SLQS-Journal Vol. 1 - Slqs-uae.org

SLQS JOURNALJanuary 2009What is this Employer-Employee vicariousliability?Nadeera Dayal NenatungaNadeera Dayal Nenatunga, attached to DG Jones International Dubai as a Quantity Surveyor since 2007.He has over ten years experience in quantity surveying practice in Sri Lanka, and Sultanate of Oman.When one person is liable for a tort of another person, eventhough the first person was not directly responsible for theinjury resulted from that tortious act; it is called vicariousliability. In such a way, an employer sometimes can bevicariously liable for the acts of a worker, i.e. an employer isnot always liable for a tort of a worker. Therefore it is worth toconsider these situations and conditions.It can be clarified that an employer is vicariously liable for thetorts committed by an employee (intentionally or negligently)in the course of his employment. However, generally anemployer is not liable for torts committed by an independentcontractor.The most important element in vicarious liability is that thewrongdoer can be in the position of a servant or employee,and that the tort is connected to the employee’s course ofemployment. Therefore, it is very important to identify whetherthere is an employer-employee relationship and if so, whetherthe employee was acting in the course of his employment.Sometimes, it is difficult to decide whether the person whocommitted the tort is indeed an employee of the concernedemployer; especially when a tort is committed while anemployee has been seconded/ hired/ loaned to anotheremployer, and if, he is a more skilled worker. In such asituation, the courts have devised a number of tests whichcan be briefly stated as:•The control test: i.e. the importance of who controlled orgave orders to the employee.•The integration test: i.e. the importance of the work tothe organization; was it an integral part of the business?•The multiple test: i.e. various factors which can be saidto constitute employment; for example payment, pensions,and who gives the orders.As the second element, an employee is said to be acting inthe course of his employment if the act which constitutesthe tort is:•Expressly•authorized by his employer; or•impliedly authorized by his employer; or•incidental to an authorized act; or•a method, even if an improper one, of carrying out anauthorized act.Number of examples can be given, related to the vicariousliability, by the previous cases in English Law:•in Fennelly v Conex South Eastern Ltd (2000) case, Fennelly,railway passenger, was assaulted by a ticket inspector, afterFennelly refused to show his ticket. It was held that thecompany is vicariously liable for the tort committed by theticket inspector.The most important element in vicariousliability is that the wrongdoer can be inthe position of a servant or employee, andthat the tort is connected to the employee’scourse of employment.•in Century Insurance Co v Northern Ireland Road Transport Board(1942), a petrol tanker driver was delivering petrol to agarage. While the petrol was flowing he lit a cigaretteand negligently threw away the lighted match, causing anexplosion and extensive damage. Finally, it was held thatthe driver was still acting in the course of his employment,since part of his job was to wait while the petrol flowed;although lighting the cigarette was for his own benefit, nothis employer’s; that was not enough to relieve the employerliability.•in Limpus v London General Omnibus Co (1862) case, the driversof horse-drawn buses were expressly forbidden to race theirbuses. However, one did so and caused an accident. It washeld that the company was vicariously liable; even thoughthe act was expressly forbidden, the driver was performingan authorized act (driving the bus) in an unauthorized way.28