Vicarious Liability in the Law of Torts

Principle: An employer is liable for a tort committed by an employee in the course of employment. Facts: A courier company employs Dinesh as a delivery driver. While driving the company's van on his delivery round, Dinesh carelessly jumps a red light and injures a pedestrian.

Is the courier company liable to the pedestrian?

Answer: D. Yes, because Dinesh was doing the work he was employed to do, though carelessly, when the injury was caused.

Driving the van on the delivery round is exactly what Dinesh was employed to do. Doing it negligently is a wrongful mode of doing an authorised act, so it is in the course of employment. Vicarious liability does not depend on the employer having ordered the wrong or having been at fault in hiring.

Principle: An employer is liable for a tort committed by an employee in the course of employment. An employee who uses the employer's property for a purpose of his own, unconnected with the employer's business, acts outside the course of employment. Facts: Dinesh, a delivery driver, takes the company's van on a Sunday, without permission, to drive his family to a picnic. On the way he negligently injures a cyclist.

Is the courier company liable to the cyclist?

Answer: A. No, because Dinesh was on a private errand unconnected with the company's business.

The trip had nothing to do with the company's work; Dinesh was on what the cases call a frolic of his own. Ownership of the vehicle and the fact of employment are not enough. The day of the week matters only as evidence that the journey was a private one.

Principle: An employer is liable for a tort committed by an employee in the course of employment. An act is in the course of employment if it is a wrongful or unauthorised mode of doing an act the employee was authorised to do, even if the employer had forbidden that mode. Facts: A bus company gives its drivers written instructions never to race with or obstruct the buses of rival companies. One of its drivers, while driving his route, cuts across a rival bus to block it and causes it to overturn.

Is the bus company liable for the damage?

Answer: B. Yes, because the driver was driving the bus on his route, which he was employed to do, in a forbidden manner.

These are the facts of Limpus v London General Omnibus Co (1862). The prohibition governed how the driver was to do his job; it did not change what his job was. He was driving the employer's bus on the employer's business, so the act was within the course of employment.

Principle: A person who engages an independent contractor, who undertakes to produce a given result and is not subject to control over the manner of doing the work, is not liable for torts committed by the contractor or the contractor's workers in carrying out that work. Facts: Farida engages a licensed electrical firm to rewire her shop for a fixed price. The firm decides how the work is done and sends its own workers. One of them carelessly leaves a live cable hanging over the pavement, and a passer-by is injured.

Is Farida vicariously liable to the passer-by?

Answer: B. No, because the firm was an independent contractor and Farida did not control the manner of its work.

The firm undertook to produce a result and chose its own method and workers, so it was an independent contractor. Under the principle Farida does not answer for its negligence; the firm does. That the work benefited her is not the test, and the absence of a contract with the passer-by is irrelevant in tort.

Principle: An employer is liable for a tort committed by an employee in the course of employment. An act is in the course of employment if it is a wrongful or negligent mode of doing an act the employee was authorised to do. Facts: The driver of a petrol tanker is transferring petrol from the tanker into an underground tank at a filling station. While doing so he lights a cigarette and throws away the lighted match. A fire and an explosion follow and damage neighbouring property.

Is the driver's employer liable for the damage?

Answer: C. Yes, because the driver was negligent in the way he carried out the very task he was employed to do.

These are the facts of Century Insurance Co v Northern Ireland Road Transport Board (1942). Smoking was for the driver's own comfort, but doing it while transferring petrol was a negligent way of performing his duty, so it fell within the course of employment. The principle given is about the course of employment, not about dangerous substances.

Principle: An employer is liable for a tort committed by an employee in the course of employment. An employer is not liable where the employee does an act of a kind which he was not employed to do at all. Facts: A bus company employs drivers to drive its buses and conductors to collect fares. At the end of a journey, while the driver is away, the conductor decides to turn the bus round for the return trip. He drives it negligently and injures a bystander.

Is the bus company liable to the bystander?

Answer: C. No, because driving the bus was not an act the conductor was employed to do.

These are the facts of Beard v London General Omnibus Co (1900). The conductor was not doing his own job badly; he was doing a different job that he had not been employed to do. Being on duty and meaning well do not bring an act within the course of employment.

Principle: An employer is liable for a fraud committed by an employee while acting within the authority which the employer has held the employee out as having, even if the fraud was committed solely for the employee's own benefit. Facts: A firm of solicitors leaves its managing clerk to deal with clients in property matters. A client consults the clerk about her properties. He induces her to sign documents which, unknown to her, transfer the properties to him, and he then disposes of them and keeps the money.

Is the firm liable to the client?

Answer: D. Yes, because the clerk committed the fraud while doing what the firm had held him out as authorised to do.

These are the facts of Lloyd v Grace, Smith & Co (1912), where the House of Lords held the firm liable. The clerk was dealing with a client's property matters, which was what the firm had put him there to do. Under the principle it does not matter that he acted for his own benefit or that the firm was unaware.

Principle: An employee works under a contract of service: the employer can direct not only what work is to be done but also the manner in which it is done. An independent contractor works under a contract for services: he undertakes to produce a result and decides the manner of doing the work himself.

Applying the principle, which of the following is most clearly an employee of the person who pays him?

Answer: A. A chauffeur on a monthly salary who drives his employer's car wherever and however the employer directs

The chauffeur can be told both what to do and how to do it, which is the mark of a contract of service. The taxi driver, the architect and the plumbing firm each undertake to produce a result and choose their own method, so each is an independent contractor.

Principle: An employer is liable for a tort committed by an employee in the course of employment. A minor deviation which is reasonably incidental to the work remains within the course of employment; a journey that is new and independent of the employer's business does not. Facts: A van driver is sent to deliver goods across the city, a job that takes the whole day. At midday, on his delivery route, he pulls over at a roadside stall to buy lunch. While pulling out again he negligently hits a parked scooter.

Is the driver's employer liable for the damage to the scooter?

Answer: C. Yes, because stopping for a meal on the route during a day-long job is reasonably incidental to the work.

Under the principle the question is whether the stop was a minor, incidental deviation or a new and independent journey. A meal stop on the route in the middle of a day's deliveries is the former. The last option reaches the right result for the wrong reason: working hours alone do not decide the matter.

Principle: Where an employee commits a tort in the course of employment, the employee is personally liable and the employer is vicariously liable. They are jointly and severally liable: the injured person may sue either of them or both, but cannot recover more than the loss suffered. Facts: A hospital's ambulance driver, on duty, negligently injures Gopal. Gopal's loss is assessed at Rs 2,00,000.

Which of the following correctly states Gopal's position?

Answer: D. Gopal may sue the driver, the hospital or both, but can recover Rs 2,00,000 in all.

Vicarious liability adds a defendant; it does not release the wrongdoer. Under the principle Gopal may choose whom to sue, in any order, but his total recovery is limited to his loss.