THE NITTY GRITTY OF VICARIOUS LIABILITY



            In a suit of proceeding before a court
of law, where the plaintiff makes dear that a master – servant relationship
exists between the defendant and his employees, the court would hold the
employers vicariously liable for the wrong done by the defendant (employee).
This research work hence will elucidate the doctrine of vicarious liability,
its meaning and purpose.
            In the common law tradition, the
master has as his duty, not just taking reasonable care for the safety of the
servant, but also accepting liability for the acts or omissions of such
servants arising from the contract of employment. The master or employer may be
liable either because he instructed the servant or employee to involve in the
said action resulting in his (employer’s) perils or the servant mistakenly did
the wrong on the verge of performing his duties.

            This doctrine surfaces only
when/where a master-servant relationship is involved and where the servant
commits a wrong or a tortuous act, the master answers. This doctrine is not
dependant on the employer having knowledge of the wrong but on the fact that it
was committed by the employee in the course of carrying out his duties under
his contract of employment.
            A lot of juristic voices and ink has
indeed been poured in an effort to either justify or explain this doctrine.
            In Duncan, V. Findlater, Lord
Brougham said: “The rule of liability and its reason, I take to be this: I am
liable for what is done for me and under my orders by the man I employed, for I
may turn him off from that employed when I please; and the reason that I am
liable to this, that by employing him I set the whole thing in motion, and what
he does, being done for my benefit and under my direction, I am responsible for
the consequence of doing it.
            In Swanson V. North-Eastern Railway
company, Bramwell L.J said a master is liable for an injury done to a stranger
by his servant within the scope of the latter`s authority “because the stranger
has had no hand in the choice of his servant. Below are some instances in which
the doctrine can be applied
1)         When a servant wrongful act is deemed
to be in the course of his employment if it is either a wrongful act authorized
by the master or wrongful and authorized mode of doing some act authorized by
the master.
-N.B.N. 
V. T.A.S.A. Ltd (1996) 8 NWLR (Pt 468) 511 at 513 CA
2)         A diver of a petrol lorry, whilst
transferring petrol from his lorry to an underground storage tank at a garage,
struck a match in order to light a cigarette. He then threw the match on the
floor, and an explosion ensued. He was doing that which he was employed to do,
namely, to deliver petrol, although he was negligent in the manner in which he
was performing his work. The employers were nonetheless held liable.
Century insurance co-Ltd V. Northern
Ireland Road transport Board (1942) AC 509, (1942) 1 All ER 491  
3)        Where,
however an employee uses excessive zeal or violence, this may take the act
outside the scope of his employment. Where, for instance, a garage attendant
had a violent alteration with the plaintiff who was a customer and committed an
assault on him, it was held that such acts must be outside the scope of the
employee’s employment. It was further ruled that the act was, in fact, in pursuit
of a personal vendetta.
-Warren V. Henley’s Ltd (1948) 2 All ER
935.
It
is pertinent to note that in an action for vicarious liability, the plaintiff
must establish that the relationship of master and servant exists and that the
servant is liable for the wrongful act. Also, the servant has to be joined as a
party to a suit against his master. If the servant is not joined in the action,
the action is incompetent ab inito.
 Beyond every reasonable doubt, it has been
proven that where an employer-employee, or master-servant relationship is
established the employer bears liability for the wrongful acts of his employee.
Staff and employees are hence, urged to be courteos, and careful in carrying
out their duties. They must refrain from all forms of fraudulent act, abstain
from any act repugnant to natural justice, equity and good conscience. By so
doing, unnecessary court cases and the rigours of the court room sessions will
be avoided, thereby preserving the positive image of the corporate body or
agency and elevate the said industry to glorious heights.
                                                                         
Contributed by Justice
.O. Nwaneri.
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