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Article

Vicarious Liability
@2018-01-13 18:28:58

INTRODUCTION:

The law on vicarious liability is well settled. Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. It is also referred to as “Imputed negligence” or “Imputed Liabilty”.

The employer is charged with legal responsibility for the negligence of the employee because the employee is held to be an agent of the employer. If a negligent act is committed by an employee acting within the general scope of his or her employment, the employer will be held liable for damages.

PRECEDENTS:

Let us now proceed to digest some decided cases on the subject thus;

The Court of Appeal sitting in Nairobi in Civil Appeal No. 31 of 1981 (CA – Nairobi) Anyanzwa – Vs- Gasperis held

  1. For one to establish vicarious liability it must be shown that the agent at the material time was acting on the owner’s behalf and for the owner’s benefit.
  2. A third  party who has been injured by the negligent act of a driver of an insured motor vehicle of another person may have his damages satisfied by the Insurer of the motor vehicle only if the driver … was joined as a defendant, his negligence established and Judgment obtained against the driver or his employer. It is also  conditional that the Insured motor vehicle was at the material time being driven by the driver as an authorized driver within the terms of the policy of Insurance.

In Shighadi -Vs- KP & LC & Another [1988] KLR 682 Honourable Mr. Justice Bosire sitting in Mombasa held

  1. The owner of a vehicle is liable not only for the negligence of  a driver, If that driver is his servant acting in the course of his employment, but also if the driver is his agent… with the owners consent, driving the car on the owners’ business or for the owners’ purposes.
  2. ….. the first defendant did not owe a duty of care to persons who, like the plaintiff, were carried in its vehicles as unauthorized passengers.
  3. If the …. Act of giving the plaintiff a lift fell outside the scope of his employment, the absence of a notice on the vehicle dash board to the effect that unauthorized persons were not permitted in it would not, of itself without more, bring the act of lifting the plaintiff within the scope of his employment.
  4. The first defendant was therefore not liable for the injuries sustained by the appellant in the accident.

The Court of Appeal sitting in Mombasa in Civil Appeal No. 119 of 1986 Khayigila –Vs- Gigi & Co. Ltd & Another [1987]KLR 76  held

  1. In order to fix liability on the owner of a car for the negligence of its driver it was necessary to show either that the driver was the owners  servant, or that at the material time the driver was acting on the owners behalf as his agent.
  2. To establish the existence of the agency relationship it is necessary to show that the driver was using the car at owners request, express or implied, or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.
  3. At the time of the accident the 2nd  Respondent was not using the car at the 1st Respondents request but he was using it furtively against its instructions and therefore no liability attached to the 1st Respondent on the well known principle of respondent superior.

The Court of Appeal sitting in Mombasa  in the case of Nakuru Automobile House Ltd –Vs- Ziaudin [1987] KLR 317 the Court of appeal had occasion to refer to the case of Anyanzwa –Vs- Gasperis [1981] KLR 10. Their holding was similar and further went on to add;

  1. That the Company did not participate in the decision to lend its vehicle…. and it was kept out of the decision by the  managing  director who lent the vehicle. The Company had nothing to benefit from the use of the vehicle…
  2. The appellant Company’s vehicle was not being used wholly or partly for the appellants company business or purpose and the company could not be liable for any negligence on the part of the driver.

In Lukungu –Vs- Lobia [2003] 1 EA 129 ( SCU) the supreme Court of Uganda sitting at Mengo while upholding the decision of the Court of Appeal cited the leading Judgment of Berko JJA with approval

          [[…. As I understand the authorities, the law at present makes the owner or bailee of a car vicariously responsible for the negligence  of the person driving it, if but only if, that person (a) is his servant and driving the  car in the course  of  his employment, or (b) his authorized agent driving the car for and on his behalf.  …… the mere permission to drive the car is not enough to create vicarious Responsibility for negligence]]

 In Smolen –Vs-  Lubowa [1975] 1 EA 217 (CAK) the Court held that where a driver is driving a car he was employed to drive, a prima facie case is made out that he was acting within the scope of his employment. The Honourable Judge made reference to the Editorial Note to Twine –Vs-  Bean’s Express, [1946] 1 ALL ER 202 where it was held

          [[ The duty owed by an employer to persons who may be injured by the negligent driving of his servant is limited  to those  who can reasonably be anticipated as being possible subjects of injury…..]]

 

PRINCIPLES AT A GLANCE:

From all the authorities cited above, the following emerge as the broad principles governing vicarious liability.

  1. It must be shown that the agent at the material time was acting on the owners behalf and for the owners benefit.
  2. The insured motor vehicle must have been driven at the material time by the driver as an authorized driver within the terms of the policy of Insurance.
  3. The driver must have been driving in the course of his employment and with the owners consent, on the owners business or for the owners purposes.
  4. The owner cannot be held liable to persons who were carried in its vehicles as unauthorized passengers as the owner did not owe a duty of care to such persons.
  5. If the act of carrying persons fell outside the scope of employment, the absence of a Notice on the vehicles dashboard to the effect that unauthorized persons were not permitted to be carried in the vehicle would not bring the act of carrying such persons within the scope of employment.
  6. If no benefit accrues to the owner no liability arises
  7. Even if permission to drive the car is given that in itself is not enough to create vicarious responsibility for negligence.
  8. If the Company’s vehicle was not being used wholly or partly for the benefit of the Company’s business or purpose the company could not be liable for any negligence on the part of the driver.
  9. Only an authorised driver acting within the scope of his employment can make the owner liable.
  10. The owner is liable for only injury to persons reasonably anticipated as being subjects of injury and not otherwise.- i.e those to whom the owner was aware were on its motor vehicle.

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

 

 


By: C.F. Otieno

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