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The Doctrine of Vicarious Liability in Tanzania: Can an Employer be held Liable for a Tortious act of his Employee?


Jaba Shadrack, UDSM – School of Law, jaba@udsm.ac.tz
Meaning of the doctrine of vicarious liability
Vicarious liability refers legal responsibility that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. Vicarious liability presupposes a state whereby one person is liable for a tort committed by another person. It is a form of strict, secondary liability that arises under the common law maxim of 'respondeat superior' i.e. responsibility of the superior for the acts of their subordinates

Friedmann on Torts has stated the doctrine of vicarious liability in simple terms as follows:
In some instances one person may be held liable for the wrongful act or omission of another even if the specific act or omission was unknown to him at the time it occurred. Vicarious liability is guided by a Latin maxim, qui facit per alium facit perse i.e. he who does something through another is deemed to have done it himself. The maxim establishes a principle that resembles the law of agency or the principle of undisclosed principal. However, the two doctrines of vicarious liability and the law of agency differ on the aspect of authority. Whereas, in agency, the principal is liable for acts which he specifically authorise, under vicarious liability the master is liable for the wrongful acts of his servant committed during the course of employment. Example, this notion was affirmed in the case of MAYANJA v. HOIMA COTTON COMPANY LTD. 

Origin and Rationale of the doctrine of vicarious liability
The principle of vicarious liability is deep-rooted in common law. Its origin may be found in early medieval law, although it began to assume a crucial role in the post-medieval period particularly, as commerce grew.
Though the doctrine has its roots in the earliest years of the common law, it was Sir John Holt, C.J (1642-1710) who began the task of adapting medieval rules to the needs of modern society, and his work was continued by the great Victorian Judges. By the beginning of the 20th Century, it was steadily established that, the master's liability was based not on the fiction that he had impliedly command his servant to do what he did, but on the safer and simpler ground that it was done in scope or course of his employment.

In Tanzania, the doctrine of vicarious liability is recognized even under customary law. This position is to be found in the decision of East African Court of Appeal, in the case of KIBAKA v. KITONTO, that decision was adopted by the late Maganga J. (as he then was) in the case of MARIBA WANYANGI v. ROMARE, Mwalusanya J. In the case of SALIM RAMADHANI v. IDDI BAKARI BUSA, quoted the two cases with approval holding many of our tribes including warangi tribe recognize the doctrine of vicarious liability. 


Rationale of the Rule
The advocators of the doctrine of vicarious liability normally justify it by stipulating the following reasons;
First, the employer is in a better position to absorb the legal costs either by purchasing insurance or by increasing his prices. This is evident in Tanzania under the Workers' Compensation Act, whereas every employer is required to take an insurance cover to keep himself insured and maintain an insurance certificate throughout his operation. It has been argued that, vicarious liability is a common sense rule, for employees are usually people of meagre means, thus it is only fair for an injured party to seek compensation from those who control and profit by the organisation in which he is employed. That justification is what constituted the idea of "deep pockets", this proposition is found in the words of Lord Wilberforce in KOORAGANG LTD v. RICHARDSON & WRETCH LTD.
Secondly, the burden of such liability on the employer encourages him to ensure the highest possible safety standards in managing his business. Thirdly, the employer commands or exercise control over his employees therefore, he is responsible for the acts of the latter. Thus, however, this is a demonstrable fallacy because in many cases the employee is more skilled than employer (example; doctors, pilots, lecturer) and so cannot be said in any meaningful senses that employer has control. Fourthly, when the employer is careless in selecting an employee who discharges his duties negligently thus, the employer must accept the responsibility because, by selecting negligent employee, he set in motion the trend of events. Fifthly, the employer derives benefit from the service of his employee, so it is only right that he takes the burdens as well. Finally, by imposing liability on the employer, the employer is thereby given an incentive to ensure that the event does not occur again and that none of his other employees do the same thing.

Relationships under the Doctrine of Vicarious liability:
The relationship basically is that of employer/employee (master/servant) or employer/independent contractor. It should be noted that once it is established that an employer is liable for the torts of an employee it becomes necessary to determine who is and who is not an employee.

Employer/employee (master/servant) Relationship

An employer's vicarious liability for the torts of his employee
The rule is that a master is vicariously liable for the torts of his servant committed in the course of his employment. In LIMPUS v. LONDON GENERAL OMNIBUS CO, a bus driver while racing a bus caused an accident. His employers were held liable because he was doing what he was employed to do i.e. driving a bus, though in an improper way. Likewise, in BARTONSHILL COAL CO. v. McGUIRE , Lord Chelmsford LC observed that, 'every act which is done by a servant in the course of his duty is regarded as done under his master's orders and consequently is the same as if it were his master's own act. Indeed; there was a theory that the employer was vicariously liable for any act committed by the employee in the course of employment. The modern view however is that, such an "act" must be a tort.

Salmond and Heuston on the Law of Torts (19th Ed) pp.521-522, contended that; a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be done so if it is either; one, a wrongful act authorised by his master or, two a wrongful and unauthorised mode of doing some act authorised by the master.
In contrast, the case of BEARD v. LONDON, a bus conductor attempted to turn a bus around at the end of its route and in doing so he caused an accident. His employers were not liable since he was employed only to collect fares and not to drive buses.

To sum up the above position, in order for an employer, therefore to be held liable for the torts of his employee, the following three conditions must be met.
(a) The plaintiff must establish that a relationship that exists between the parties is that of an "employer" and "employee" (master/servant).
(b) Employee must have committed a tort (for which he is always personally liable)
(c) That tort must have been committed in the course of employment of the employee.

Circumstances which an Employer may be liable for acts done by his Employees
In law of tort generally, liability is of a primary nature i.e. tortfeasors are responsible only for damage caused by their own tortious behaviour. However, where there is a legal relationship between persons and a tort is committed by one party to the relationship, and that act is specifically referable to the relationship, it is possible that the law of tort will impose vicarious liability on another party to the relationship.

An employee may be within the course of his employment even though he had acted fraudulently
In LLOYD v. GRACE SMITH, the defendants were solicitors who employed a managing clerk to do conveyancing. The managing clerk fraudulently induced the plaintiff to convey two cottages to him by representing that this was necessary in order to sell the cottages. The clerk then resold the cottages and absconded with the sale proceeds. The solicitors were held liable on the ground that by allowing him to perform conveyancing transaction they had given him apparent authority to act as he did. He was acting within the scope of his employment even though he acted fraudulently. Case law developed by Courts in Tanzania illustrates clearly this situation too. In THE MANAGER IMARA GUEST HOUSE v. EGNAS KAGANDA, the respondent while lodging in the appellant's house, had his radio cassette stolen. It was proved that the radio cassette was stolen while the respondent was not around having locked his door. Both the trial Magistrate and the High Court Judge found the branch manager liable for the loss due to the fact that the keeper (appellants employee) was under an implied contract to take care for the safety of property brought in the house by a guest and further that the employer was vicariously liable for the acts done by his employee in course of employment. Similarly, in NBC v. GRACE SENGELA, the appellant through the vicarious liability principle, paid Tsh. 15.000/= to the respondent for the reason that their employee (a bank attendant) committed a slander by wrongly closing the account of the respondent.

The employer may be liable even if employee acts contrary to his clear instructions
In ROSE v. PLENTY, defendant was a milkman. His employer did everything possible to stop the common practice of taking young children on the van and paying them to help deliver the milk. A notice at the depot said, children must not in any circumstances be employed by you in the performance of your duties. Contrary to this instruction, the defendant employed the plaintiff. While moving from one delivery point to another the boy had one leg dangling from the van so that he could jump off quickly. Defendant drove negligently and plaintiff's foot was crushed between the van and the kerb. It was held that defendant's employer was liable because the defendant had been acting in the scope of his employment i.e. delivering milk and collecting empty bottles, although in an improper way.

Moreover, if an employer provides a vehicle for the employee's use, the employee may be regarded as the employer's agent if he gives another employee a lift, even though it is not within the scope of his employment to do that. This is exemplified by the case of VANDYKE v. FENDER , an employee who was provided with a company car, gave other employees a lift to work. There was an accident and one of the employees was injured. He was successful in his claim for damages against the company since Mr. Fender, although not a paid driver was driving the car as the company's agent and they were therefore liable for his negligence. In the same vein, ANGLINA v. NSUBUGA AND ANOTHER, the court held that, the master is liable where the servants make a small deviation in a journey originally started on his masters business.
Intentional or Criminal Acts, Facilitated by the Employment; It is possible for an employer to be liable for the employee's criminal conduct. In LLOYD v. GRACE SMITH & CO, a solicitor's clerk was found to have acted within the scope of his employment when he fraudulently induced a client to convey properties to him. The employer was vicariously liable though the crime was committed for the employee's benefit.
An employee who wrongfully uses his own property to carry on his job may still be within the course of his employment. For instance, in McKEAN v. RAYNOR BROTHERS, an employee was told to deliver a message using the firm's lorry. Although he took his own car he was still held to be in the course of his employment.

Situations which an employer may not be liable for acts of his employees
An act of violence will usually take the employee outside the scope of employment and the employer will not be liable. In WARREN v. HENLYS , a petrol pump attendant assaulted a customer during an argument over payment for petrol. It was held that, the employer was not liable. Likewise, if an employer allows an employee to use the employer's vehicles for the employee's own use, the employer will not be liable for any accident that may occur.
Frolic: The court will not hold the master liable if it is shown that the servant committed tort while on the frolic of his own: that is, he did the wrong when doing his own business. This position is well illustrated by the case of MACHEME KASKAZINI CORPORATION LTD. (LAMBO ESTATE) v. AIKAELI MBOWE. In this case, the respondent sued the appellant and his employer jointly and severally, in negligence for damaging his house and goods. The appellant's employee, after working hours, used the car of his boss to visit his relative. On his way back crashed into the house of the respondent. The Court of Appeal observed that Simon was not engaged in his employer's business at the material time; and that, the visit to his relative had absolutely no connection with his employment. His driving the vehicle was unauthorised act outside the scope of his employment. One has to take a note that, unauthorised and improper methods of performing a central task do not take an employee outside his course of employment (The case of CENTURY INSURANCE v. NORTHERN IRELAND TRANSPORT BOARD).
Detour: In this, the master is not liable for the wrongs committed by his servant when it is established that, the servant was in detour: that is, he did not follow the exact route instructed by the master. In SSEMBATI v. UGANDA ENTERPRISE CO LTD & ANOTHER, the defendant was a driver driving transit goods from Uganda to Kenya, employed by Uganda Enterprises Co Ltd. He was once given copper from Kilembe mine to Nairobi-Kenya. On arriving in Kenya, the defendant hired maize to be taken to one Kugis residing at Bukoba. This was contrary to instruction given by his employer and he was prohibited from hiring any goods not owned by his employer. On the way to Bukoba, after arriving at Mutukura, he caused injuries to the child of the appellant who was playing along the road. The Court of Appeal of Eastern Africa found out that the driver deviated at the high degree on driving to Tanzania and since the driver was an abled person was to pay the damages on his own and not via employer. However, the courts have reluctantly observed the above rule. For example, in the case of KARISA AND ANOTHER v. SOLANKI AND ANOTHER, the court held that, although the driver did not follow the exact instructions the employer was still liable because the evidence showed when the driver committed the tort it was for the joint benefit of the owner and himself.
Prohibition; sometimes a prohibition imposed by an employer on an employee will limit the scope of employment. Thus, in TWINE v. BEAN'S EXPRESS , a prohibition against drivers giving lifts to hitchhikers was held to limit the scope of employment. However, this was not considered relevant to ROSE v. PLENTY , since Rose was not a mere passenger being given a lift, but he was the method by which plenty did his job. In the case of RANDY v. CRAIG it was held that, to exonerate themselves from liability, masters have to show that the conduct of servants in particular instance was distinctively remote and disconnected from his employment so as to put (servants) virtually strange. This has always been difficult for employers to prove.

Employer/independent contractor relationship:
The common law distinguishes between classes of persons described respectively as employees and independent contractors. This distinction is required to be made for a variety of purposes including the applicability of the doctrine of vicarious liability, where in exclusive circumstances; the employer is made liable for the torts of independent contractors as well.

Conclusion:
Although the doctrine of vicarious liability is accepted in English law there is no clear and convincing rationale for its imposition. A number of theories have been put forward to explain the deviation from the prevalent fault-based theory of liability. It has been suggested that the employer is in control of the behaviour of his employee. This is no longer convincing as many employees perform skilled tasks which the employer is incapable of understanding. To say that, a health authority chief-executive controls the work of the consultant is stretching the meaning of the word. Alternative suggestion has included the fact that the employer may have been careless in selecting the employee. However, liability is not based on this premise, since in some instances; a perfectly competent employee is capable of behaving negligently at some stage in his employment.


NB: This Document is also available in Pdf & iPaper (with footnotes) at:


REFERENCES:
BOOKS:
Abbott, K, (2002) Business Law 7th Ed, Continuum publishers, London
Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe University.
Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West
Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing
Juma. I.H (2007) Learning materials: Law of Tort, DUP
Lewthwaite, J (2004), Tort Law, Oxford University Press, New York
Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London.

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Author: Jaba Shadrack
Jaba is a Law Lecturer at the University of Dar es Salaam, School of Law and a blogger based in Dar es Salaam, Tanzania. Read More →

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