VICARIOUS LIABILITY

Lecture 9
The person who commits a tort is always liable, but sometimes
a person who did not commit the tort can be held liable. This is
the case when the relationship of master and servant
(employer/employee) exists.
The reason for this common law rule is that since the master
has the benefit of his servants services, he should also accept
liabilities.
Employee/servant:-one who performs services in connection
with the affairs of the employer and over whom the employer
has control in the performance of those services.
Independent contractor:-they work for another person but are
not controlled by that other in the performance of the work
Every tort committed by an employee in the course of his
employment the employer is held liable every act which is
done by a servant in the course of his duty is regarded as done
by his masters orders, - strict tortious liability

Cont.
Ability to recover compensation; pass
on
the
loss
to
the
public;
maintenance
of
high
working
standards

Distinguishing employees from

independent contractors
1. Control
Independent contractor: told what task is to be
performed (contract for services)
Employee: the employer retains the actual
performance of the work; tells the worker not only
what task is to be performed, but how to perform it
a servant (contract of service)
Traditional analytical frame overtaken with time
changing working patterns; most employees possess
some technical skills not passed by employers
When can a power of control can be inferred?
Denning LJ - a contract of service and a contract for
services

Cont.
Stevenson, Jordan & Harrison Ltd. v Macdonald
and Evans (1952) 1 TLR 101
it is often easy to recognize a contract of service
when you see it, but difficult to say wherein the
difference [between a contract of service and a
contract for services] lies. A ship master, a chauffeur,
and a reporter on the staff of a newspaper are all
employed under a contract of service; but a ships
pilot, a taxi-man, and a newspaper contributor are
employed under contract for servicesunder a
contract of service, a man is employed as part of the
business, and his work is done as an integral part of
the business; whereas under a contract for services,
his work, although done for the business, is not
integrated into it but is only accessory to it.

Cont.
2. Personal investment in the enterprise
Lee Tin Sang v Chung Chi-Keung (1990) 2 AC
374: Is the worker in business on his own account?
Who owns the tools used, who paid for the
materials and whether the worker stands to make
anything from a profit to a loss on completion of
the enterprise
If the person engaged need not personaly invest
his endevour into the enterprise, but has the option
of delegating the task to some other person, this
is indicative of a contract for services rather than a
contract of service

Cont.
3. Intention of the parties
Terms of their agreement a contract for services or
a contract of service? not necessarily conclusive
Young & Woods Ltd v West (1980) IRLR 201
The parties agreed that the workers should be treated
as self employed for reasons of tax and national
insurance payments.
Held: this was a contract of employment
Examples of other vicarious liability:
i)Liability for partners for each others torts.
ii)Liability of a principal for the torts of his agent.

Case law
Selle v Associated Motor Boat Co Ltd (1968)(Court of
Appeal for EA) Letang VP stated
Once it is established that the relationship of master and
servant exists, it then has to be determined whether the
tortious act was committed in the course of the servants
employment. If, for instance, a driver is instructed to
transport goods from Nairobi to Nakuru and he negligently
injures a pedestrian while travelling through Naivasha (which is
on the direct route to Nakuru) the driver will be personally
liable and the employer will be vicariously liable. If
however, the driver was to travel to Machakos first (which is in
the opposite direction to Nakuru) so that he was on a frolic o
his own, and he negligently injured a pedestrian while driving
to Machakos, the master would not be vicariously liable

Deviation
A driver who does not travel in the opposite direction may
however deviate from the authorised route. It remains a question
of fact in such a case whether the deviation had the effect of
putting him on a frolic of his own.
In the Ugandan case of Nzarirehe v Kagubaire (1968) it was held
that a lorry driver who, in the course of delivering sand for his
employer , decided to go home and see his wife had not ceased to
be in the course of employment. He had done little more than
interrupting an authorised journey undertaken in relation to
his masters business.
In Muwonge v Attorney General of Uganda (1967) the Court of
Appeal for E.A stated that an act may be done in the course f the
servants employment so as to make his master liable even though
it is done contrary to the orders of the master and even if the
servant is acting delibarately,negligently or criminally for his own
benefit, nevertheless

Cont
If what he did is merely a manner of
carrying out what he was employed to
carry out then his master is liable.
The liability of an employer for a tort of an
employee which is committed while the
employer is acting contrary to his orders is
illustrated by the case of Geoffrey Chege
Nuthu v Anverali Brothers (Kenya Court
of Appeal 1997) (96).(Read the case).

Liability in respect of an
independent contractor
Lecture 10

General rule: an employer not liable for

torts committed by an independent
contractor
in
the
course
of
his
employment
Exceptions
1.Authorization from the employer
If the employer instigates or procures the
independent contractor to commit a tort.
Ellis v Sheffield Gas Consumers Co.
(1853) 2 E & B 767

Cont.
Having no legal power to do so, Ds gas undertaking
employed an independent contractor to dig up a part of
a street. C fell over a heap of earth and stones made by
the contractor in the course of digging. D were held
liable on the ground that they had authorized this
nuisance
2. Torts where intention or negligent conduct need
not to be proved
Strict liability second trimester when strict liability
under the Rule of Ryland v Fletcher will be discussed in
detail.
In some circumstances an employer is liable for the
conduct of his independent contractor

Cont.
3. Negligence
An employer can be held liable in
negligence for acts of his independent
contractor in the following instances:
i. Personal negligence on the part of the
employer e.g careless appointment of an
incompetent contractor; where a risk is
foreseeable in the absence of precautions, a
failure by the employer to provide in the
contract for those precautions

Cont.
Robinson v Beaconsfield RDC(1911) 2 Ch 188
D employed contractors to clean out cesspools in their
district. No arrangements were made for the
removal of the deposits of sewage upon their being
taken from the cesspools by the contractors. The
contractor deposited sewage on Cs land. D were
held liable for their failure to take proper
precautions to dispose the sewage.
ii. Non-delegable duties
A legal question
Some duties are discouraged from being delegated
to independent contractors and where this happens,
the employer has a duty to properly instruct and
supervise to ensure that due care is taken

Cont.
Holliday v National Telephone Co
(1899) 2 QB 392
Ds in laying telephone wires along a
street, employed an independent
contractor to solder the tubes in
which these wires were carried. In
negligently using benzolene lamp, the
contractor injured a passer-by. Ds
were held liable

Cont
4.If the employer personally
interferes with the contractor or his
servants by directing the manner in
which the work is to be done.
5. In cases where a special duty of
care is laid by statute on an
individual/class of individuals: Read
Smith v Cammel Laird and Co Ltd.

CAPACITY AND PARTIES

Lecture 11
The general rule is that all persons can sue and be
sued in tort. All persons are subject to the same laws
administered in the same courts. However, certain
persons are subject to disabilities, or posses certain
rights or privileges, under the law .
1. Corporations
Where the liability of an ordinary employer for the acts of his
employees is in issue, there are normally four possible
situations:
i. The act may be treated as an act of the employer himself so
that no issue of vicarious liability arises
ii. The employer has specifically directed the employee to
commit the tort

Cont.
i. The employer is vicariously liable for
the employees acts
ii. The employer is not vicariously liable
for the employee because the act or
omission in question falls outside the
principles of vicarious liability
The same possibilities apply where
the employee is a corporation

Cont.
The fifth possibility exclusive to corporations
was set out in Lennards Carrying Co. Ltd v.
Asiatic Petroleum Co. Ltd (1915) AC 705
[a corporation] has no mind of its own any more
than it has a body of its own; its active and
directing will must consequently be sought in the
person of somebody who for some purposes may
be called an agent, but who is really the directing
mind and will of the corporationThat person may
be under the direction of the shareholders in
general meetings; that person may be the board
of directors itself.

Cont.
For an act to be of a company, it must be
of somebody who is not merely a servant
or agent for whom the company is liable
but somebody for whom the company is
liable because his actions is the very
action of the company itself.
Corporations can sue for any tort other
than those of which in the nature of
things, they could not be victims e.g
assault

Cont.
2.
Partnerships
and
limited
liability partnerships
Partners may be jointly and severally
liable to other persons not themselves
for torts committed by anyone of them
either while acting in the ordinary
course of the business of the firm or
with authority of fellow partners

Cont.
The claimant must however show that
he relied on the individual partners
status as a partner
Where the partnership has been
established as a limited liability
partnership, the commission of a tort
by one partner will render liable both
that partner personally, and the limited
liability partnership (as principal)

Cont.
3. Husband and wife
A spouse is not responsible for the torts
committed by the other
4. Mentally disordered
Morris v. Marsden (1952) 1 All ER
925
D violently attacked C, a total stranger.
He was sued for battery and raised the
defence of insanity.

Cont.
Held: D was not in a condition of automatism
at the time of the attack but his mind
directed the blow which he struck. D was
certifiable lunatic who knew the nature and
quality of his act but because of his lunacy,
he did not know that what he was doing was
wrong. Defence of insanity held to be
inapplicable
If a mentally disordered person has that
state of mind which is required for liability in
battery, then his insanity is no defence

Cont.
All that is required in battery is that
the defendant must intend to strike a
blow at the complainant. In the above
case, the defendant was held to have
so intended
However, if a person in a condition of
complete
automatism
inflicted
grievous injury, that would not be
actionable

4. Children
Who is a child?
Infants can sue and be sued in the same way as any
other person. The only qualification is a procedural
one;an infant plaintiff sues by his next of friend (a
parent).
This is because he has no capacity to sue.
Childhood not a defence per se only where he/she
lacked the required state of mind e.g a defamatory
letter from a 9 year old
Has no capacity to sue except through a next of friend.
A parent or guardian is not in general liable for the
torts of a child.

5.Non-Citizens
Normally a non citizen is under no disability and
can sue and be sued. An enemy non citizen(e.g in
war with Kenya), however, cannot sue, but if sued
can defend the action and counterclaim.

6. Diplomats
The Privileges and Immunities Act (Cap 179).
Heads of foreign states, their accredited
representatives and staff can claim diplomatic
immunity from the jurisdiction of Kenyan courts.
They are however, still subject to Kenyan law.
No diplomatic immunity for Kenyans working in
diplomatic missions in Kenya.

7. Judges and Magistrates

Section 6 Judicature Act (Cap 8)- No
judge, magistrate and no other
person acting judicially, can be sued
in any civil court for any act done or
ordered by him in the discharge of his
official duty.
A similar protection extends to the
officers of the court acting in process
of any order of the court.

8. Government
Government proceedings act (cap 14)
Subject to liability in tort as if it were a person
of full age and capacity.
The extent of the liability of the gov. is in sec.4
4(1)liable in respect of
Torts committed by its servants or agents
In respect of any breach of those duties a
person owes his servants or agents at
common law for being an employer.

Continuation
In respect of breach of duties attaching at common law to
ownership, occupation, possession or control of property.
Section 4 (5) gov. are not liable in respect of anything done or
ommitted by someone discharging responsibility of a judicial
nature.
Sec. 16 (1) in proceedings against gov. the court cannot grant
an injunction or make an order for specific performance but
may make a declaratory order
Under Evidence Act (cap 80) Sec.131; government can refuse
to produce documents if a minister is of the opinion that it is
prejudicial to the public service on grounds of public interest.
Under Public Authorities Limitation Act (cap 39; no claim in tort
can be brought against the government or local authority after
12 months from the date which the cause of action occurred.
Outside this periods, statute is barred.

REMEDIES IN TORT
Lecture 12
1. DAMAGES
i. Nominal Damages
The interests protected does not have a
precise cash value e.g exercising ones
voting right mostly, torts that cover injury
to feelings
This damages simply marks the vindication
of a right which is held to be so important
that any infringement of it is actionable per
se
Upon proof of the tort, the court is free to
award substantial damages

Cont.
ii. Contemptuous damages
Marks the courts low opinion of the claimants
claim or disapproval of his conduct/Indicates the
courts contempt for the plaintiffs claim e.g an
award of Kshs 100.
It acknowledges that technically a legal wrong is
committed but the circumstances disclosed are
such that no action should have been brought.
Unlike nominal damages, they may be awarded
in respect of any tort, not merely those
actionable per se
They may be material in deciding whether to
allow costs to the claimant

Cont.
iii. Special damages
Damages suffered by the claimant capable
of pecuniary assessment that must be
proved in the case of all torts not actionable
per se.
These are expenses incurred by the
claimant prior to the date of the hearing e.g
hospital bill.
Thus in his/her pleadings, the claimant must
substantiate any claim for special damages

Cont.
iv. General damages
These are damages that the law
presumes to have resulted from the
defendant's tort
v. Aggravated damages
Damages are compensatory in nature
Takes into account the conduct and
motive of the defendant where they cause
anger and annoyance to the claimant

Cont.
Linked to arrogant conduct (may include his
conduct at trial) that inspires anger in the claimant
KD v. Chief constable of Hampshire(2005)
EWHC 2550
A constable, sexually harassed C over the phone and
in person by interviewing her several times in such
a away as to extract sexually explicit information
about her that was irrelevant for the investigation.
C was awarded ~10,000 general damages for
anxiety and injury to feelings and ~10,000 by way
of aggravated damages for the annoyance caused
by the constable persistently denying the
allegations when it was clear from typed and
signed statements

vi. Exemplary damages

Conduct which outrages the court
To punish and deter does this
confuse civil and criminal law?
standard of proof required
Are
damages
exclusively
compensatory in nature?
Can be obtained in connection with
virtually any tort

2. Account of profit
A claimant can seek account of profits from the
defendant rather than damages
Common to victims of passing off + an injunction
3. Injunctions
It is a remedy per se or in addition to damages
i. Prohibitory injunctions: retrains one from
repeating a tort in future
ii. Interim injunction granted before pending full
investigation and trial of the case e.g continuing
torts

Cont.
iii. Perpetual injunction: - final order issued after
the hearing of the action
iv. Mandatory injunction requires the defendant
to undertake a positive act to end a state of
affairs amounting to an actionable interference
whether or not such interference is causing
actual damage e.g pulling down a wall which
interferes with the claimants light
v. Quia timet injunction to restrain a tort which
has not yet been committed, but commission of
which is threatened; substantial damage
appears imminent

Cont.
Hampshire Waste Services Ltd. V.
intending
trespassers
upon
Chineham Incinerator (2004) Env.
LR 9. The owners of
certain
incinerators anticipated a trespass by
environmental
protestors
an
injunction was granted to prevent the
trespass from occurring without the
precise identity of the trespassers

4. Restitution of
property
Granted where the plaintiff has been
wrongly dispossessed off specific
property