By
Uroko L. Agada Esq., FIPMA, NOTARY PUBLIC
INTRODUCTION
The doctrine of Respondeat Superior is a fixative responsibility doctrine. It fixes the responsibility of a fault or damage on another due to the special relationship that exist between them or that the parties maintain, like employer/employee, parent/child, husband/wife and so on. It is used interchangeably with vicarious liability and for the purpose of this piece, we shall focus on liability that pass as a result of employer and employee relationship and in this regard, by having a pip at the meaning of the doctrine, basis for the doctrine, origin or history of the doctrine, tests for vicarious liability and vicarious liability in business insurance.
Employers have a greater chance of avoiding vicarious liability by proactively exercising reasonable care to prevent any negligent behavior on the part of their employees. This is why everyone in a position of authority or who exercises some degree of control over the conduct of other should care about this doctrine in order to avert indirect liability by familiarizing themselves with the doctrine and having a proper understanding of it. This is the goal that this piece seeks to achieve in real terms.
This study, therefore, conceives vicarious liability as the liability of an employer for the wrongs of his employee in the course of his employment aimed at ensuring a workable compensation to the objects or victims of such wrongs and as well proffers workable avenues to avert employers’ liability
MEANING OF THE DOCTRINE
When an employee causes injury or damages to another party during the course of his employment, the employer may become the responsible party. This is all because of the doctrine of Respondeat Superior. In Latin, this translates to ‘let the master answer’ and, in modern times, means the employer is responsible for the actions of his employees, if the actions cause injury to a party to which the employer owes a duty of care.
Respondeat superior is a specific kind of vicarious liability. Respondeat superior is a legal principle that holds an employer or principal liable for the wrongful acts of its employees or agents. This phrase comes from the common law doctrine that holds an employer liable for the wrongful acts of its employees. For example, if an employee is negligent and causes injury to someone or commits a crime, the employer could be held responsible.
Negligent entrustment is related to respondeat superior in that it is a way to hold one party liable for the actions of another. It is a legal theory that holds a person liable for damages caused by another person to whom the defendant has negligently entrusted a dangerous object or activity. The theory is often used in cases of car accidents, where the owner of a car loans it to someone who then causes an accident.
Under the theory of negligent entrustment, the owner of the car can be held liable for the damages caused by the driver, even though the owner did not actually cause the accident. This is because the owner should have known that the driver was not safe to operate a car and by entrusting the car to him or her, the owner negligently allowed the driver to put other people at risk.
Another important legal concept related to vicarious liability is the family purpose doctrine. This legal theory holds people responsible for damages caused by their vehicles when being operated by their own family members. The doctrine applies to vehicles that are owned or leased by the head of a household and are used for family purposes. This theory is based on the idea that when a head of household provides a vehicle to be used by their family, they are essentially entrusting it to their care. As such, they should be held accountable if their family members use the vehicle in a way that causes harm to others.
The family purpose doctrine is often used in cases of car accidents, where the driver is a minor or someone who is not listed on the insurance policy. In these cases, the parents or guardians of the driver can be held liable for the damages caused by the accident.
In order for a court to determine whether an employee acted within the scope of employment, the court will look at a few things:
- Whether the act or action occurred while the employee was at the workplace and within the hours of the employee’s schedule.
- Whether the employer must have employed the employee at the time of the incident. In other words, the employee had a reason to be at work at the time.
- Whether the injury was as a result of the act or omission of the employee in the capacity that the employee was hired (for instance, a waitress is hired to serve coffee, amongst other things).
The criteria are important in determining the level of responsibility the employer has to such acts or actions.
BASIS OR JUSTIFICATION FOR THE DOCTRINE
- An employer is more likely to have the assets to pay damages and to be insured against liability than an individual employee.
- It may sometimes be unclear which of a number of employees has actually committed the tort, but the employer will be vicariously liable for all of them.
- The employer has established a business and derives the economic benefits of commercial success: the employer ought therefore to be liable for damage caused by the business.
- The employer is more likely to take training and supervision seriously. Even though the employer has no defence based on care taken, there may be an overall advantage.
The basis or justification for holding Business owners liable for the wrong of their employees is because they have the right to control the work their employees perform and to dictate how that work is carried out. They also have a legal duty to maintain a safe workplace, employ competent workers, and train their employees properly. In essence therefore, because businesses have control over their workers and the workplace, they are liable if an employee acts negligently and accidentally harms a third party.
However, the doctrine of respondeat superior applies only to acts employees commit in the scope of employment. Employers aren’t responsible for negligence employees commit “off the clock.” There is no hard and fast rule for the interpretation of this rule as facts and circumstances differ from case to case and ranging from an off-hours social event to combining a personal errand with a work-related task.
Vicarious liability can be justified on the grounds of policy considerations and social insurance. The policy considerations are the product of social necessity and it is public policy. Thus the doctrine has not grown from any very clear logical or legal principle but social convenience and rough justice.
As a scheme of social insurance, it is usually asserted that the doctrine of vicarious liability enables the innocent victim to sue the party most probable to ensure compensation. Knowing of potential liability for the torts of his/her servants, the employer (“usually”) insures against these liabilities and the cost of insurance is reflected in the price it charges to its customers. Thus, the employer is the most suitable channel for passing the losses on through liability insurance and higher prices. Also, vicarious liability is usually rationalized based on respondent superior (“let the superior answer”) and qui facit per alium facit per se(“he who does a thing through another, does it himself”).
ORIGIN AND HISTORY OF THE DOCTRINE
It appears text writers are not settled on the origin of the doctrine of vicarious liability. While writers like Holmes contended that the doctrine of vicarious liability originated from Roman law, others like Wigmore opined that it originated from Germany. Still, some other scholars like Baty made light of the origin but concluded that the doctrine came into English law at the close of the 17th century. According to Holdsworth, during the middle ages, a master was held liable at civil law for all the torts of his servant, and later for only those mischiefs of his servant done by his command and consent.
However, following the expansion of commerce and industry in the 17th century, the ‘command theory’ could no longer stand the test of time, resulting in the enlargement of vicarious liability.
The reason for this was two-fold. First, under modern conditions, it was no longer practicable for an employer always to control the activities of his servants, especially in large corporations. Secondly, the increasing complexities of modern business with its attendant hazard meant a wider spectrum of responsibility on the employers than that which they hitherto bore.
Eventually, the ‘course of employment theory’ emerged to the effect that a master shouldered the liability for the torts of his servants, whether or not the master authorized or ratified it, or manifestly forbade it, provided that the wrongful act complained of occurred in the servant’s course of employment. Thus, by the 19th century, vicarious liability has assumed a modern outlook in England. And in this guise, it is founded not on fault but consideration of social policy, driven by the need to ensure an effective system of compensation to victims of torts occasioned by employees in the course of their employment, as in the words of Abdulkarim, a person wrongfully injured should not be left without a claim, or at best, a hollow claim. Under Nigerian law, the doctrine of vicarious liability is relatively nascent. Following its development in England, the doctrine was eventually exported to Nigeria as part of the received English law.
Since the reception, therefore, the doctrine of vicarious liability was incorporated into our legal system has remained part of our law.
TESTS FOR VICARIOUS LIABILITY
For a plaintiff to succeed in a claim for vicarious liability, he must establish the existence of three elements, to wit (i) that the wrongdoer is liable for the tort (ii) that the wrongdoer is the servant of the master and (iii) that the wrongdoer acted in the course of his employment with the master.
Tortfeasor’s Liability Test
For vicarious liability to lie, the plaintiff must establish that the servant (tortfeasor) is first and foremost liable for the tort.
Special Relationship Test
Yet another element that must be established by the plaintiff to succeed in an action for vicarious liability is that of a special relationship. The purport of this test is that there must exist some kind of relationship between the wrongdoer and the master, being a relationship recognized by law as capable of fixing the master with the liability for the tort committed by the servant in the course of his employment. Generally, this relationship is classically one of employment. The employer/employee relationship arises out of a contract of employment.
Thus, at common law, three tests have evolved over a period of time in determining the relationship of master/servant. These tests include the control test, the organization test, and the multiple tests.
Course of Employment Test
For an employer to be liable for the tort of his employee, the employee must have committed the tort in the course of his employment. This difficulty is manifested in the various tags that are associated with the test including but not limited to ‘scope of employment test,’ ‘close connection test,’ ‘field of activities test’ and ‘sphere of employment test.’ Though these phrases appear to be similar, yet each may have far reaching legal implications distinct from the other and may not really matter for the purpose of this write-up.
Vicarious Liability of Juristic Persons
At law and in equity a ‘person’ subsumes both natural and artificial person. Therefore, like natural persons, juristic persons are subject to the operation of vicarious liability both civilly and criminally.
Thus, the liability of a body corporate is, therefore, in all cases a vicarious liability for the act of other persons. On vicarious criminal liability, earlier at common law, a corporation was held criminally liable with respect to nonfeasance which later included misfeasance acts. Today, a juristic person may be held criminally liable vicariously for all offences with such exceptions as assault, manslaughter, murder, perjury and rape.
Furthermore, various statutes create strict liability offences under which a corporation may be held strictly liable, albeit vicariously for the criminal acts of its agents or servants.
VICARIOUS LIABILITY IN BUSINESS INSURANCE
Vicarious liability is an everyday risk for business owners, but that doesn’t mean your bottom line has to suffer because of mistakes or oversights that other people make.
Various types of business insurance specifically protect businesses from the costs of both direct and vicarious liability. These policies usually cover the expense of defending yourself against vicarious liability claims:
- General liability insurance protects you from the costs of lawsuits over personal injuries or third-party property damage caused by you or your employees or from incidents that happened on your business property.
- Errors and omissions insurance, also called professional liability insurance, shields you from the costs of mistakes and oversights you and your team make while performing your work (or from the costs of lawsuits over perceived mistakes).
- Workers’ compensation insurance covers the cost of medical bills and lost wages if you or an employee experiences a workplace injury.
CONCLUSION
As a tort, vicarious liability requires a special relationship between the defendant and the wrongdoer. This relationship includes employer/employee relationship, principal/agent, employer/independent contractor, car owner and causal agent, parent/child, partnership relationships, inter alia. Note, however, that the principle of casual agency may be presumed.
Since businesses rely on people to carry out their mission, they are vicariously liable when those individuals inadvertently cause accidents that harm others. You can insure your business for your vicarious liability to others by purchasing commercial liability insurance.
REFERENCES
- https://study.com/learn/lesson/vicarious-liability.html. accessed on the 25/11/2023 at 12:12pm.
- https://jideogundimucosolicitors.co.uk/vicarious-liability/. accessed on the 25/11/2023 at12:45
- https://lawpavilion.com/blog/modern-approach-to-the-doctrine-of-vicariousliability/#:~:text=The%20Black’s%20Law%20Dictionary%5B1,relationship%20between%20the%20two%20parties.’ accessed on the 25/11/2023 at 5:45
Disclaimer:
This article is for information purposes and is not intended as a legal opinion or advise on the issue. Therefore, any usage of this article must be with the proper legal guidance as the position of the law may have changed.