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.
[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.),