What To Know About Employer/Employee Vicarious Liability BY SOBECHI OBASI

 

A trucking company hires a driver to transport goods. While on duty, the driver speeds and crashes into another vehicle. Should the company pay for the damages?

A mechanic working at an auto shop uses the company’s tools after hours to repair a friend’s car. He damages the vehicle. Is the shop liable for his mistake?

Should the employer or the employee be held responsible for a wrongful act done to a third party?

These are questions that show a degree of confusion on who should be held liable when an employee commits a wrongful act. This is where vicarious liability comes into play.

Vicarious liability is a legal principle and an aspect of tort that holds an employer responsible for the wrongful acts committed by an employee in the course of their employment. This means that if an employee negligently or intentionally causes harm to a third party while performing job-related duties, the employer may be held liable for damages.

Following the above statement, if a company hires a driver and instructs them to complete a task, but the driver recklessly causes an accident, the company may be legally accountable for the injury or damage caused. However, this liability only applies if the employee’s actions occurred within the scope of employment and would have otherwise made the employee personally liable.

There are various relationships that may give rise to vicarious liability, such as:

• Employer/Employee
• Parent/Child
• Principal/Agent, and
• Partnerships

However, the focus here is the employer/employee relationship.

The Legal Basis for Vicarious Liability

Vicarious liability as earlier stated is a legal doctrine which extends liability beyond the individual responsible for the wrongdoing to an otherwise “innocent” employer. This principle is grounded in public policy and aims to ensure that victims of workplace-related torts are compensated fairly.
Sir John Holt CJ is an established pioneer in the area of vicarious liability. He declared in Herne v Nicholl [1700] 91 ER 256, that “For seeing somebody must be a loser, it is more reason, that he that employs and puts a trust and confidence…should be a loser rather than a stranger.” This shows that for justice to prevail, somebody must be held to account and in this case it should be the employer by way of vicarious liability.

The doctrine of vicarious liability was introduced into Nigeria through English common law and remains a fundamental part of the country’s legal system. Nigerian courts continue to apply principles of vicarious liability in cases involving workplace-related torts.

There are two key legal principles governing employer liability, which are:

• Qui facit per alium facit per se – “He who acts through another does the act himself.”
  This means that if an employer delegates a task to an employee, the employer is considered to have performed the act themselves.
• Respondeat Superior – “Let the master answer.”
  This principle states that a superior (employer) should be held accountable for the wrongful acts of their subordinate (employee).

These principles are latin maxims that form the basis for employer liability in workplace-related tort cases.

Distinguishing Between an Employee and an Independent Contractor

It is essential to differentiate between an employee (servant) and an independent contractor, as vicarious liability applies only to employees.

• Employee (Servant): Works under the employer’s direct control and supervision. For example, a company driver hired to transport goods is an employee, and the company would be liable for their negligent driving.
• Independent Contractor: Hired to complete a task but has full control over how the work is done. For example, a taxi driver hired to take a passenger to a destination is an independent contractor, and the passenger is not liable for any accidents caused by the driver.

Elements of Vicarious Liability

Legally, the doctrine of vicarious liability holds employers responsible for the wrongful acts of their employees, provided certain conditions are met. This principle is rooted in the idea that an employer, or master, can be held liable for the actions of their employee or servant in the course of employment. For a plaintiff to successfully establish vicarious liability, certain elements must be proven;

• Proof that the employee is liable for the tortious acts
  A key element in vicarious liability claims is proving that the employee is liable for the tort in question. According to tort law, an act committed by a servant is legally assumed to have been executed on behalf of the master. Therefore, if an employee commits a wrongful act during their employment, the employer may be held accountable.
  The case of Young v. Edward Box & Co Ltd (1951) I TLR 789 4, illustrates this principle. A lorry driver, employed by a contractor, gave a lift to an employee of another firm against explicit instructions. When an accident occurred, the injured party sought to sue the employer. The court ruled in favor of the employer, with Lord Denning stating that employer liability hinges on the servant’s liability. If the servant is liable, the next step is determining whether the employer must assume that liability.
• Proof that the act would have been lawful if it was done in the circumstance which the employee mistakenly believed was true or that the act would have been lawful if done properly.
  In some cases, an employer may be held liable for their employee’s wrongful acts, even if those acts arise from mistaken execution of lawful authority. This principle was upheld in Anita Bhandari & Ors. v. Union of India (2003), a bank’s security guard shot a customer under the mistaken belief of a security threat. The court found the bank vicariously liable, reasoning that providing the guard with a firearm authorized him to act when deemed necessary, even if his actions were excessive.

Furthermore, employers may also be held liable for negligent acts committed by employees within the scope of their duties. In Cassidy v. Ministry of Health [1951] 1 ALL. ER 574, a patient suffered complications due to a doctor’s negligence during surgery at a government hospital. The court ruled that the hospital was vicariously liable as the doctor was an integrated part of the institution.

• Tortious Acts Within the Course of Employment
  An employer is only liable for torts committed within the course of employment. The determination of whether an act falls within this scope is complex and fact-dependent. The case of James v. Mid Motors [1978] LLJR-SC established that corporations can be sued for torts committed by employees acting within the scope of their employment and authority.
  For a plaintiff to succeed, they must provide evidence proving that the wrongful act occurred during employment. If an employee acts outside their employment scope, the employer is not liable. This was exemplified in Joel v. Morrison [1934] 172 ER 1338, where the court ruled that an employer is not responsible if an employee is on a “frolic of his own.”

Key Factors in Determining Employer Liability
Courts consider several factors when assessing employer liability, including:

• Express and Implied Authority: An employer is liable if the wrongful act was committed under their express or implied instructions.
• Manner of Work Performance: If an employee performs their duties negligently, the employer may be held liable. In the case of Popoola v. Pan African Gas Distributors (1972) ALL NLR 831, the employees of the defendant gas company were delivering gas cylinders to the plaintiff’s home. While unloading, one of the cylinders caught fire from a lighted cigarette in the hand of another servant. The resultant explosion and fire completely destroyed the plaintiff’s house. The plaintiff sued for negligence and damage. The Supreme Court held that, the servants were negligent in a duty which was within the scope of their employment and the defendant employers were liable.
• Time and Place Limitations: Employers are generally liable for torts committed within work hours and at the workplace. It should be noted also that an employee or servant who goes outside or beyond the express or implied place or course of his duty to engage in an act that is:
  a) For his own benefit; or
  b) For the benefit of a third party is on a business of his own or he is on a FROLIC of his own.
• Express Prohibitions: Employers may limit liability through explicit job scope restrictions. However, if an employee violates a rule governing conduct rather than employment scope, liability may still apply. The distinction was highlighted in Jarmakani Transport Ltd v. Abeke (1963) ALL NLR 180, where an employer was not liable for an accident caused by a driver who defied a company policy against carrying passengers.

Employers Defenses Against Vicarious Liability

• Employee Acting on a Frolic of His Own: The employer may assert that the employee committed the tort outside the scope of employment, thereby absolving the employer of responsibility.
• Disclaimer Defense: If the alleged wrongdoer was no longer an employee at the time of the tort, the employer may provide evidence of termination and public notices, such as a newspaper disclaimer, indicating that the individual was no longer in service.
• Acts of Independent Contractors: Employers are generally not liable for the acts of independent contractors unless exceptions apply.
• Third-Party or Stranger Actions: If the tortious act was committed by a third party over whom the employer had no control, liability may not be established.

Remedies Available to Plaintiffs
Plaintiffs seeking redress for vicarious liability can primarily claim damages—monetary compensation to restore them to the position they were in before the tort occurred.

• Joint and Several Liability: If a plaintiff successfully proves that the employer is responsible for the actions of an employee, both parties may be held liable, though the employer typically bears the financial burden.
• Injunctions: Courts may issue equitable remedies, compelling the employer to take specific actions or refrain from certain conduct.
• Specific Performance: This remedy applies in cases involving the wrongful dispossession of goods, requiring the return of the property to its rightful owner.

Furthermore, an employer found vicariously liable may seek compensation from the responsible employee through indemnity claims—recovering damages paid to the plaintiff. Indemnity involves a contractual obligation where one party compensates another for losses incurred due to specific actions.
In severe cases of employee misconduct, employers may also terminate or discipline the employee.

Conclusion
Vicarious liability is a tort principle which balances employer accountability with economic considerations. Courts assess liability based on multiple factors, ensuring that businesses are not unfairly burdened while also protecting victims of employee negligence. Ultimately, whether an employer is held liable depends on the specific circumstances of each case.

This principle is a crucial in the legal framework because it ensures fair compensation for victims of workplace-related torts. While it imposes a harsh rule on employers, it is justified by the principles of control, financial responsibility, and public policy.

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REFERENCES

1. Akintunde, E., Nigerian Labour Law (Emiola (publishers) Limited, 2000).
2. Ese Malemi, Law of Tort (Princeton Publishing Company, 2013)
3. Kodilinye and Aluko. The Nigerian Law of Torts. Spectrum Books Limited. (2018)
4. Uvieghara, E.E., Labour Law in Nigeria (Malthouse Press Limited, 2001).
5. “Cassidy v Daily Mirror Newspapers” (LawTeacher) <Cassidy v Daily Mirror Newspapers > Accessed on 5 February 2025.
6. “Vicarious Liability in case of Master-Servant Relationship in Tort Law” (iPleaders)
7. <https://blog.ipleaders.in/vicarious-liability-case-master-servant-relationship-tort-law/> Accessed on 5 February 2025.

 

 

Sobechi Obasi is a first class Law graduate of Bowen University Nigeria, and writes from Abuja