The principle of vicarious liability elucidates that a master/employer is responsible for the negligence or misdeeds of his servant/employee done within the course of employment. In other words, when an employer is held liable for a tortuous wrong committed by the employee(s), the principle of vicarious liability is in action.
The Black’s Law Dictionary defines vicarious liability as liability that a supervisory party(such as an employee) bear for the actionable conduct of a subordinate or associate(such as an employee) based on the relationship between the two parties.
The Nigeria Court of Appeal, Ibadan division in Thenor Mechanical Nig. Ltd V. Adisa Ogunbanjo1 said that Vicarious liability is a situation that makes a supervisory party bear the consequences or aftermath of the wrong or actionable conduct of his subordinate.
For vicarious liability to lie, a master-servant relationship has to be established. It must also be proved that at the relevant time the employee acted in the course of his employment, notwithstanding the fact that the servant wrongly executed his master’s instructions.
In Union Bank V Ajagu2, the Respondent (Ajagu) was the Appellant’s(Union Bank) customer. He went to deposit money, and on his way out, the gateman of the Bank forcibly locked the iron gate exiting the premises as a result of which Ajagu was confined in the Bank for 45 minutes. He sued both the Bank and the gateman, jointly and severally for damages for false imprisonment. The Bank tried to escape liability by arguing that its instructions to the gateman did not cover the unauthorized act. The court rejected the argument and held the bank vicariously liable.
It is not a defense for the employer to say that the servant in discharging his duties, was on a frolic of his own, for instance where the driver is specifically instructed to ply a particular route, but plied another route in which the accident occurred. So long as the servant is within the course of his employment the master is for practical purposes, liable.
The following cases highlight when an employee is within the scope of his employment;
In First Bank of Nigeria V Owie3, the cashier of the appellant’s bank fraudulently withheld some lodgment made by the respondent(Owie), but issued a teller indicating that the entire money had been paid into the respondent’s company account. The court held that the Bank was liable for the recovery of the amount diverted by its cashier. This is because the cashier acted within the course of his employment, even though his actions were fraudulent.
In Awachie V Chime4, the defendants bought a commercial bus and employed their driver to ply the Enugu- Nsukka route only. The Driver was specifically instructed not to ply any other route. He fell contrary to this instruction and plied the Enugu- Onitsha route, and got involved in a fatal accident. When the employers tried to escape liability saying the driver acted outside the scope of authority given to him, the court rejected the argument and held the employers liable, stating that since the vehicle was used for commercial purposes, the wrongful and unauthorized manner of discharge of his( the driver) duty was irrelevant.
In Nzarieehe V. Kagubaire,5 the driver was instructed to deliver goods. In this process, he diverted to go home to see his wife during which he knocked down someone. The driver’s employer was held liable for the tort. The detour was seen as being merely incidental to the authorized journey.
In Julius Berger(Nig) Ltd V Ede6 the defendant’s employee was the supervisor of a construction site and was sued along with the employer for negligently leaving a heap of soil on the expressway being constructed without lighting it up at night as a result of which the respondent’s car collided with the heap causing him severe injuries and damage of his car beyond repairs. The court held that the supervisor was not personally liable but the employer, Julius Berger (Nig) Ltd, was also liable based on the doctrine of vicarious liability, to wit an employee is not personally liable for the acts he performed on behalf of his employer within the scope of his authority
Note that, this doctrine is strict but not absolute. Thus, the law does not allow the employee to go free. If this were the case, mischievous employees would deliberately and consistently perpetuate evil because there is no check on their actions. But far from this, he (the employee) remains the principal tortfeasor and bears the full consequences of his actions. The employer for practical purposes is joined amongst other reasons, for monetary reasons.
It is imperative also to note that even when a person is not a servant of the owner of a vehicle but gets involved in an accident while driving, the owner of the vehicle will still be liable to the injured party. This is because the law presumes that the driver has the owner’s authority to use the vehicle at the material time. However, this will not be the position, where such a vehicle is proved stolen or converted. Therefore an exception to the principle of vicarious liability in this regard is detinue and or conversion. Detinue is the unlawful detention of goods belonging to another, especially when a prior request for it has been made. Conversion, on the other hand, is the wrongful possession or use of another’s property as if it were one’s own. Detinue and conversion in the appropriate circumstance, are valid defenses to vicarious liability.
The liability of a master is predicated on the establishment of the fault of his servant. Unless the servant is sued alongside the employer, the action remains incompetent. Also, in circumstances where the servant absconds or dies, the aggrieved party can still proceed against the employer provided he is able to prove that the dead or absconding servant was negligent in his act, as was decided in Ifeanyichukwu Osondu Co. Ltd V Soleh Boneh,7
Moreover, where a servant fails to defend his suit, or appeal against the judgment, the master cannot escape liability because the servant has failed to prove his innocence. This was reasoned in First Bank of Nigeria Ltd V. Owie.
In maritime cases, according to Section 16(3) of the Admiralty Jurisdiction Act8 an agent of the owner, charterer, manager or operator of a ship may be personally liable irrespective of the liability of his principal, for the act, or omissions of the ship in Nigeria.
This simply means that both the owner and the agent can be sued jointly and severally for damages in an action for negligence.
In conclusion, since vicarious liability is shared and consequential liability, the actual offender must first and foremost be guilty of negligence before the employer will be found vicariously liable. This principle is harsh. Employers/masters are made to suffer the irresponsibilities of their employee(s) even when such employee disobeys strict and clear orders. Thus, it appears by the cases, that the doctrine is extremely difficult to escape. The rationale for the law is that since such negligent employees are often poor and unable to pay damages, the aggrieved person has no other option than to sue the company/employer, where he can be properly remedied.
References
1. [2001] 1 NWLR (pt.639) 150 1967
2. [1990] 1 NWLR(pt 126) 326
3. [1997] 1 NWLR(pt 484)744
4. [1990] 5 NWLR (pt.150)340
5. (1968) 6 E.A.L.R 117
6. (2003) 8 NWLR(pt.823)526
7. [2002] 5 NWLR (pt.656)322 at 366
8. No.59 of 1991