Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency, respondeat superior which is the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the right, ability or duty to control the activities of a violator.
A servant is any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and direction of his employer. A servant is a person engaged to obey his employer’s orders from time to time. An independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and time of doing it, he is bound by his contract, but not his employer’s orders.
A master is a specie of a principal. All masters are principals, but all principals are not necessarily masters. A principal becomes a master only if his control of the physical conduct of his agent is sufficient.
The control test in master and servant relationship is determined by the nature of the task undertaken, the freedom of action given, the magnitude of the contract amount, the manner in which it is paid, the power of dismissal, and the circumstances under which the payment of the reward may be withheld and ultimately, the nature and degree of detailed control over the person alleged to be a servant. Performing Rights Society v. Mitchell & Booker Ltd. (1924) 1 KB 762.
A master will be held liable for the tort of his servant when the tort complained about is committed by his servant in the course of employment.
For the court to determine whether a servant committed a tort during the course of his employment, the following factors are always considered:
A master does not escape liability by forbidding the servant from doing wrongful act, otherwise every employer or master will simply deny responsibility by prohibiting all kinds of wrong doing, negligence, mistake and so on connected with the servant’s work. Consequently, disobedience of express orders of the master does not take a servant outside the course of his employment to enable a master evade liability. However, the existence of a master’s express prohibition is a factor to be taken into account when determining the liability of a master. Prohibition by a master may be classified into two. First is a prohibition which limits the scope of employment. This is a job specification and description limiting the scope of employment. If a servant goes outside its limit, he is on a frolic of his own and the master may be relieved of liability. The second kind of prohibition is one limiting the manner of carrying out the performance of a job. This is a prohibition which only specifies the manner of conduct of the servant which if the servant does not comply will not relieve the master from any liability.
An independent contractor is a person who agrees to carry out or perform a specific duty or task or to produce a specific result for a fee and who in the performance of his work or duty is not subject to the direct control of his employer and is entitled to use his discretion in the mode and method of carrying out or performing his work.
The general rule is that an employer is not liable for the torts committed by an independent contractor because an independent contractor is not subject to the direct control of his employer. However, there are exceptions. An employer will be liable for the torts committed by an independent contractor where: a. The independent contractor was expressly authorized or contracted by the employer to commit a tort or an illegality. b. Where the independent contractor commits a strict liability tort, such as, under the rule in Rylands v. Fletcher. In such a case, the employer will nevertheless be liable notwithstanding the fact that no negligence was imputed to the independent contractor. c. Where the master orders his driver to drive fast or overtake other drivers and a tort is committed in the process.
In the past it was believed that a master was not liable for the fraud, theft or crime of his servant especially when such wrongful act was undertaken solely for the servant’s own benefit and not for his employers. An employer is however now liable for the fraud and theft of a servant committed in the course of his employment. It is irrelevant that the servant did the particular act for his own purpose or benefit. However, the master will only be held liable if it is proved that the employee has actual authority or apparent authority, to carry out the act during the life and subsistence of the employment. United Africa Co. Ltd. v. Saka Owoade (1955) A.C 130. A master will however, not be liable for the fraudulent act committed by his servant outside the course of his employment.
For a plaintiff to succeed in recovering damages on the principle of vicarious liability where he suffered damages or injury as a result of a tort committed using the defendant’s vehicle, he must prove the following:
Vicarious liability presupposes both the master and servant are joint tortfeasors. Ifeanyi Chukwu Ltd. v. Soleh Boneh Ltd. (2000) FWLR (Pt. 27) 2046.
Vicarious liability is on the condition that the agent did what his principal asked him to do. Murli Nirchandani & Anor. v. Babatunde Pinheiro (2001) FWLR (Pt. 48) 1307. However, a servant doing what was not sanctioned by the master will not exculpate the master so long as the act of the servant was in the course of doing what he was asked to do and in the process, harm was done to the plaintiff.
Vicarious liability must be proved by direct and positive evidence showing agency or authorization. Health Care Products Ltd. v. Alhaji Bazza (2003) FWLR (Pt. 162) 1937.
A plaintiff is at liberty to sue a master and servant, being joint tortfeasors jointly or severally. Ifeanyi Chukwu Ltd. v. Soleh Boneh Ltd. (2000) FWLR (Pt. 27) 2046.
A person procuring an independent contractor to do some work will not be liable for the negligence or other tort committed by an independent contractor. This is because an independent contractor undertakes to produce a given result without being under any order or control of the person for whom he does it and may use his discretion on things not specified beforehand. Health Care Products Ltd. v. Alhaji Bazza (2003) FWLR (Pt. 162) 1937.
A corporate body doing business through branches is vicariously liable as an employer to employee where it is alleged to have negligent, regardless of the branch operated from. It is a flaw in reasoning to regard a branch as a separate entity. Emmanuel Agbanelo v. Union Bank of Nigeria Ltd. (2000) 4 SC (Pt. 1) 233.
A plaintiff can elect to sue either master or servant, separately or jointly. Success against one sued separately is not a bar to an action against the other who would if sued have been a joint tortfeasor in respect of the same damage. Mobil Producing Nig. Unltd. v. Simeon Monokpo & Anor. (2001) FWLR (Pt. 49) 1516.
A master cannot take advantage of immunity conferred on the servant. Being joint tortfeasors, the plaintiff is at liberty to sue jointly or severally. Ifeanyi-Chukwu Ltd. v. Soleh Boneh Ltd. (2000) FWLR (Pt. 27) 2046.
A claim of vicarious liability cannot be determined until the trial hears and determines the liability of the alleged tortfeasor who must be joined as a defendant to the suit or at least called as witness by the claimant. Iyere v. BFFM Ltd. (2001) FWLR (Pt. 31) 1166.
The release of one joint tortfeasor or joint debtor operates as a discharge of the other joint tortfeasors. Releasing a joint tortfeasor is different from excusing a defendant from liability by operation of law. Protection of one of the joint tortfeasor by law does not release the remaining tortfeasor from liability. Okafor & Ors. v. A.G. Anambra State & Ors. (2001) FWLR (Pt. 58) 1127.