Vicarious liabilityDefinition:A rule of responsibility which renders the D liable for the torts committed by another. There must be an employment relationship.Justification:1. Employer to be held liable for employing a negligent employee, for failure to control the employee.2. Since the employer derives benefit from the employees services, he should be made liable for any wrongful conduct of the employee in the performance of his work.3. Deep pocket concept- master is in the better financial standing to compensate 3rd party.ElementsExplanationCaseHeld

First: Employee committed a wrongful or tortious act

A tort e.g trespass, negligence, nuisance has been committed by employee

Second R: Existence of an employer-employee relationship

Distinction between a contract of service (employee)- a special relationship exist and a contract for service (independent contractor)

Contract of service (employee)- The person works as part of the organisation and his work forms an integral part of that organisations.full time lecturer

Contract for service (independent contractor)-Even though he is also done for the organisation, but it is only ancillary and is external factor to the organisation.independent contractor

There are 3 tests to determine this:

Control Test

Difficulty to apply: lack of control of employers over the method in which the work is to be done.

Short v J&W Handerson Ltd.Lord Thankerton: 4 factors to be considered:

i)Employer has a power to select employeeii)Determine salaryiii)Controliv)Power to terminateCollins v Hertfordshire County CouncilContract of service existed if the employer had the power to instruct the employee and to control the method in which the work has to be done.

Organisation test

Difficulty in apply: not being able to present a clear and candid answer in many situations. Contract of service- captain of a ship, driver, journalist. Works as part of the organisation and his work forms an integral part of that organization

Contract for service- ships pilot, taxi driver, contributor to newspaper. Even though the work is done for the organization, it is not integrated into it but is only accessory to it.Mat Jusoh bin Daud v Syarikat jaya Seberang TakirFact: P worked as sawyer at Ds sawmill. P sustained injuries while carrying a log with another co-worker. Consequently D refused his further employment. D contend that P was not their employee but an employee of X who was the contractor of DHeld: Since wages and no of logs to be sawn were determinable by D, the Ps works was an integral part of Ds business and P was therefore Ds employee. D must take reasonable care to avoid from unneccesary risk. D was found vicariously liable for not providing a proper and effective system at work.

Multiple test- common sense approachReady Mixed Concrete Ltd V Minister of Pensions and National Insurance3 factors need to be fulfilled before a contract of service is established:

1.Employee or servant agrees that he will use his own expertise and the employer pays him either in monetary form or in any other form of renumeration.2.Employee or servant agrees, whether impliedly or expressly , that he will be bound by the employers instruction, which is reflective of employer-employee relationship.3.All other conditions in the agreement are consistent with nature of the job being a contract of service.

Malaysia court favour control testWorkers have been held to be non-employees on the basis that the D was not responsible for payment of wages and did not have control over the manner in which the work is performedBata Shoe v EPF Board

Generally no difficulty to differentiate them, except in this two conditions:

Hospital StaffCassidy v Ministry Of Health (house-surgeon, assistant medical officer)Roe v Ministry of healthTan Siew Eng v Dr Jagjit SinghIf negligence occur in a hosp, and the tortfeasor cannot be identified, the hosp will be vicariously liable.

In Roe, hosp will still be liable even though negligence is committed by a part time employee.

Lending a workerThe employer is still liable unless he has divested himself of all possession and control. Mersey Docks & Harbour Board v Coggins & GriffithsPermanent employer and therefore vicariously liable.

3rd R: Employee acted in the course of his/her employment when coming to committing tortConduct of the employee :-Is expressly/impliedly allowed by employer-Is authorised but done in unauthorised manner-Is ought or should be done in the course of doing the job.** Is a question of factThus it would be fair and just to hold the employer vicariously liable for the tort committed by the employee.

Circumstances fall within the course of employment

1.Carelessness of workerCommission of careless act as long as not on a frolic of his own (employees act is intended to benefit himself alone)Century Worker Insurance Co Ltd v Northern Ireland Road Transport BoardFact: Ds worker who was driving an oil tanker, stopped at Ps petrol station to transfer petrol from lorry to underground tank. He lit up a cigarette and threw the burning match on the floor. Explosion occurs and P property destroyed.D liable for workers negligent act. Because it was done in the course of his employment even though the actual act of smoking did not benefit the employer

2.Unauthorised mode- Mistake of employeeCourt will hold the employer liable. Mistake will be construed as doing sth authorised in an unauthorised manner.Bayley v Manchestor, Sheffield and LincolnshireD was held liable when their porter pulled out a passenger from a train as the porter mistakenly thought the train was heading elsewhere.

3.Protecting employers propertyMust not excessive-degree and factPoland v Parr & Sons

4.Employee delegating his responsibilityResponsibility must not be delegated.Illkiw v Samuels- a negligences conduct

5.Employee acting for his benefitTest: whether the conduct of the worker is reasonable, is that it is not too remote from comtemplation of both parties as to take the act out of the employment. If driver had driven 200 miles for lunch, employer would not be held vicariously liable.Zakaria b Che Soh v Chooi Kum Loong Fact: P was a driver with a research institute in Ipoh. After sending the director home, he drove home for lunch and accident occurred on the way.State govt liable. Even though the purpose of that trip did not have anything to do with his employer, but it was sth that was expected to be done in the course of employment and the accident occurred within the course of employment.

6.Acting against employers express prohibition

Conduct was prohibited but related to the mode of performing his job- within the course of employment.Case: Conway v George Winmpey and CoFact: the driver of a lorry acting against clear oral instruction of his employers, took a passenger on to the lorry. There was a notice in the lorry indicating that the driver was under strict orders not to carry passengers other than employee of the company and anyone driving on the vehicles did so at it his own risk. The passenger was subsequently injured by the negligence driving of the lorry driver.

In action against the employer, the court held that the passenger to be a trespasser and therefore no duty was owed to him by the employer.

7.Employee acting on frolic of his ownRoshairee Abd Wahab v Mejar Mustaffa Omar

8.Fraud of employee

Worker acting on the apparent/ostensible authorityCase: Lloyd v Grace

9.Theft of employeesMorris v CW Martin & Sons Ltd

10.Sexual abuse by employeeLister v Hesley Hall

11.Breach of statutory dutyMajrowski v Guys and St. Thomas NHS Trust

Liability in Respect of Independent Contractor

A person who although working for another person, he is not controlled by the other person or consuct relating to the performance of that work.

A contract for service.

Employer not vicariously liable, except in: Employer authorising the commission of tort- a person who authorises another to commit a tort is deemed to have committed the tort himself.

Negligence of the employerDBKL v Ong Kok Peng

Non-delegable dutiesLee Kei v Gui See