Viscarious Liability in Nigerian Law
QUESTION
Assuming without conceding that after the
investigation into the death of Sylvester, a student of Bowen College in Lagos,
it was shown that Mr. Zazu, a staff of the institution, actively participated
in the incident that led to the death of Sylvester. Comment on the criminal
liability of the institution as it relates to the act of its staff, Mr. Zazu.
ANSWER
Simply put, vicarious liability imply accountability
of a person, most times a superior being for the act of another; a subordinate.
Most times, this responsibility behoves on the superior as a result of the
relationship that exists between the superior and the subordinate. Vicarious
liability imply the imposition of
liability on a person for the actionable conduct of another as a result
of the relationship between the two persons, for instance, the liability of an
employer for the actions of an employee[1].
The principle held here is that once there exist a
master/servant relationship between an employer and a tortfeasor, and it is
established that the tortfeasor committed the wrong complained of in the course
of his employment, there is s rebuttable presumption of the employer’s
vicarious liability. In such a situation, the onus is on the employer to prove
that the alleged wrong was committed by the tortfeasor not in the course of his
employment but while he was on a frolic of his own.
In denying the liability, the employer has an added
duty to exert reasonable control and supervision over those he engages.
Therefore, a mere proof by the employer that the tortfeasor committed the act
while on a frolic of his own would not discharge him from being vicariously
liable. An employer can be vicariously liable for the negligence or reckless
act of an employee, in the event that he failed to provide the necessary
control by way of instructions and other steps necessary for preventing
unnecessary risks to other employees[2].
From the above forgoing, the liability of Dowen
College, as it relates to the act of Mr. Zazu, is assumed. This is based on the
principle of law that “he who does anything through another person does it
himself”[3].
Essentially, since the relationship between Mr. Zazu and the institution is
that of contract of service, the implication is that the institution is
vicariously liable for the acts committed by Mr. Zazu in the discharge of his
designated duties. However, in order to prove this liability, the following
ingredients must be present.
·
There
must be a relationship of master and servant
·
The
servant must have committed a tort
·
The
employee is liable for the tort
·
The
tort was committed by the employee in the discharge of his employment duties.
There
must be a relationship of master and servant
There is a contract of service between the two parties
and this established the master/servant relationship between Dowen College and
Mr. Zazu. Thus, it is evidenced that the tortious act complained of emanated
from a person in his capacity as a servant / employee / agent of another
person.
The
servant must have committed a tort and liable
By virtue of the case, an investigation was conducted
and elements of the investigation showed that the servant (Mr. Zazu) actively
participated in the death of Sylvester. Therefore, the servant had committed
the tort in question and has been found liable.
The
tort was committed by the employee in the discharge of his employment duties
This is the main ingredient that can establish
vicarious liability in this case. It must be proved that the time the wrong was
committed, the Mr. Zazu was in the
process of carrying out his duties or the instructions of the employer. Thus,
there must be a direct connection between the occurrence of the incidence and
remote undertaken of his duties with the employer.
By virtue of Naude & Ors. v. Simon[4],
the institution is liable because the death of Sylvester which Mr. Zazu
actively participated in occurred during the discharge of his duty in the
school. It is a boarding school, so it is assumed that the working hour would
be 24/7. Therefore, it is not possible to say that the incidence occurred after
the school has closed because the school is presumed to be open whenever
students are in it. Separating the employee from the employer is almost
impossible in this case as affirmed in the English case of Mohamed v W.M.
Morrison Supermarket Plc. Therefore, it is concluded in this analysis that the
institution is vicariously liable in the said case of Sylvester’s death.
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