WHAT IS EMPLOYER’S VICARIOUS LIABILITY?

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WHAT IS EMPLOYER’S VICARIOUS LIABILITY?

INTRODUCTION

The concept of vicarious liability is largely inherent in an employer-employee relationship or superior-subordinate relationship, where the employee incurs a liability in the course of performing his duties as an employee but instead of bearing the consequences of his own actions his employer bears it. This usually happens where the employee who did the wrong cannot be identified. Vicarious liability is a concept that is referred to as superior respondent in the legal parlance.

In SHARON PAINT & CHEMICAL CO. LTD V EZENWA [2001] FWLR (pt.43) 290 at 312, the 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.

WHEN CAN VICARIOUS LIABILITY BE INCURRED?

Vicarious liability can be incurred where a duty of care imposed on an employer has been broken, but the claimant cannot recognize which employee perpetrated it. An employer, at that point, will not be excused from liability where a specific employee of his cannot be recognized to have been liable for the breach.

VICARIOUS LIABILITY OF AN EMPLOYER.

The principle of respondeat superior is dependent on the employer-employee relationship. The principle makes the employer liable for the lack of duty of care on the part of the employee in relation to those to whom the employer owes a duty of care. Respondeat superior will only be applicable where the employee's negligence exists within the confines of his/her employment. It is essential to ascertain whether the person is an employee of the employer and further decide if such person was working within the scope of his/her employment when the liability was incurred.

One of the rationales for vicarious liability is that the employer decides the nature and extent of an employee's work obligations and has the reins to control how an employee executes tasks within his job responsibilities. In VARIOUS CLAIMANTS V CATHOLIC CHILD WELFARE SOCIETY [2012] UKHL 56, 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.[2] However, where the employee that committed the breach is identified and it is proved that he/she committed the breach then the employer will not be held liable for the actions of the employee.

As earlier stated, for vicarious liability to apply it must first be established that the person is an employee of the employer and secondly, that the act was done in the course of carrying out his/her job obligations. The court in a vicarious liability case would consider the two instances highlighted above. An example is the case of IFEANYICHUKWU (OSONDU) CO. LTD. VS SOLEH BONEH (NIGERIA) LTD (2000) All N.L.R. 604, where the court held that it was not possible for an employer to be held vicariously liable for the actions of his employee in the absence of proof that the employee had been negligent and in the absence of the employee, in this case the driver of the vehicle, that could not be proved. The Supreme Court outlined the elements that must be established for a plaintiff to succeed in a claim for vicarious liability, they are (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. (2000) All N.L.R. 604

Before the court allows vicarious liability to be imparted it will first look for a sufficiently close relationship between the tortfeasor and third party. For instance, in an employer – employee relationship, the relationship that exists is contractual and solely subject to the control of the employer. Therefore, the court would in this case impart vicarious liability having considered the elements as outlined in the case of IFEANYICHUKWU (OSONDU) CO. LTD. VS SOLEH BONEH (NIGERIA) LTD.(supra)

An employer will not be responsible for the employee's wrongdoing except if it happened within the extent of his/her work or was a logically predictable result of that job responsibility.

CONCLUSION

Flowing from the above vicarious liability is a concept to be familiar with in order to avert possible future liabilities by employers. Employers should be very careful in mapping and drafting work rules for employees especially ones that are logically forseeable. In as much as the rationale for an employer’s vicarious liability sounds tenable caution should also be exercised by employee’s to avoid unnecessary litigations against the employer and monetary incurability.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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