2.

VICARIOUS LIABILITY
The expression “vicarious liability” signifies liabilities which A may incur to C for
damage caused to C by the negligence or other tort of B.
It is not necessary that A should not have participated in any way in the commission of
the tort nor that a duty owed in Law by A to C shall have been broken.
What is required is that A should stand in particular relationship to B and that B’s tort
should be referable in a certain manner to that relation.
The commonest instance in Law is the liability of a master for the torts of his servants.
Vicarious liability generally arises from a contract service.
MASTER-SERVANT RELATIONSHIP.
Who is a servant?
Since vicarious liability generally arises from a contract of service (“servant”) not a
contract of services (“independent contractor”) it is important to determine the indicia if a
contract of service.
In an often cited statement in Short v. J & W Henderson Ltd Lord Thankkerton said that
there are four indications of a contract of service;
a) The master’s power of selection of is servant
b) The payment of wages or other remuneration
c) The master’s right to control the method of doing the work, and
d) The master’s right of suspension
In Morren v. Swinton the defendants engaged a firm of consultant engineers to supervise
the construction of certain sewage works. Under the contract, the defendants were
supposed to appoint a resident engineer (to be approved by the consultants) to supervise
the works under the general supervision and control of the consultants. The plaintiff was
appointed as a resident engineer by the defendant and approved by the consultants
pursuant to the terms of the contract. He was paid by the defendant and was entitled to
holidays with pay and was liable to be dismissed by the defendants. He was however
delegated to the consultants and was under their general supervision and control
Held: Absence of control by the defendant was not necessarily the most important test.
The other factors were enough to show that the plaintiff was clearly employed by the
defendant under a contract of service.
It is thus important to state that whether or not a contract of service exists will depend on
the general nature of the contract and no complete general test exists. More helpful is the
well-known statement of Denning L. J. in Stevens v. Brodribb Co. Pty. Ltd.
“It is often easy to recognize a contract of service when you see it, but difficult to
say wherein the distinction lies.One feature which seems to run through the
instances is that, under a contract of service, a man is employed as part of a
business, and his work is done as an integral part of the business; whereas under a
contract of services, his work, although done for the business, is not integrated
into it but is only an accessory to it.”
An independent contractor will commonly be paid “by the job” whereas a servant will
generally receive remuneration based upon time worked. But a piece worker is still a
servant; and a building contractor is under a contract of service notwithstanding that it
may contain provisions for payment by time.
Once the Master-servant relationship is established, the master will be liable on all torts
committed by the servant in the course of the employment.
a) Hospitals
It has held that radiographers, house surgeons, house time-assistant medical officers and
probably staff anesthetics are employees of the hospital authority for various liabilities.
But visiting consultants and surgeons are not employees of the hospital and thus the
hospital is not liable.
In Hillyer v. St-Bartholomew’s Hospital the plaintiff bought an action against the
governor of a hospital for injuries allegedly caused to him by negligence of an operating
surgeon. The hospital was a charitable body.
Held: That the action was not maintainable. The court further stated that the only duty
undertaken by the governors of public hospital towards a patient who is treated in the
hospital is to use due care and skill in selecting their medical staff. The relationship of
master and servant does not exist between the governors and the physicians and surgeons
who give their service at the hospitals (i.e. who are not servant of the hospital.) The court
further stated that the nurses and other and other attendants assisting at the operation
cease, for the time being, to be the servant o the governor, in as much as they take their
orders during that period from the operating surgeon alone and not from the hospital
authorities.
Where there is a contract between the doctor and the patient, the hospital is not liable.
A hospital is thus liable for negligence of doctor and surgeons employed by the hospital
authority under a contract of service arising in the course of the performance of their
professional duties. The hospital owes a duty to give proper treatment to its patients.
In Cassidy v. Minister of Health the plaintiff entered a hospital for an operation of this
left hand, which necessitated post-operational treatment. While undergoing the
treatment he was under the care of a surgeon who performed the operation and who was a
whole-time assistant medical officer of the hospital, the house surgeon and members of
the nursing staff, all of whom were employed under a contract of service. At the end of
the treatment it was found that his hand had been rendered useless.
Held: The hospital was liable
A hospital may also be liable for breach of duty to patients to provide proper medical
service although it may have delegated the performance of that duty to persons who are
not its servants and its duty is improper or inadequately performed by its delegate.
An example is where the hospital authority is negligent in failing to secure adequate
staffing as where a delegate is given a task, which is beyond the competence of a doctor
holding a post of seniority.
b) Hired Servants
A difficult case arises where A is the general employer of B but C, by an agreement
with A (whether contractual or otherwise) is making temporary use of B’s services.
If B, in the course of his employment commits a tort against X, is it A or C who is
vicariously liable to X? It seems that it must be one or the other but not both A&C.
In Mersoy Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. A
employed B as the driver of a mobile crane. A let the crane to C together with B as
driver to C. The contract between A and C provided that B should be the servant of
C but was paid by A and A alone had the power to dismiss him. In the course of
loading a ship, X was injured by the negligent way in which B worked the crane. At
the time of the accident C had the immediate direction and control of the operations
to be executed by B and crane e.g. to pick up and move a pieces of cargo, but he had
no power to direct how B should work the crane and manipulate its controls.
Held: That A as the general or permanent employer of B was liable to X. The court that
there is a very strong presumption that a servant remains to be the servant employer
although he may be the servant of the hirer.
The question whether A or C is liable depends on how many factors; e.g. Who is the
paymaster, who can dismiss, how long does the alternative service last, what machinery
is employed etc.
The courts have however generally adhered to the view that the most satisfactory test is,
who at the particular time has authority to tell B not only what he is to do, but how he is
to do it. This is question of fact involving all he circumstances of the case.
c) Loan of Chattels
In Omrod v. Crosville Motor Services Ltd. (1953) the owner of a car was attending the
Monte Carlo motor rally. He asked a friend to drive his car from Birkernhead to Monte
Carlo where they were to have a holiday together. During the journey, on a diverted
route, the car was involved in an accident.
Held: At the time of the accident, the car was being used wholly or partially for the
owner’s purposes and thus the friend was agent of the owner and in so far as the friend
was liable of negligence, the owner was vicariously liable for his negligence.

LIABILITY IN RESPECT OF AN INDEPENDENT CONTRACTOR

The employer is generally not liable for torts committed by an independent contractor.
The employer is however liable if he is deemed to have committed the tort.
This may occur in the following instances;
1. Whether the employer has authorized the commission of the tort.
In many circumstances, the law will attribute to a man the conduct of another being,
whether human or animal, if he has instigated that conduct.
He who instigates or procures another to commit a tort is deemed to have committed the
tort himself.
In Ellis v. Sheffield gas Consumers Co the defendant who had no authority to up the
street employed a contractor to open trenches and lay gas pipes along a street.
The contractor carelessly left a heap of stones on the footpath; the plaintiff fell over them
and was injured.
Held: the defendants were liable since the contract was to do an illegal act, a public
nuisance. The decision would have been different had it been lawful for the defendant to
dig up the streets.
2. Torts of Strict Liability
The employer is liable in those circumstances e.g. in Rylands-v-Fletcher the employer
was held liable for the acts of his independent contractors as this was a case of strict
liability.
These in torts of strict liability, the employer will be liable even where the tort e.g. the
escape is caused by the negligence of an independent contractor.
In Terry v. Aston, the defendant employed an independent contractor to repair a lamp
attached to his house and overhanging the footway. As it was not security fastened, the
lamp fell on the plaintiff, a passer-by and the defendant was held liable, because: it was
the defendant’s duty to make the lamp reasonably safe, the contractor had failed to do
that. Therefore, the defendant has not done his duty and is liable to the plaintiff for the
consequences.
Here liability was strict.
3.Negligence
When there is an element of personal negligence on the part of the employer as to make
him liable for the acts of an independent contractor. E.g. Where the employer is
negligent or careless in employing an independent contractor for instance, where the
contractor is incompetent.
Failure to provide precaution in a contract where there is risk of harm unless precaution is
taken can make the employer liable for the tort of the contractor.
In Robinson v. Beaconsfield Rural Council, the defendant employed an independent
contractor, one hook, to clean out cesspools in their district.
No arrangements were made for the disposal of the deposits of sewage upon being taken
from the cesspools by hook. Hook men deposited the sewerage on the plaintiff land.
Held: The defendants had a duty to dispose the sewerage and, on construction of the
contract, they had not contract with hook for discharge of this duty (disposing of the
sewage) hence they were liable for the acts of the hook’s men in disposing it on to the
plaintiff land.
4. Where the Duty of Care Is Wide
An example is where the independent contractor is dealing with hazardous circumstances,
or works which from its very nature, poses to other persons.
In Holiday v. National Telephone Co, the defendant, a Telephone Company, was lawfully
engaged in laying telephone wires along a street. They passed the wires through tubes,
which they laid a trench under the level of the pavement.
The defendants contracted with a plumber to connect these tubes at the joints with lead
and solder to the satisfaction of the defendant foreman.
In order to make the connections between the tubes, it was necessary to obtain a flare
from a benzoline lamb of applying heat to the lamb. The lamb was provided with a
safety valve.
The plumber dipped the lamp into a caldron of melted solder, which was placed over a
fire on his footway. The safety valve not being in working order caused the lamb to
explod. The plaintiff, who was passing on the highway was splashed by the molten
solder and injured.
Held: The defendant were liable because having authorized the performance of work
which from its nature was likely to involve danger to persons using the highway were
bound to take care that those who executed the work for them did not negligently cause
injury to such persons.
ESSENTIALS FOR THE LIABILITY OF THE MASTER
For a master to be liable for his servant’s torts the tort must have been committed “in the
course of employment”. An act is done in the course of employment if;
a) It was a wrongful act authorized by the master
b) It was a wrongful and unauthorized mode of doing something authorized by the
master.
In London County Council v. Caltermoles (Garages) Ltd, the defendant employed a
general garage hank, part of whose job involved moving vehicles around the garage. He
was only supposed to push the vehicles and not to drive them. On one occasion, he drove
a vehicle in order to make room for other vehicles. Whilst doing so, he negligently
damaged a vehicle belonging to the plaintiff.
Held: That the negligent act was within the course of the garage hand’s employment
although he had carried his duties in an unauthorized manner. His master was thus
vicariously liable.
In Muwonge v. Attorney-General of Uganda, the appellant’s father was killed during a
riot. The shot which killed him was fired by a policeman who had seen the appellant’s
father ran towards a house and had concluded that the appellant’s father was a rioter.
Held: The firing of the shot was act done with the exercise of the policeman’s duty in
which the government of Uganda was liable as a master even though the act was wanton,
unlawful and unjustified.
If the act is not done within the course of employment, the master is not liable. In Twine
v. Beans Express a van driver employed by the defendant had been expressly forbidden to
give lifts to unauthorized persons and a notice to this effect was displayed on the
dashboard. The van driver gave a lift to a person who was killed in a subsequent accident
due to the negligence of the van driver. The widows of the deceased brought an action
against defendant.
Held: The action by the widows failed because the driver was acting outside the course
of his employment.In this case the act was expressly unauthorized.

3. TRESSPASS
a. To person
b. To property

3. TRESPASS TO THE PERSON

This is interference with the body of a person. Every person has a right to non-
interference with his body. The law of torts evolved 3 torts to protect these right or
interest namely; assault, battery and false imprisonment
A) ASSAULT
This is an act of the defendant which causes the plaintiff reasonable apprehension/threat
of the infliction of a battery on him by the defendant. It is an act of the defendant which
directly and either intentionally or negligently causes the plaintiff immediately to
apprehend a contact with the body of the defendant .This tort protects a person from
mental anxiety.

Rules of the Tort

1. There must be some apprehension of contact
2. There must be a means of carrying out the threat by the defendant
3. The tort is actionable per se.
4. The tort is generally associated with battery
5. Mere words without body movement do not constitute assault.
Assault is constituted by:-
i. A display or show of force
ii. Pointing of a loaded gun
iii. Cursing in a threatening manner
B) BATTERY
This is the intentional and direct application of force to another person. It has been
defined as any act of the defendant which directly and either intentionally or negligently
causes some physical contact with the person or body of the plaintiff without his
consent.
As a general rule battery is based on an intentional act and is both a crime and a tort.
Meaning of Force
Any physical contact with the body of the plaintiff or with his clothing is sufficient to
amount to force. There is battery where the defendant shoots the plaintiff from a distance
just as much as when he strikes him with his fist. Mere passive obstruction is however
not battery.
In the technical sense however, no physical hurt is necessary, for all forms of trespass are
actionable per se i.e. without prove of damage.
Where there is express or implied consent to contact the plaintiff can’t sue. Life
would be difficult if all bodily contact was actionable and courts have struggled to find
some further ingredient to distinguish battery from legally unobjectionable conduct.
In Collins v. Wilcock (1984) Goff L J stated that apart from specific defenses such as
lawful authority in effecting an arrest or prevention of crime, bodily contact was not
actionable if it was generally acceptable in the ordinary conduct of daily life.
INTENTION
Assault is committed where the plaintiff apprehends the commission of a battery on his
person. If the defendant does not intent to commit a battery but induced a belief in the
plaintiffs mind that he is about to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an assault but if the gun is unloaded it is
still assault unless the person at whom it is pointed knows this.
APPREHENSION
Suppose the plaintiff is an unusually fearful person in whom the defendant can induce the
fear of an imminent battery though a reasonable man would not have fear in those
circumstances, does the defendant commit assault?
The better view is that the test is based upon the subjective intention of both parties thus
there is battery if the defendant intends to create fear of commission of a battery whether
or not he knows the plaintiff to be a fearful person and the plaintiff actually has this fear.
In Smith vs. Superintendent of Working Police Station (1983), the defendant was
convicted of criminal assault when he entered the grounds of a private house and stood at
the window seriously frightening its occupant who was getting ready for bed.
The plaintiff must however apprehend a battery thus it is not assault to stand still at the
door of a room barring the plaintiff’s entry. It would also not be assault to falsely cry 'fire'
in a crowded place.
MUST DAMAGES BE PROVED?
Both torts of assault and battery are actionable per se. Where the defendants act has
caused no damage the courts may award only nominal damage but the court may also
award aggravated damages because of the injury to the feelings of the plaintiff arising
from the circumstances of the commission of the tort.
RULES OF BATTERY
1. Absence of the plaintiff’s consent
2. The act is based on an act of the defendant mere obstruction is not battery
3. A contact caused by an accident over which the defendant has no control is not
battery
4. There must be contact with the person of the plaintiff it has been observed The
least touching of another person in anger is battery
5. Battery must be direct and the conduct must follow from the defendant’s act
6. The tort is actionable per se. The essence of battery is to protect a person from un-
permitted contacts with his body. The principal remedy is monetary award in
damages.

FALSE IMPRISONMENT
This is the infliction of bodily restraint which is not expressly authorized by law. It’s an
act which is directly and either intentionally or negligently causes the confinement of the
plaintiff within an area limited by the defendant.
This tort protects a person’s freedom by making unlawful confinement actionable.
It is possible to commit the tort without imprisonment of a person in the common
acceptance of the tort. In fact neither physical conduct nor anything resembling prison is
necessary.
If a lecturer locks his students in a lecture room after the usual time of dismissal that is
false imprisonment. So also is the case where a person is restrained from leaving his own
house or part of it or even forcibly detained in a public street. A person is said to be a
prisoner if he has no liberty to go freely at all times to all places that he would like to go.
It has been held in Grainger v. Hill that imprisonment is possible even if the plaintiff is
too ill to move in the absence of restraint.
RULES OF THE TORT
1. The tort must be intentional
2. It is immaterial that the defendant acted maliciously
3. The restraint or confinement must be total. However, it need not take place in an
enclosed environment
4. It has been observed every confinement of a person is an imprisonment whether it
 be in a common prison, private house or in the stocks or even forcibly detaining
one in the public
5. The boundary of the area of confinement is fixed by the defendant. The barriers
need not be physical. A restraint affected by the assertion of authority is
sufficient.
6. The imprisonment must be direct and the plaintiff need not have been aware of
the restraint
7. The tort is actionable per se.
8. The principal remedy is a monetary award in damages.

PROTECTION OF CHATTELS OR GOODS

Owners of goods are entitled to enjoy their possession and control and their use without
any interference. To protect goods the common law developed 3 torts namely;
 Detinue
 Trespass to goods
 Conversion
DETINUE
This is the unlawful detention of goods. It is the oldest tort relating to the protection of
the chattels and protects possession of goods by the owner. The plaintiff must prove:-
i. Right to immediate possession
ii. That the defendant detained the goods after the plaintiff demanded their return.
The plaintiff is entitled to damages for the detention.
B. TRESPASS TO GOODS
This is the intentional or negligent interference of goods in possession of the plaintiff.
This tort protects a party interest in goods with regard to retention of their physical
condition and invariability.
Types/Forms of Trespass
1. Taking a chattel out of the possession of another
2. Moving a chattel
3. Contact with a chattel
4. Directing a missile to a chattel
Rules/Requirements of the Tort
1. The trespass must be direct
2. The plaintiff must be in possession of the chattel at the time of interference
 3. The tort is actionable per se
4. The principal remedy is a monetary award in
damages The defenses available to this tort include:-
1. Plaintiff’s consent
2. Necessity
3. Mistake

CONVERSION
This is the intentional dealing with goods which is seriously inconsistent to possession or
right to possession of another person. This tort protects a person’s interest in dominion
or control of goods.
The plaintiff must have possession or the right to immediate possession. However, a
bailee of goods can sue 3rd parties in conversion so can a licensee or a holder of a lien or
a finder. Any good or chattel can be the subject matter of conversion. There must be
physical contact resulting in interference with the goods.
ACTS OF CONVERSION
i. Taking goods or disposing; it has been observed that to take a chattel out by
another’s possession is to convert it or seize goods under a legal process without
justification is conversion.
ii. Destroy or altering
iii. Using a person’s goods without consent is to convert them
iv. Receiving: the voluntary receipt of another’s goods without consent is conversion.

However, receiving of another’s goods in certain circumstances is not actionable

for example goods received;-
i. In a market overt; the purchaser acquires a good title
ii. Estoppel; if the true owner of the goods is by his conduct denying the sellers the
right to sell, the buyer acquires a good title to the goods
iii. Goods received from a factor or a mercantile agent
iv. A negotiable instrument received in good faith
v. Goods received from a person who has a voidable title before the title is avoided
vi. Dispositon without delivery - a person who sells another goods without authority
but without delivering them to the buyer converts them
vii. Disposition and delivery - A person who sells another’s goods without authority
and delivers the same to the buyer is guilty of conversion
viii. Mis-delivery of goods a carrier or a warehouse man who delivers the goods to the
 wrong person by mistake is guilty of conversion
ix. Refusal to surrender another’s goods on demand
The principal remedy available is a monetary award in damages and the plaintiff is entitled
to the value of the goods he has been deprived. The value s determined as per the date of
conversion.
If the plaintiff suffers a pecuniary loss as per the result of the conversion he is entitled to
special damages.