 Concept:

 A person who reaps the benefit of another person’s work must

bear the burden arising from such work – or he who does a
thing through another does it himself and if any wrong is
committed by another, he must bear the burden of
compensating those who suffer from such wrong.
 This doctrine provides an incentive for employers to exercise
care in the selection, training and supervision of all employees.
 Note that most employers have “deeper pockets” than their
employees, which means that if the employee does not have
sufficient resources to pay for the injury, the employer’s
superior economic position will help ensure the injured party
will be properly compensated.
 An employer may not be a party to the tort but is liable
for the tort of his employee, if two conditions are
satisfied:
 (a) the person who committed the tort was an employee; and
 (b) the person committed the tort in the course of his or her
employment.
 At common law three tests are used to determine
whether a person was an employee at the time the
harm was caused by him to P.
1. The Control test;
2. The Integration and Organisation test; or
3. Mutuality of obligations test
 A contract of service (not a contract for services)
 A person is an employee if he works under a contract of
service, and the employer retains control of the actual
performance of the work.
 The question is whether or not the employee was carrying on
the business of his employer for which he was being paid
wages or remuneration.
 Economic reality of the relationship is the decisive factor.
 “Under 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”.
 For example, a car driver or a lorry driver employed to
drive cars and paid a salary is an employee of the
person who employs him.
 See also: Market Investments Ltd v Minister of Social
Security
Market Investments Ltd v Minister of Social Security
 Cooke J :
‘The fundamental test to be applied is this: “Is the person who has
engaged himself to perform these services performing them as a
person in business on his own account?”
Factors which may be of importance are:
1. whether the person performing the services provides his/her own
equipment,
2. whether the person hires his/her own helpers,
3. what degree of financial risk he/she takes,
4. what degree of responsibility for investment and management
he/she has,
5. whether and how far he/she has an opportunity of profiting from
sound management in the performance of his/her task.’
 There must exist an essential degree of mutuality to make
the relationship between two persons as that of
employer and employee.
 Where the arrangement between P & D goes no further
than a licence by D to P to offer himself as a caddie for
individual golfers and there were no mutuality of
obligations between P and D, P is not an employee.
 Employer/employee
 School/teacher
 Church/churchwarden
 Hospital/doctor
 Once it is established that the tortfeasor is an employee,
the employer will only be liable if P can prove that the
tortfeasor had committed the tort in the course of his
employment.
 If an employee’s conduct is totally unconnected with his
employment, the employer is not liable.
 A person is deemed to be in the employee’s course of
employment if he does a wrongful act authorised by the
employer or does an authorised act in a wrongful and
unauthorised manner.
 Application:
 An employer is liable for a tort, whether committed negligently
or intentionally by an employee in the course of his or her
employment.
 The employer is also liable where the employee’s wrongful acts
were so closely connected with his employment that it would
be fair and just to hold the employer vicariously liable.
 The doing of an act prohibited by the employer does not
necessarily make the employee’s act as falling outside
the course of employment.
 However, where a prohibition limits the sphere of
employment, the employer may not be liable.
 See e.g.:
 Limpus v London General Omnibus Co (1862)
 Rose v Plenty [1976]
 Where an employee does something totally
unconnected with his job, he is said to be on a frolic of
his own and the employer is not liable.
 However, some deviation from the assigned work may still
be within the course of employment.
 But whether an employee was on a frolic of his own is
difficult to determine and depends upon the degree of
deviation.
 e.g. it may depend upon the period of absence of the
employee, physical distance of deviation and the purpose of
deviation.
 In cases where the employee’s job is to drive vehicles if an
accident occurs when the employee has deviated from the
prescribed route the liability of the employer depends on
whether at the material time the driver was acting within the
course of his employment and for the employer’s benefit and
purposes?
 And whether the employee’s omission or act was incidental
or part of his job.
 Some deviations are obviously inevitable otherwise it would
deter employees performing their jobs efficiently and there
would be no opportunity to exercise their discretion.
 But cases where the employer has not been held liable have
been largely those where P has been unable to prove that
the employee was acting within the course of his
employment and/or for the employer’s benefit or purpose.
 In Lister v Hesley Hall Ltd, the central issue was whether the employers of
the warden of a school boarding house, who sexually abused boys in his
care, should be vicariously liable for his torts.
 Children with emotional and behavioural difficulties were sent to this
boarding school by local authorities. The employer entrusted the care of
the children to the warden. The warden, however, systematically and
sexually abused them, including the appellants, allowed them to watch
violent and X-rated videos. Criminal charges were laid against the
warden for offences of sexual abuse and he was sentenced for seven
years’ imprisonment.
 The House of Lords held that what the warden did and what he was
authorised to do were so closely linked that the employers could not
escape liability.
 An employer, except in certain special circumstances, is
not vicariously liable for any act or omission of an
independent contractor.
 Those special circumstances include:
 Delegation of Non-delegable Duties
 Liability imposed by Legislation
 Where the law imposes a strict or absolute duty or a non-
delegable duty upon a person, he cannot discharge that
duty by delegating the performance of work to an
independent contractor, e.g. hospitals cannot delegate
their duty of care to their patients.
 Where extra hazardous activities are carried on by an
independent contractor employed by the defendant,
the defendant may be liable for any injury caused by the
independent contractor to the plaintiff. This is so
because, the employer of the independent contractor
owes a personal duty to take care of the plaintiff.
 Sometimes legislation imposes strict liability and an
employer is personally liable, although the plaintiff’s injury
was in fact caused by the negligence of an independent
contractor employed by him.
 An employer is not only liable for torts committed against
a third party, he is also liable for torts committed by
employees against one another.