VICARIOUS LIABILITY

The Nature and Basis of Vicarious Liability

 Introduction
▪ For present purposes, the law divides employed persons into two groups: (1)
Those employed to perform services in connection with the affairs of the
employer and who are engaged on a contract of service. In tort, we call such
persons ‘employees’. (2) Those who do work for another, but who are not
controlled by that other in the performance of that work.
▪ Normally, such work will be carried out in pursuance of a contract for services.
In tort law, such persons are referred to as ‘independent contractors’.
▪ The distinction between employees and independent contractors is fundamental.
If an employee commits a tort in the course of his employment, or in the doing
of something that has a sufficiently close connection to his employment, his
employer will be vicariously liable for the tort regardless of whether he himself
has committed a tort: ‘every act which is done by a servant in the course of his
duty is regarded as done by his master’s orders, and consequently is the same as
if it were the master’s own act’
 The aspect of Control
▪ If the person who causes injury or loss is not an employee, then the
‘employer’ cannot be held liable unless he himself has (1) acted in a
way so as to be treated as a joint tortfeasor or (2) breached a non-
delegable duty owed to the claimant
▪ The justification for vicarious liability is that if there were no vicarious
liability, the employer’s incentive to minimise the risks created by his
activity would be reduced.
▪ Vicarious liability generally arises from a contract of service (“servant”)
but not from a contract for services (“independent contractor”) it is
necessary to determine the indicia of a contract of service
▪ The employer must have some control. “The significance of control is
that the employer can direct what the employee does, not how he does
it”
 Control cont’d
▪ In Short v J&W Henderson Ltd (1946) 62 T.L.R. 427 at 429, Lord
Thankerton said that there are four indicia of a contract of service: (1) the
employer’s power of selection of his servant; (2) the payment of wages or
other remuneration; (3) the employer’s right to control the method of
doing the work; and (4) the employer’s right of suspension or dismissal
▪ It should be, however, noted that this criterion is not satisfactory.
▪ Nowadays, working patterns have changed so much that it is difficult to
slot employment relationships into the traditional analytical framework of
control. For example, many more employees work at home these days, or
possess some technical skill which is often not possessed by their
employers.
▪ In consequence, the control test does not by itself prove adequate on every
occasion.
▪ The control test, however, remains helpful in some instances, and in
deciding whether enough ‘control’ is exercised over another to make him
an employee one must take into account several factors, no single one of
which is conclusive
 Control cont’d
• The criteria includes the extent to which the employer can control the
details of the work, whether the method of payment is on a time or a job
basis, whose tools, equipment, and premises are to be used, the skill called
for in the work, the freedom of selection of labour by the employer, and
the power to dismiss
• In Stevenson, Jordan & Harrison Ltd v MacDonald and Evans [1952]
1 TLR 101, at 111, Lord Denning stated as follows: “…It is often easy to
recognise a contract of service when you see it, but difficult to say
wherein the difference [between a contract of service and a contract
for services] lies. A ship’s master, a chauffeur, and a reporter on the
staff of a newspaper are all employed under a contract of service; but
a ship’s pilot, a taxi-man, and a newspaper contributor are employed
under a contract for services. One feature which seems to run through
the instances is that, under a contract of service, a man is employed as
part of the business, and his work is done as an integral part of the
business; whereas, under a contract for services, his work, although
done for the business, is not integrated into it but is only accessory to
it…”
 Personal investment in the enterprise
▪ Another approach to the central issue of who is an employee is to ask:
‘Is the worker in business on his own account? See for example Lee
Tin Sang v Chung Chi-Keung [1990] 2 AC 374
▪ In answering this question the courts will look at who owns the tools
used, who paid for the materials, and whether the worker stands to
make anything from a profit to a loss on completion of the enterprise.
▪ Thus, where a building worker is simply paid, and neither hires his
own help nor provides his own equipment and has no say in the
control of the site, his position will be that of an employee rather than
an independent contractor
▪ The intention of the parties, recorded in the terms of their agreement,
can also provide a useful guide as to whether there is a contract of
service or a contract for services
 Carelessness of the servant
▪ The employer will still be liable provided that the servant is not “on a
frolic of his own”
▪ Whether the servant is on a frolic of his own will depend on the particular
nature of the employer’s business and the task which the servant is
required to discharge.
▪ If bailed goods have been entrusted by the employer to the care of his
servant and the servant negligently damages them, his employer will be
vicariously liable to their owner, for the servant has done carelessly what
he was employed to do carefully, namely, to look after the goods.
▪ For this purpose it makes no difference that the servant at the time of his
negligence was using the goods improperly for purposes entirely of his
own, as, for example, if he uses a car, bailed to his employer and
entrusted to his care, for taking his friends for a ride, and then negligently
damages the car in an accident
 Employer and independent contractor
▪ The general rule is that an employer is not responsible for the torts of his
independent contractor
▪ However, in some cases the employer is responsible for damage caused by his
contractor’s fault even though there is no authorisation or misconduct on the
employer’s part
▪ The conventional analysis is that in these cases the employer is liable not
vicariously but because he was in breach of some duty which he himself owed
to the claimant. In such cases the employer is said to be under a “non-
delegable” duty
▪ For example, if the employer has a duty to take reasonable care, this duty is not
delegable and will be held liable. It will be no defence that he had assigned that
task to independent contractors. The duty to take reasonable care is owed to
him, not to the contractors. Remember Rylands v Fletcher? Those who were
constructing the mines were independent contractors
 The Kenyan experience
▪ The same principles that were developed by common law courts
regarding vicarious liability apply to Kenya
▪ In John Nderi Wamugi v Ruhesh Okumu Otiangala & 2 others [2015]
eKLR, the Court of Appeal (Maraga, Musinga and Kairu JJA) held that
“…vicarious liability is a doctrine in the law of torts that assigns
liability for an injury to a person who did not personally cause the
injury but who has a particular legal relationship to the person who
acted negligently. Such liability is not pegged on ownership, but on
the legal relationship, for example between an employer and an
employee…”
▪ Salmond on Torts, 1st ed. Pg 83 states: “A master is not responsible for
a wrongful act done by his servant unless it is done in the course of his
employment. It is deemed to be so done if it is either (a) a wrongful
act authorized by the master, or (b) a wrongful and unauthorized
mode of doing some act authorized by the master.”
 The Kenyan experience cont’d
▪ In Teachers Service Commission v WJ & 5 others [2020] eKLR, the
Court of Appeal (Nambuye, Koome, Sichale JJA) stated that “…The
primary function of the ‘course of employment’ requirement is to
ensure that the employee’s tort is sufficiently linked to the employer’s
enterprise, so as to justify the imposition of liability on the employer.
It thus limits the responsibility of the employer to acts committed by
the employee, acting in their employment capacity, and excludes those
related to personal or private life…”
▪ The court held TSC vicariously liable for sexual abuse of minors by their
teacher, an employee of TSC. Read this very interesting decision
▪ Finally, in Mwona Ndoo t/a Ngomeni Bus Service v. Kakuzi Ltd.
(1982-88) 1KAR 523, it was held that it is the responsibility of an
employer to prove that his servant was acting outside his authority to
absolve the employer from being liable for the negligent acts of the
employee committed by the employee in the course of his employment.
END