Vicarious Liability: A Problem Question with Local Zambian Common Law Landmark Cases

This piece of writing illustrates how to tackle a problem questions in the Law of Tort effectively with Local Zambian and Common Law Landmark cases
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Question

One Sunday morning in the intercity bus terminal in Lusaka, the You Will Be There bus was scheduled to leave for Livingstone at 10 O’clock. It was half past 09 and the bus was still packed outside the terminal and passengers were lingering around the loading bay. Clive, a conductor of the You Will Be There bus service who was paid a month's salary, seeing that the driver was not around drove the bus into the terminal. In the process, Clive carelessly injured Zakaria causing a head injury.  Zakaria with a situation portrayed before him as a typical accident got admitted and healed after various sessions with various hired medical specialists.

Zakaria approaches you as seasoned Law of Torts scholar to advise him about the accident on whether he has a claim against Clive or not.

ANSWER

The facts of the situation suggest that the course of action is negligence and it is in the scope of the principle of vicarious liability. Vicarious liability is a principle of tortious liability where one person is held accountable for the offence committed by another. It exists among business partners, principal/agent, and primarily between an employee/employer relationship. For the sake of this writing, we will focus on the employee/employer relationship. To establish vicarious liability, one must prove that the person has committed an offence e.g., a tort in Casu, the person who has committed the offence is an employee and that person has committed the tort during the course of duty. This piece of writing is aimed at advising Zakaria on his claim for damages to the accident carelessly caused by Clive.

Legal Issues

1. Whether or not Clive was tortiously liable.

2. Whether or not Clive is an employee of the You Will Be There bus service.

3. Whether or not Clive committed the tort during the course of duty.


Note: Depending on your instructor, issues might be listed like this or included in the introduction or mentioned in the main body of your arguments or any other way.

Analysis

Whether or not Clive was tortiously liable. As a general rule tortious liability arises from the breach of duty of care primarily fixed by law. Its breach is remedied by an action for unliquidated damages. In Donoghue v Stevenson,[1] the appellant found a decomposed snail in a brown and opaque bottle of ginger beer bought by a friend. After drinking half of it, She subsequently developed shock and acute gastroenteritis. The issue was whether the respondents could be held liable for the tort of negligence or not. The court held the manufacturer owed a duty of care to all end-consumers of their product despite not having a contractual relationship with the appellant. They breached this duty of care and caused damage to the appellant; thus, they were liable to pay damages for the negligence. In the Attorney General Vs George Mwanza & Whiteson Mwanza,[2]  two women went for permanent contraception and a medical practitioner undertook their operation while the women were sedated. After they regained consciousness in the recovery ward the nurse allegedly acting on doctors’ instructions injected them with what the doctor prescribed but immediately, they died. The court held Appellant owed a duty of care to the two deceased patients. The Appellant breached that duty when conducting the operation and post-operation treatment, thereby causing the death of the deceased. Thus, the Appellants were negligent. In Michael Chilufya Sata v Zambia Bottlers Limited,[3] the appellant bought a case of Sprite manufactured by the respondent from a retailer and found a dead cockroach in one of the bottles which was not opened. The issue was whether they were negligent to entitle the appellant to claim damages. The court held for liability to arise the claimant must have drunk the Sprite. Negligence is only actionable if actual damage is proved. In the current case, Clive committed a tort of negligence as he had a duty of care towards Zakaria not to cause him harm which he broke by driving the bus he was not designated to drive to cause Zakaria a head injury. Zakaria is entitled to receive damages under the tort of negligence.

Note: On the surface, we have proved the tort of negligence was committed, and now we establish who will pay damages.

Whether or not Clive is an employee. As a general rule, if an employer can control the nature of the work an individual is engaged in (Control test), the work is an integral part of the business (The organisation test) and the individual receives remuneration for their work (Economic Dependency test) then such as individual is an employee. In Yewen v Noakes,[4] where there was a statutory exemption to pay tax duties on inhabited houses or were premises occupied by servants or caretakers. A man and his family lived on the defendant’s property alleged to be caretakers, the man was a clerk. The issue was whether he was an employee of the defendant or not to determine if the defendant was liable to pay tax. The court held that the defendant had no control over the man’s work or the manner he did his work as a clerk, thus he was not his employee, thus liable to pay tax. In Stevenson, Jordan and Harrison Ltd v McDonnell and Evans,[5] an engineer wrote a book that used part knowledge he obtained while working in different capacities in a firm and the rest was based on lectures he gave and material acquired while out on assignments. he died before the book was published. The issue was whether the claimant could assert copyright over the book or any part of it. The Court further ruled that a person is considered an employee under a "contract of service" when their work is integrated into the business and is seen as an integral part of it, as opposed to an independent contractor, who is merely an accessory to the business and is not an employee. According to the case's circumstances, the court concluded that the engineer's contract was split between the two at various points. It was decided that the engineer was the creator of the work, but that some information he learned while working for the firm was protected by the Copyright Act of 1911 and should not have been included in the publication. In Ready Mixed Concrete Ltd v Minister of Pensions,[6] drivers were hired by the claimants to deliver concrete using their vehicles which they purchased from the claimant. The drivers were responsible for the maintenance of the vehicles and had flexible hours of work. The issue was whether the drivers were employees or not. The court held the drivers were not employees, as they had sufficient freedom in the performance of their contractual obligations and could enter into contracts with others, thus not economically dependent on the claimants. In Casu, Clive is a bus conductor. Bus conducts are controlled by the employer, the manner in which they carry out their work is determined by the employer and the employer has the right to control the manner in which the work is done. The work Clive performed for the You Will Be There bus service was an integral part of the bus service provider thus his services were an integral part of the business. Lastly, Clive received monthly remuneration for his work and thus economically depended on the You Will Be There bus service.

Whether or not Clive committed the tort during the course of duty. As a general rule, an employer is liable for the offences committed by their employees during the course of their work. In Storey v Ashton,[7] two employees diverted after making a delivery to visit a brother of one of the two and in the process run over the plaintiff. The issue was whether the employer was liable for the tort of the employees. The court that the employees committed the tort outside the course or scope of employment and were on the frolic of their own, thus they were liable. In Manfred Kabanda and Kajeema Construction v Joseph. Kasanga,[8] where a driver carried passengers despite the fact he was not allowed to do so by the employer. He got into an accident that killed the passengers. The issue was whether the employer despite prohibiting the employee would be liable or not for the damage caused by the driver. The court held that an employer cannot escape criminal liability for authorized acts of an employee performed in an unauthorised manner as the act was done during the course of employment. In Giogio Fraschini And Motor Parts Industries (Copperbelt) v Attorney-General,[9] a government driver was instructed to park the vehicle at 5 pm. He drove the car from Lusaka heading to Chipata at night and collide with another vehicle and causing damage. The issue was whether the employer despite prohibiting the employee would be liable or not for the damage caused by the driver. The court held the employer was liable for the driver’s negligence even though he acted contrary to the instruction. He was still within the scope of his employment. In Casu, Clive a bus conductor acted on a frolic of his own as driving the bus was not in the scope of his employment.

In conclusion, Clive is liable to pay damages tot Zakaria for the tort of negligence he committed. As his acts laid out of the scope of his employment and he was on a frolic of his own. Thus, You Will Be There bus service will not be vicariously liable for his tort.

Note that different instructors will require different presentations of legal authorities in this instance, caselaw others may simply require you to merely list the cases and with their principles without facts others will require facts it all.

Reference

[1] Donoghue v Stevenson [1932] AC 562

[2] the Attorney General Vs George Mwanza & Whiteson Mwanza Selected Judgment No 38 -2017

[3] Michael Chilufya Sata v Zambia Bottlers Limited SCZ Judgment No. 1 of 2003

[4] Yewen v Noakes (1880) 6 QBD 530 (CA)

[5] Stevenson, Jordan and Harrison Ltd v McDonnell and Evans [1952] 1 TLR 101 (CA)

[6] Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497 (DC)

[7] Storey v Ashton (1869) LR 4 QB 476 (DC)

[8] Manfred Kabanda and Kajeema Construction v Joseph. Kasanga (1990 - 1992) Z.R. 145 (S.C.)

[9] Giogio Fraschini And Motor Parts Industries (Copperbelt) v Attorney-General (1984) Z.R. 29 (S.C.),

Final Year Law Student, The University of Zambia

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