The Doctrine of Vicarious Liability in the Nigerian Legal System

INTRODUCTION

As a type of tort, vicarious liability is where a person without fault becomes liable for the tort of another because of some pre-existing relationship between them like principal/agent relationship, employer/employee relationship. Under this doctrine, an employer/principal will be held vicariously liable for acts of his employee/agent done in the course of his employment/ in the course of carrying the principal’s instructions.

So, if Mr. A, an employee of XYZ Co Ltd deliberately or negligently injures Mr. C in the course of carrying out his duties as an employee, XYZ Co Ltd will be liable to Mr. C in damages for the injury inflicted by Mr. A.

This doctrine rests on the fundamental premise that the employer or principal is best placed financially, to pay compensation for damages caused in the furtherance of his business by his employee/agent.

In this article, we shall utilizing case laws, explore the doctrine of vicarious liability in the Nigerian Legal System.

Meaning of Vicarious liability

It should be noted that vicarious liability has been defined by text writers and in case laws as there is no statutory definition.

The Black’s Law Dictionary[1] defines vicarious liability as ‘Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.’ Vicarious liability has also been described by Malemi to be any situation where one person is liable for the conduct, or tort of another person, because of a relationship existing between them and the wrongdoer.[2] It is the only tort that considers beyond the primary tortfeasor’s liability and applies liability to an otherwise innocent party, the defendant person committing a tort in secondary liability.[3]

In Nigerian Navy v. Akpan & Anor[4], the court citing the case of Boyle v. Kodak [5] stated that ‘the principle of vicarious liability is based essentially on the existence of a relationship between a master and servant or principal and agent and or between the person or party who actually or in fact committed the tort and the person or party to be held responsible or liable vicariously for such tort than that other person or party who committed the tort, commonly known in law as the tortfeasor’.

From the above definitions, it is clear that vicarious liability requires three parties. The injured party, a person whose act or default caused the injury(tortfeasor), and a person vicariously liable for the latter’s act or default[6]. The aim for vicarious liability is to ensure that victims (including their relatives) of torts committed by employees in the course of their employment are promptly and adequately compensated[7]. Employer/master referred to includes natural or a juristic person.[8]

In Various Claimants v. Catholic Child Welfare Society[9], the rationale for vicarious liability was summarized to the effect that:

1. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability,
2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer,

• The employee’s activity is likely to be part of the business activity of the employer,

1. The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee, and
2. The employee will to a greater or lesser degree, have been under the control of the employer.

Relationships That May Give Rise to Vicarious Liability

As mentioned earlier, vicarious liability requires a special relationship between the defendant and the wrongdoer.  In other words, ‘vicarious liability in tort is imposed upon a person in respect of the act or omission of another individual, because of his relationship with that individual’[10]. Some relationships that may give rise to vicarious liability are:

1. Employer/employee relationship;
2. Principal/agent relationship;
3. Parent/child relationship;
4. Partnership relationships, amongst others.

However, it should be noted that in an employer/employee relationship, the employer may bring an indemnity action against the employee and recover damages both at common law and under statute from his employee for torts committed in the course of his employment.[11] In this case, the employee may partially bear the cost of his tort. The common law right of the employer to claim indemnity against the employee is recognized by section 5(1) of the Labour Act[12] and it provides to the effect that except where it is expressly permitted by the Act or any other law no employer shall make any deduction from the wages to be paid by the employer to the worker, provided that a reasonable deduction may be made in respect of injury or loss caused to the employer by the wilful misconduct or neglect of the worker.

The court may make an order following an indemnity action by the employer against the employee directing the employer to deduct from the salaries of the employee to recover losses suffered by the employer as a result of the wrongful act of the employee occasioned in the course of his employment. Also, the employer may, with the prior consent in writing of an authorized labour officer.[13]

Note also that the Act[14] provides that the total amount of deductions that may be made from the wages of a worker in any one month shall not exceed one-third of the wages of the worker for that month.

Where the employer insures against vicarious liability, the effect is that the burden to compensate any victim of the employee’s torts committed in the course of his employment passes to the insurer (to wit the insurance company) provided that the employer is up to date with his premium per the policy undertaken.[15]

Elements of Vicarious Liability 

The issue of vicarious liability is usually specifically pleaded. It cannot be conjured or subjected to conjecture. Vicarious liability is a matter of law. Facts must be adduced to ground same and the relief must be specifically sought.[16] It was held by the court that the requirements of the law to enable a party to an action properly take advantage of the doctrine of vicarious liability (and which by settled law operates only in the realm of torts and not contract), are and remain till date as laid down by the Supreme Court in the case of Ayankoya v. Olukoya (1996) 4 NWLR (Pt. 440) 1 and they are:

• There must be a relationship of a certain kind with the tortfeasor;
• There must be a commission of a tort, a breach of an act; or
• The wrong must be done in the course of the tortfeasor’s employment.[17]

The principle is that once there exists a 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 a rebuttable presumption of the employer’s vicarious liability. In this 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 that it was committed while he was on a frolic of his own. It should be noted that the employer has an additional duty to exert reasonable control and supervision over those he engages. Therefore, the mere proof by an employer that the tortfeasor committed the wrong while on a frolic of his own would not automatically discharge him from being held vicariously liable to the injured party[18]. Where the employer fails to provide the necessary control by way of instruction and other steps to prevent unnecessary risks to other employees, he will be held vicariously liable for the negligent or reckless acts of an employee[19].

Worthy of note is that a juristic person may be held criminally liable for acts of employees. This type of liability is otherwise known as Corporate criminal liability. Corporate criminal liability became very pronounced with the introduction of strict liability offences. (These are offences for which the mental state is not required for the commission of such offences and the penalty (a fine) was such that it could be imposed upon a corporation)[20]. An example of such statute is the Failed Bank (Recovery of Debts and Financial Malpractices in Bank) Act[21] which seeks to instill sanity into the banking industry by making it punishable for the bank or any financial institution and any of its staff who contributed in any manner to the collapse of the financial institutions.

The Consumer Protection Council Act,[22] states that “It shall be the duty of the manufacturer or distributor of a product, on becoming aware after such a product has been placed on the market, of any unforeseen hazard arising from the use of the product to notify immediately the general public of such risk or danger and cause to be withdrawn from the market, such product.” The Act also goes further to state that any person who violates this provision is guilty of an offence and liable on conviction to N50,000.00 fine or imprisonment for five years or both. Other statutes include, but are not limited to, the Companies and Allied Matters Act,[23] the Food and Drug Act[24],  the Standard Organization of Nigeria Act[25] the Weight and Measures Act[26]; the Federal Environmental Protection Agency Act[27].

CONCLUSION

Vicarious Liability consists of cases where one person is liable for the acts of others. In the law of Torts, it is an exception to the general rule that a person is liable for his acts only based on the maxim ‘Qui facit per se per alium facit per se’, meaning “He who does an act through another is deemed in law to have done it himself”. [28]

In a case of vicarious liability both the persons at whose command the act is done as well as the person who does the act are liable[29], especially where the employer decides to bring an indemnity action against the employee. It is therefore advised that an employer seeking to recover damages from his employee for the injury caused to a third-party act according to the provision of the Labour Act.

FOOTNOTES:

[1] Garner, BA (ed). 9^th ed (Minnesota: West Publishing Co., 2009) p.998

[2] Ese, M. Law of Tort (Lagos: Princeton Publishing Co., 2008) p.287

[3] https://www.lawteacher.net/free-law-essays/tort-law/history-tort-vicarious-liability-0836.php accessed 24^th of February 2022.

[4] (2021) LPELR-55838(CA)

[5] (1986) NWLR 661

[6] Per Muhammed Lawal Shuaibu, JCA in Nigerian Navy v. Akpan & Anor (2021) LPELR-55838(CA)

[7]https://lawpavilion.com/blog/comparative-analysis-of-statutory-intervention-on-vicarious-liability-under-nigerian-and-english-laws accessed 22nd of February 2022.

[8] Management Enterprises Ltd v Otusanya (19870 2 NWLR pt 55 p. 179

[9] [2012] UKHL 56; [2013]2 ACI (“the Christian Brother Case”) at 11; https://cielawtutor.com/law-of-tort/unit-5-negligence-and-occupiers-liability/vicarious-liability/ accessed 25^th of February 2022

[10] https://lawpavilion.com/blog/modern-approach-to-the-doctrine-of-vicarious-liability/ accessed 24^th of February 2022.

[11] Ibid

[12] Cap L1 Laws of the Federation of Nigeria, 2004

[13] Section 5(1) of the Labour Act Cap L1 Laws of the Federation of Nigeria, 2004

[14] Section 5(7) Ibid

[15]Bizibrains Okpeh, Modern Approach to The Doctrine of Vicarious Liability https://lawpavilion.com/blog/modern-approach-to-the-doctrine-of-vicarious-liability-citing Halsbury’s Statutes vol.22 4thedn (London: Butterworths,1991) p.2 accessed 23^rd of February 2022.

[16] Adah v. FCMB (2018) LPELR-45180 (CA)

[17] Okoye v. Okonkwo & Ors (2017) LPELR-42855(CA)

[18] Bello v Dadah & Anor (2016) LPELR-40337(CA)

[19] Techno Mechanical (Nig) Ltd v Ogunbanjo (1999) LPELR-6760(CA)

[20] https://nigerianlawguru.com/articles/company%20law/ .pdf accessed 23^rd of February 2022.

[21] Cap F2 LFN 2004

[22] Section 9(2) of the Consumer Protection Council Act Cap C25 LFN 2004

[23] Cap C20 LFN 2004

[24] Cap F32 LFN 2004

[25] Cap S9 LFN  2004

[26] CapW3 LFN 2004

[27] Cap F10 LFN 2004

[28] https://lawcorner.in/origin-and-development-of-the-tort-of-vicarious-liability/ accessed 22^nd of February 2022.

[29] Ibid