Law of Torts 2

(Vicarious Liability)

SYED SIKANDR SHAH MOHMAND

Department of Law
School of Social Sciences
NUST
 Introduction to vicarious Liability

 As a matter of justice one who commits torts is a wrong doer and he/she
should be held responsible for that wrong himself/herself.”But there are
certain cases and circumstances where one person is held responsible for the
wrong committed by others. This rule is known as VICARIOUS LIBILITY.A
person can be held vicariously liable for the negligence of another. The basic
rule of vicarious liability is that an employer is vicariously liable for the
negligence of an employee provided the employee was acting in the course of
employment.
Example: Mr. “A” is a personal driver of Mr. “B” ,while doing his duty, “A” got
an accident on road by his own negligence and hit the brand new Toyota
Corolla of Mr. “C”. Mr. “B” would be vicariously liable to Mr. “ C” regardless of
Mr. “B” fault. Mr. “C” can file a suit for damages in the Court of Law against B.
 Underlying Principles of Vicarious Liability

 “Respondent Superior”…….Let the superior be

responsible.
 Latin Maxim “Qui facit per alium facit per se” meaning
thereby that a person who does an act through others, is
deemed in law as doing himself.
 Public Policy: Every person is supposed to do his acts
himself and if he chooses to do it through others, he must
do so at his own risk and responsibility. The law of the land
will not let the person unanswerable for the wrong
committed through other's.
 (2)Vicarious Liability by Abetment.

What is Abetment : Abetment means to encourage

or assist or Aid someone to commit a tort, the person
who abets is known as abettor.
Example: “A” abets/encourage “B” to go to the mango
garden of Mr.” x” to steal some mangoes and later on
we will distribute it equally and B pursue the plan of
A and steals so many mangoes in kilos.
 Is there any vicarious Liability arising …..?
 What sorts of tort has been committed…..?
 Abetment is also a crime in Pakistan …..under a separate chapter of Abetment
From Section 107 to 120 of Pakistan Penal Code 1860.
(Liability arising out of special Relationship)

Master and Servant

 Employer or Employee
Employer and an independent Contractor.
Principal and Agent
 Vicarious Liability Tests for the judges to decide a case for
damages and Compensation

 Following are the tests which the judges keep in their mind while deciding the
cases of vicarious Liabilities.
 Test 1: There must be a control test or close connection test when considering an
employer’s vicarious Liability to an employee.
 Test 2:The wrong Act done must be done under the course of employment/To
see how close the wrongful act is connected within the scope of employment.
 Test 3: Authorized Wrongful Act.e.g Abement cases.
 Test 4: The act authorized by the employer was done in a wrongful way by the
employee…..E.g. the duty to take a reasonable care…..by the employee towards
third person and a legal injury or damage has been done to the third party.E.g
Frolic of their own by ignoring the instructions of the employer.
 Test 5: Intentional torts committed by the employer…frolic of their own….would
the employer be liable vicariously. Assault and battery cases,sex abuses cases.
 Here we will see the close-connection test…(Lister vs Hesley hall 2002/Lister
close-connection test)
 Lister vs Hesley hall limited 2002

 Facts
 A warden was employed at an annex of a boarding school for boys and
responsible for the day-to-day running of the school, discipline of the
boys, organization of their daily activities, as well as supervision and
care of the boys after school hours.The warden had sexually abused a
number of the boys, yet unknown to his employers. The sexual abuse
took numerous forms and was usually administered in the context of
the warden’s control and discipline at the boarding school.
 Issues
 The question arose as to whether the employers of the warden may be
held vicariously liable for their employee’s intentional sexual abuse of
school boys placed under his care..?
 Lister Close Connection Test

Was the tort closely connected to the job role of the

employee that it would be fair, just and reasonable to
hold the employer vicariously liable for the
Intentional Tort of the employee.
Mohamud v Morrison Supermarkets 2016 UK
Case….
 Fact of the case

 Mr Khan was an employee of Morrison Supermarkets Ltd Company, working in the kiosk
serving customers at a Morrisons petrol station on its premises, in Birmingham. The
claimant, Mr Mohamud, was of Somali origin and was a customer who had entered the
petrol station to ask if he could print some documents from a USB stick.
 Mr Khan responded using abusive language, stating that Mr Mohamud could not print the
files at the petrol station. When Mr Mohamud objected to Mr Khan’s use of abusive
language, Mr Khan told him to leave the premises, using threatening and abusive
language again. Mr Khan then followed Mr Mohamud out to his car, opened the
passenger door and proceeded to assault Mr Mohamud, punching him and kicking him to
the ground.
 Mr Mohamud brought a claim for personal injury against Morrisons and the question
arose as to whether or not the Company could be held vicariously liable for Mr Khan’s
unprovoked and violent attack.

What is your view on this….?

 Cox Vs Ministry of Justice case 2016

In the Cox case, Mrs Cox was employed as a catering

manager by HM Prison Service. During the course of
her employment she was injured by the (admitted)
negligence of an inmate, Inder, who was working in
the kitchens with her. Under national prison rules,
prisoners are required to do ‘useful work’ as part of
their rehabilitation.
 Decision of the Supreme Court

Looking at Mrs Cox’s case the Supreme Court held

that prisoners working in kitchens were integrated
into the operation of the prison, particularly the
provision of meals to prisoners. If the prisoners were
not working in the kitchens, outside staff would have
had to be employed to provide the meals. 
Mary v. City of Los Angeles 1988 Case
What is scope of employment..?
 What is Scope of Employment

 Scope of employment for the employee is to act accordingly,

which is told by the employer to do as mentioned in job
description either orally or in written Contract.
 Written Contracts showing the terms and conditions of the
employment and job description of the employee.
 Example

A the employer hires B a male receptionist for his private

hospital….C the attendant of a patient enters the hospital
and asking about the previous record of his patient B
ignores C and asking to come tomorrow for the previous
record without mentioning the reason, C insists to give
him the record now B hits C on his face to go now…
C sues A instead of B for vicarious liability will he be
succeeded under his claim…?
 Travelling to and from the place of job.

Travelling to the place of job and out to the home

are also not coming within the preview of scope of
employment with one exception when the jobs
is of such a nature which is full of travelling e.g.
employing a driver for a particular job in that case
the travelling shall be within the scope of
employment for that particular job e.g. driver
employed for pick and drop for certain employee of
an organization to the place of job and to drop
them at home and accident take place because of
the driver negligence…?
(Liability arising out of special Relationship)

Master and Servant

 Employer or Employee
Employer and an independent Contractor.
Principal and Agent
 Master and Servant

A master is liable to every such wrongful negligent act of

the servant, if it is committed in the course of employment,
or business hours and damage or injury has done to the
third person.
Examples: “A” is the Private servant of “B” while taking
some groceries from the market for Mr. “B” on bicycle, he
negligently hits a neighbor child Mr. “C” and gets him
injured……
Does B have the vicarious liability to C…?
“ B” is vicariously liable for the injuries sustained
by Mr. “C”
Why the Master or Employer should be vicariously liable for
the wrongful Act Committed by his servant/employee.
The reasons for vicarious liability of master/employer
for the torts committed by his servant are as under.
Master is in the superior position
Master has deep pockets(wealthy) as compared to
servant.
Master is in a good position to pay damages to third
party as compared to servant or employee.
Servant is doing services or job for the benefit of his
master and not for himself, so if master gets benefits,
he must get ready for any liability arising out of the
negligent acts of his servant.
 CLASS DISCUSSION

A, a driver and employee of B, while transporting food items to different

shops from B’s warehouse, got accident but the fault was not of A but the
other driver C, A started asking for compensation, and during harsh
arrangement A started fighting with C,and broke his left arm…? C sues B
vicariously for physical injury.
 Does B the employer is vicariously liable to broken arm of C..?

 What sort of tort has been committed….?

 Whether A was doing his job in the course of employment….?

 Case 2

A passerby was killed by the negligence and rash

driving of A who was the personal driver of B, and
his duty was to pick and drop the kids of B at school?
 Solution

B is vicariously Liable to the legal heirs of deceased

for damages and compensation for the negligence
driving of A, and will claim damages under the fatal
accidents Act 1885.
 A Different Scenario 3

A is an employee of a Rahman Medical Institute/hospital. A has the duty

to pick the hospital staff from there homes and drop them at the
hospital. A has been given a hospital vehicle ,During this time, A goes
to petrol pump for fueling purpose…….(Course of employment)…..and
stop for some time on the request of any staff for buying some
drinkable water…?? What if an accident happens during this duration
while moving out of the pump did not see in the side mirror and hit the
car of Mr. B ..?

Scenario NO.4:Now what if the same driver forgets some personal

documents in home, first he goes to his home to pick up his documents,
deviate from its original route, and during this deviation an accident
happens because of his negligence ……..???
 Employer and Employee

Employer is the person who hires or pay salary for

the services provided to him.
For example: Hospital is an employer, University is an
employer.
Employee is the person who provides services to the
employer for which the employer pays.
There is always a contract of service between the
employer and employee. E.g. Doctors working in the
hospitals are the employees, staff working in the
University are the employees.
 Case discussion No.4

A private hospital has hired a very well known

pediatric cardiac surgeon, contract was signed with
him and the surgeon started performing his duties
very well. He is the only best pediatrics surgeon in
the town…..one day, while he was performing
surgery a patient died, because the doctor was found
under the influence of alcohol……?
 Case 5

A private company ‘A’ has given a car to one of its

officers ‘B’ wholly and solely for office use that is to
say only for his pick and drop facility from his home to
office and from office to home in working days.
(Monday to Friday).on weekend the company officer
was going to his village to enjoy his weekend….and
because of his negligence he did an accident and
injured third party, Third Party sues the company
instead of the driver..?
Does the company is vicariously liable to the
negligence of the driver.
 Employer and The Independent Contractor

Who is independent Contractor: An independent contractor is one

who undertakes to produce a given result of a task independently
according to their own means and methods without being subject to the
control of hiring party. The independent contractor has to do the said
job by his own way, so as a general rule employer is not vicariously
liable to the act or omissions of the independent contractors to third
party or strangers.
For Example: A makes a contract with B to supply lays crisp to my tuck
shop,is an example of independent contractor, Now if B got an accident
on the way because of negligent driving and damage the other car while
supplying Lays crisp to A, A is not vicariously liable to third party
damage.
 EXCEPTION TO THE RULE

There are certain exceptions to the rule where the

employer is held liable to the wrong committed by
even independent contractor.
Abnormal dangerous activities by the
independent contract
 Where the work given to independent contractor which
involves ultra hazardous activities/Inherently dangerous
activities:
For example use of heavy machinery, firework, activities etc in these
situation, if some damage is done to the third party the employer shall
be liable vicariously for the independent contractor to the third party
for damage done.
 Example

For example: A the employer is hiring an

independent contractor B for digging up a
basement in his newly under construction house ,B
brings his excavators for digging purpose, to dig a
basement, it is B to take care of the surrounding
houses, not to damage them and if during this time
any damage happens to the surrounding houses or
strangers A will be vicariously liable to third party.
If the employer hired an independent contract for
accomplishment of illegal act….than the employer
will be vicariously liable.
Negligent in selection of qualified Independent
Contractor and Retaining him/her
 Principal and Agents

Who Is Agent: Under section 182 of the contract act,

An gent is a person employed to do any act for
another or to represent another in dealings with
third persons.
The person for whom such an act is done or
represented is known as principal. Principal
authorizes the agent to act in his place, and the agent
has the authority of principal to act on behalf of the
principal.
The contract which creates the relationship of
principal and Agent is called an Agency.
 Vicarious Liability Under Pakistan penal Code

Section 108 ; Abettor: Abettor is a person who assist

or encourage another person for the commission of
an offence, while remain himself on back footing, he
does not himself participate in the commission of an
offence.
 Defenses for the Employer in vicarious Liability

The employer may take a plea or defense that the

wrongful Act was not in the Course of
Employment, once the employer has proved it in
the court of Law, he is no more liable to the third
party.
Volenti Non fit injuria…….when the plaintiff
consented or voluntarily assumed the risk of danger.
For example: Consent is usually taken in surgeries to
avoid any liability in case of the person death when
taken in critical situations but this defense is not
available for negligence act.