Meaning of Vicarious liability.

Whenever a law is breached, someone is liable for the breach. Such liability can either be direct or indirect. It is direct where the person who violated the law is held liable for the law he or she breached.

But liability is indirect where a person is held liable for the offense or tort committed by another person. Indirect liability is what we referred to as vicarious liability.

It is also known as an imputed liability because it is inferred from the existing relationship between the person whose act desecrated the law and the person on whose services the act was perpetrated.

In SCM Ltd v H.E.P.ENG (Nig) Ltd (2021) 11 NWLR.PT.1788 at 410, the Supreme Court per OKORO J.S.C defined vicarious liability to be

“The situation of one person taking the place of another person in so far liability is concerned”

The principle of vicarious liability was enunciated by Sir John Holt CJ in Hern v Nicholas (C.1700), 1 SALK 289. The principle in the earliest days of the common law is that a master is liable for the actions of his servant while acting in the course of his employment.

Vicarious liability is conceived also from the agent-principal relationship to the extent that a principal is bound in law to the Act of the agent acting on his behalf.

Nowadays, the principle of vicarious liability has gone beyond master and servant relationship and agent-principal relationship to include such situations where someone acts or acted under the service of another person, the liability is reserved for the person on whose instructions and control the person acted, though exceptions abide.

INSTANCES WHERE THE PRINCIPLE OF VICARIOUS LIABILITY IN TORT WILL APPLY

We have earlier mentioned:

• Between master and servant– That a master is responsible for the acts of the servant as long as the servant acted during the course of his engagement with the said principal.
• Between principal and agent-That a principal is liable for the Act of his agent while acting on his behalf.

Other instances where the vicarious liability principle will apply include:

• Between employer and employee– an employer is vicariously liable for the actions of his employee as long as the employee acted in the course of his employment. Examples: Banks are vicariously liable for the negligent acts of their workers that affect the customer of the bank. So? If a cashier or cleaner, negligently destroys a customer’s document in the custody of the bank, an action could be instituted against the Bank vicariously.

Again, if a medical doctor or health worker uses an improper medical procedure to attend to a patient, an action could be instituted against the Hospital for the negligent act of her employee as long as the medical doctor acted within the course of his employment with the Hospital.

• Between Owner of a Car and the Car Driver: Where a person engages anyone to use his car for a specific task, every act of negligence emanating from the use of the car for that specific task is visited on the owner of the Car. In Joseph Nwali v Eastern Food Distilleries limited; Suit No: HAB/195 /2020 (unreported), Defendant was held liable for the negligent act of the company’s driver who drove the company vehicle that collided with a bike man.
• Between parents and children. In some jurisdictions in the world like United State, parents or anyone in a place of the parents (loco parentis) can be sued for the negligent acts of their children who are minors. Parents become liable for the negligent acts of their minors, only if they fail in their duty of keeping dangerous objects out of reach of their children or the duty of supervising the minor. Outside this instance, parents cannot be held liable for the civil wrong committed by their children.

ELEMENTS OF VICARIOUS LIABILITY

These elements are what a person needs to establish before actions under vicarious liability can succeed. These elements include:

1. That the servant was negligent
2. That he was the servant of the master
3. That he acted in the course of his duty

“In an action against the master, for the plaintiff to succeed, he must lead credible evidence from which the court can make a finding to the effect that the servants are liable for the tort of negligence complained of, in other words, the plaintiff must establish the liability of the servant in order to succeed against the master in the action” See SCMLtd v H.E.P.ENG (Nig) Ltd (2021) 11 NWLR.PT.1788 at 410

EXCEPTIONS TO THE PRINCIPLE OF VICARIOUS LIABILITY IN TORT

There are exceptions to the rule of vicarious liability. It is not in all circumstances that a principal will be vicariously liable for the acts of the agent of the principal. Such instances include:

• Where the agent, servant, or employee deviates from his works. Where it is established that agent, servant or employee went on his personal course different from what he was engaged to do by the principal/employer/master, the principal cannot be held to be liable.For instance, MR A is under a contract of employment with B as a medical doctor. B is a government-owned hospital. Mr. A also manages his own private hospital; B cannot be vicariously liable for the actions of B as a medical doctor, in his private clinic or hospital.

Again, C is a company limited by share. D works as a company bus driver in C. Under D’s employment, D is expected to deliver loads to customers within the hours of 8:00 am to   3: 00 pm every day. D stops work on Monday afternoon by 3: 00 pm and decides to visit the girlfriend by 9: 00 pm with the company bus and negligently collides with E and injures E, C cannot be vicariously liable for the negligent act of D, etc.

In determining who should be responsible in the vicarious liability suit, emphasis should be placed on whose course the defendant was before the act or breach of the law occurred? If it is established that the agent was not acting in the course of the principal, it would be most unfair for the innocent principal to bear liability for what is not of his own making.

• Where the agent, servant, or employee  acted without the consent of the principal:

This is a bit different from where someone deviates from his works. In other words, A might be doing the work for which he is lawfully engaged, but then becomes independently liable where he acts without the consent of the principal where such consent is required before such an action can be performed or

• Where an agent acts without the knowledge of the principal, he can as well be held liable independently