining ‘course of employment’

 Authorised working hours = within scope of employment

 For tort committed outside the premises of the employer
1) Workmen’s Compensation Act 1952
Section 4 (1) (b) – an employee is deemed to be in the course of
employment if the employee is travelling to or from work in a vehicle
operated by or on behalf of his employer.
2) Employees’ Social Security Act 1969 (SOCSO 1969)
Section 24(1)(a) - An employee who is travelling to or from work is deemed
to be in the course of employment.
Cont…

3) Employee not subjected to WCA 1952 or SOCSO 1969

 Common law principles apply
 Travelling to or from his work place is not within the
course of employment
 If travelling under his employer’s instruction, the
employee may be acting under the course of
employment.
 How about taxi drivers?
THANK YOU