On the 2nd of June, 2016, Mr. George was employed as a driver at Sister Morin Motors Ltd, a transport company owned by Madam Omorinsola Olowe. He is very hardworking a man and Madam Olowe is greatly impressed by this attribute of his. However, his only flaw appears to be his occasional reckless driving and negligence.
On the 30th of December, 2016, Lionel Iwobi who had just returned from Dubai on a business trip boarded a cab owned by Sister Morin Motors Ltd from Abuja Airport to his booked hotel at Wuse. The cab was driven by Mr. George who had just been transferred to Abuja.
Upon getting to the hostel, Lionel Iwobi was offloading his luggage only to discovered his diamond wristwatch was missing. “I bought that wristwatch £50,000 and you must produce it otherwise you will pay heavily for the loss”, Lionel Iwobi threatened. “I’m so sorry Sir, it was not intentional. Someone must have taken it when I went to ease myself and I forgot to lock the Car”, Mr George pleaded. Within a twinkle of an eye, Lionel Iwobi called his lawyer to inform him of his loss as well as his intention to sue the driver.
Lionel Iwobi has now instituted an action against Sister Morin Motors Ltd and Madam Olowe has been wondering why her company was sued for the negligence of Mr. George.
Points to Note:
1. In Law, an employer will be liable for any tort committed while an employee is performing their duties. This is the Law of “vicarious liability”.
2. For the purpose of clarity, the law of vicarious liability is that a master will be liable for the wrong committed by his servant in the course of the servant’s employment, irrespective of whether the master authorized or ratified the activity complained of, and even though he may have expressly forbidden it.
3. You’re surprised? The Law is not based on the fault of the employer but rather on considerations of social policy. Come to think of it, the employer is in the best position to pay compensation than the employee.
4. For an employer to be vicariously liable, three elements must be proved as follows:
(i) There is the existence of employer/employee relationship
(ii) The wrong was committed by the servant
(iii) The wrong was committed within the course of the servant’s employment.
4. On the first element, the master is liable for only the wrong of his servant but not that of an independent contractor.
5. The distinction between a servant and an independent contractor is this: For a servant, a master can order what is to be done as well as how it is to be done. On the other hand, in respect of an independent contractor, he can only order what is to be done. For instance, your clerk in the office is an employee while the carpenter that is just invited occasionally to repair the furniture is an independent contractor.
6. In respect of the second element, the employer cannot be vicariously liable for the tort of his servant unless it has been proven that the servant actually committed the wrong.
7. As regards the third element, for the employer to be vicariously liable, the servant must have committed the wrong in the course of his employment. In other words, an employer will not be held liable for the tortious act of a servant who was on a frolic of his own. For example, the Nigerian Police Force cannot be vicariously liable for the tort of a policeman who physically assaults his neighbour because the latter refused to greet him.
The following facts are clear from the case:
(i) Mr. George is an employee of Sister Morin Motors Ltd which is owned by Madam Olowe.
(ii) His negligence in forgetting to lock the Car led to the loss of the wristwatch.
(iii) The loss of the wristwatch occurred during the course of his employment as a driver of the company.
Therefore, Sister Morin Motors Ltd is vicariously for the negligence of Mr. George.
NB: This is not a call for employees to be lackadaisical in the course of their duty because the employer will be vicariously liable.
Mr. George will also pay severely for the loss. Apart from the heavy financial burden on him, a criminal action alleging that he stole the wristwatch may be brought against him.
THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Asaociate at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation.