It is not necessary that A should not have
participated in any way in the commission of the tort nor that a day owed in
Law by A to C shall have been broken.
What is required is that A should stand in particular
relationship to B and that B’s tort should be referable in a certain manner to
that relation.
The commonest instance in Law is the liability of a
master for the torts of his servants. Vicarious liability generally arises from
a contract service.
MASTER-SERVANT RELATIONSHIP.
Who is a servant?
Since vicarious liability under Kenya law generally arises from a
contract of service (“servant”) not a contract of services (“independent
contractor”) it is important to determine the indicia if a contract of service.
In an often cited statement in Short v. J & W Henderson Ltd Lord Thankkerton said that there are four indications of a
contract of service;
a)
The
master’s power of selection of is servant
b)
The
payment of wages or other remuneration
c)
The
master’s right to control the method of doing the work, and
d)
The
master’s right of suspension
This list has been found helpful in determining
whether a master-servant relationship exists but it is not conclusive. It is not possible to compile an exhaustive
list of all the relevant considerations.
The court stated in Market
Investigation Ltd v. Minister of Social Security (1969 ) per Cooke J:
The most that
can be said is that control will no doubt always have to be considered,
although it can no longer be regarded as the sole determining factor; and that
factors which may of importance are such
matters as whether he hires his own equipment, whether he is own helpers, what degree of financial
risk he takes, what degree of
responsibility for investment and
management he has, and whether and how
far he has an opportunity of
profiting from sound management in the performance of his task.
The control test is however not conclusively
determinant of master-servant relationship especially when dealing with
professionals or men of a particular skill.
In Morren v.
Swinton the defendants engaged a firm of consultant engineers to supervise
the construction of certain sewage works.
Under the contract, the defendants were supposed to appoint a resident
engineer (to be approved by the consultants) to supervise the works under the
general supervision and control of the consultants.The plaintiff was appointed
as a resident engineer by the defendant and approved by the consultants
pursuant to the terms of the contract.
He was paid by the defendant and was entitled to holidays with pay and
was liable to be dismissed by the defendants.
He was however delegated to the consultants and was under their general
supervision and control
Held: Absence of control by the defendant was not necessarily the
most important test. The other factors were enough to show that
the plaintiff was clearly employed by the defendant under a contract of
service.
It is thus important to state that whether or not a
contract of service exists will depend on the general nature of the contract
and no complete general test exists.
More helpful is the well-known statement of Denning L. J. in Stevens v.
Brodribb Co. Pty. Ltd.
“It is often easy to recognize a contract of service
when you see it, but difficult to say wherein the distinction lies.One feature
which seems to run through the instances is that, under a contract of service,
a man is employed as part of a business, and his work is done as an integral
part of the business; whereas under a contract of services, his work, although
done for the business, is not integrated into it but is only an accessory to
it.”
An independent contractor will commonly be paid “by
the job” whereas a servant will generally receive remuneration based upon time
worked. But a piece worker is still a
servant; and a building contractor is under a contract of service
notwithstanding that it may contain provisions for payment by time.
Once the Master-servant relationship is established,
the master will be liable or all torts committed by the servant in the course of the employment.
a) Hospitals
It has held that radiographers, house surgeons, house
time-assistant medical officers and probably staff anesthetics are employees of
the hospital authority for various liabilities. But visiting consultants and surgeons are not employees
of the hospital and thus the hospital is not liable.
In Hillyer v. St-Bartholomew’s Hospital the
plaintiff bought an action against the governor of a hospital for injuries
allegedly caused to him by negligence of an operating surgeon. The hospital was a charitable body.
Held: That the action was not maintainable.
The court further stated that the only duty undertaken by the governors of
public hospital towards a patient who is treated in the hospital is to use due
care and skill in selecting their medical staff. The relationship of master and servant does
not exist between the governors and the physicians and surgeons who give their
service at the hospitals (i.e. who are not servant of the hospital.) The court
further stated that the nurses and other and other attendants assisting at the
operation cease, for the time being, to be the servant o the governor, in as
much as they take their orders during that period from the operating surgeon
alone and not from the hospital authorities.
Where there is a contract between the doctor and the
patient, the hospital is not liable.
A hospital is thus liable for negligence of doctor and
surgeons employed by the hospital authority under a contract of service arising
in the course of the performance of their professional duties. The hospital owes a duty to give proper
treatment to its patients.
In Cassidy v.
Minister of Health the plaintiff entered a hospital for an operation of
this left hand, which necessitated post-operational treatment. While undergoing the
treatment he was under the care of a surgeon who performed the operation
and who was a whole-time assistant medical officer of the hospital, the house
surgeon and members of the nursing staff, all of whom were employed under a
contract of service. At the end of the
treatment it was found that his hand had been rendered useless.
Held: The hospital was liable
A hospital may also be liable for breach of duty to
patients to provide proper medical service although it may have delegated the
performance of that duty to persons who are not its servants and its duty is
improper or inadequately performed by its delegate.
An example is where the hospital authority is
negligent in failing to secure adequate staffing as where a delegate is given a
task, which is beyond the competence of a doctor holding a post of seniority.
b) Hired Servants
A difficult case arises where A is the general
employer of B but C, by an agreement with A (whether contractual or otherwise)
is making temporary use of B’s services.
If B, in the course of his employment commits a tort
against X, is it A or C who s vicariously liable to X? It seems that it must be one or the other but
not both A&C.
In Mersoy Docks
and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. A employed B as the driver of
a mobile crane. A let the crane to C
together with B as driver to C. The
contract between A and C provided that B should be the servant of C but was
paid by A and A alone had the power to
dismiss him. In the course of loading a
ship, X was injured by the negligent way in which B worked the crane. At the time of the accident C had the
immediate direction and control of the operations to be executed by B and crane e.g. to pick up and move a pieces
of cargo, but he had no power to direct how B should work the crane and
manipulate its controls.
Held: That A as the general or permanent
employer of B was liable to X. The court
that there is a very strong presumption that a servant remains to be the
servant employer although he may be the servant of the hirer.
The question whether A or C is liable depends on how
many factors; e.g. Who is the paymaster,
who can dismiss, how long does the alternative service last, what machinery is
employed etc.
The courts have however generally adhered to the view
that the most satisfactory test is, who at the particular time has authority to
tell B not only what he is to do, but how he is to do it. This is question of fact involving all he
circumstances of the case.
c) Loan of Chattels
In Omrod v.
Crosville Motor Services Ltd. (1953) the owner of a car was attending the
Monte Carlo motor rally. He asked a
friend to drive his car from Birkernhead to Monte Carlo where they were to have
a holiday together. During the journey, on a diverted route, the car was
involved in an accident.
Held: At the time of the accident, the car
was being used wholly or partially for the owner’s purposes and thus the friend
was agent of the owner and in so far as the friend was liable of negligence,
the owner was vicariously liable for his negligence.