VICARIOUS LIABILITY

VICARIOUS

Means where a person is liable for the act or

omission of another with whom he stands in some
special relationship.
For example, master and servant or employer and
employee.
A (master), B (servant), C (guest). A will be liable for
the tortuous act done by B towards C.
 REASONS FOR VICARIOUS LIABILITY

Master is held to be liable for employing a negligent

employee; for failure to control the employee.
Since the master gain benefit from the employees
work, he should be made liable for any tortious
conduct of the employee in the performance of his
work.
Lastly, because the master is in the better
financial standing to compensate the 3rd party
 REQUIREMENTS OF VL

Three requirements must be satisfied in order for VL

to arise
1) Wrongful or tortious act,
2) There is a special relationship that is recognised by
the law between the person alleged to be
vicariously liable and the torfeasor, and
3) The tort is committed within the course of
employment.
 1) WRONGFUL OR TORTIOUS ACT

The court will decide whether a tort has been

committed. Once a tort is established, the nature of
the relationship between the D and the tortfeasor
will be examined.
 2)SPECIAL RELATIONSHIP

There must be a special relationship between A and

B ie usually between employee and employer.
Whether a person is a servant or employee or
otherwise is dependent on the determination of
whther the relationship is one of a contract of service
or a contract for service.
A special relationship exist in the contract of service.
 DIFFERENCE

Contract of service Contract for service

The person works as Eventhough the work is

part of the organisation also done for the
and his work forms an organisation, but it is
integral part of that only ancillary and is
organisations and external factor to
E.g Full-time lecturer the organisation
E.g Independent
contractor
 Mat Jusoh b Daud v Sykt Jaya Seberang Takir
Sdn Bhd

P worked as a 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 D.
Held : since wages and the number of logs to be sawn
were determinable by the D, the Ps work was an integral
part of the Ds business and P was therefore Ds
employee. D must take reasonable care to avoid from
unnecessary risk. D was found vicariously liable for not
providing a proper and effective system of work.
 3) The tort must occur within the course of
employment

An employer will only be vicariously liable for the torts of

his employee if the tort occurs in the course of
employment
WITHIN THE COURSE OF EMPLOYMENT means if :
FIRSTLY, it is either expressly or impliedly allowed by
the employer.
SECONDLY, when the employees does something that
is authorised in an unauthorised manner.
THIRDLY, the employee does something that ought or
should be done in the course of doing the job
** a question of fact.
 -Carelessness of worker

The commission of a careless act

may still be within the course of
employment provided the workers
is not on a frolic of his own.
(employees act is intended to
benefit himself alone)
CENTURY INSURANCE CO LTD V NORTHERN
IRELAND ROAD TRANSPORT BOARD

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.
Court held: D liable for his 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.
 -Mistake of worker

If the worker commits a mistake in the course of

performing his job, the court will hold the
employer liable.
The mistake will be construed as doing something
authorised in an unauthorised manner. In Bayley
v Manchester, sheffield and Linclnshire
Rly, D were held liable when their porter pulled
out a passenger from a train as the porter
(mistakenly) thought the train was heading
elsewhere.
 - Worker deliberately commits a wrong

If the worker does act for his own benefit, this does not
necessarily mean that he has acted outside the scope of
his employment.
In Zakaria b Che Soh v Chooi Kum Loong & Anor,
P was a driver with a reseacrh institute in Ipoh. After
sending the director home he drove home for lunch and
an accident occurred on the way.
Court held: the state government liable. Even though the
purpose of that trip did not have anything to do with his
employer, but it was something that was expected to be
done in the course of employement and the accident
occurred within the course of employment.
 TEST : whether the conduct of the worker is
reasonable; in that it is not too remote from
the comtemplation of both parties as to take
the act out of the employment.
IF, the driver had driven 200 miles for
lunch, the employer would not be
viacariously liable.
 LIABILITY IN RESPECT OF INDEPENDENT
CONTRACTORS

An independent contractor is a person who although

working for another person, is NOT controlled by the
other person in the method or conduct relating to the
performance of that work.
Contract FOR service.

An employer will be liable for the acts of his

independent contractor ONLY IF the employer is
deemed to have committed a tort in three situations:
1) Employer authorising the commission of tort
2) Negligence of the employer
 1) Employer authorising the tort.

A person who authorises another to commit a tort is

deemed to have committed the tort himself.

E.g A made a contract with B to cut the trees at his

house and ignore the mess that had trespassed at Cs
place.
 2) Negligence of the employer

General rule : employer not liable.

But, may liable if the negligence is caused by the
incompetence of his independent contractors, which
will construed his personal negligence for failing to
employ competant and skilled independent
contractors.
Lee Kei v Gui See, independent contractor set fire
to some unwanted branches on Ds land and left
unattended that spread n destroyed Ps land.
HELD:D must take all reasonable precaution to
prevent the fire from spreading.
 EXAMPLE OF EXAM QUESTIONS

With reference to the case law, explain legal principles of vicarious liability in the
Malaysian construction industry and discuss the reasons for their application.
(25 marks)

Comment on the rules on vicarious liability and discuss the rules for its
application.
(25 marks)
THE END