Your second client at the law clinic is Barry Abanks (see the Week 6 Discussion
ID: 1143266 • Letter: Y
Question
Your second client at the law clinic is Barry Abanks (see the Week 6 Discussion Post for the background to this scenario if you have not done so already). Barry works for Anderson City Council, and has been employed for the past 3 years as a Community Transport Bus Driver. His job is to drive a mini bus around the city on a designated route for the benefit of elderly people. His day consists of picking up older members of the community and driving them to hospital appointments, grocery stores etc….
Unfortunately two weeks ago he was involved in his first wreck on the job. As he was turning from Boulevard onto north-bound Hwy 81, he swerved to avoid a squirrel that ran across the road, and in doing so, he struck another car driving towards him on the other side of the road. He was clearly at fault, and although no criminal action is being taken against him by Anderson Police, he has already received notice of legal proceedings from an attorney acting for the driver of the vehicle he hit. When he took the paperwork into his superior at Anderson City Council he was told “it’s not their problem, it’s his,” and the Council wanted nothing to do with the legal action against him. He’s very concerned and is asking for your advice. Specifically, he wants to know:
Is Anderson City Council liable for the accident? If so why? If not, why?
Would your advice be different if during the course of the conversation, you discovered:
Barry had been drinking the night before, and was very hung over at the time of the accident, and that Anderson Police are considering charging him with driving under the influence.
Barry told you that the accident took place in a part of town that is not on his usual route. He was only driving on Boulevard in the first place because he’d stopped off at Anderson University to pick up a prospectus about taking night classes next year.
Explanation / Answer
This case of vicarious liability. Vicarious liability is an English tort law which imposes strict liability on the employers for the wrong done by their employees while they are doing their duties. Generally one person is not liable for the tort done by another person. But in employer employee relationship, the scenario is different. Under the law of strict liability the master is strictly liable for the wrong done by the servant during the course of employment. But simply the employer cannot be held liable for the wrong done by his employee. In order to establish the liability of an employer over the wrongful act of the employee certain conditions must be satisfied.
The condition for the tort of vicarious liability is that there must be a relationship of a certain kind and the wrong act must be committed during the course of employment.
The wrongdoer must be an employee of the employer but not an independent contractor and the employee must have committed the wrong during the course of employment. In such situation it has to examine whether the master servant relationship exist and how it can be determined. In early test the court applied the rule that whether the master has control over the doing of the servant and the way on which it was done. But this method was proved to be inappropriate to determine the employer employee status in case of borrowed workers. Later the courts applied multiple tests to determine the employer employee status and cases where decided in different circumstances to determine the labiality of the employer.
In the context of multiple tests, the relationship between the employer and employee can be inferred in the following ways.
1. Master and servant relation, 2. Owner and independent contractor, 3. Principal and agent, 4. Firms and its partners, 5. Guardian and wards and company and its directors.
The case of Barry Abanks and Anderson city council reflects the relation in the form of master and servant relation.
A master is held liable for wrong done by the servant to a third person during the course of employment when wrongful act authorized by the master, a legal act authorized but done in wrongful means. The act must be committed in the course of employment of the master’s business. But the act must not be merely coinciding in time with it. A master is held liable for any tort beyond the scope of employment if he expressly authorized the act and later rectified it.
The Adersion city council is liable for the incident because Abank was driving the vehicle for his master and the incident took place during the course of employment. The driving was authorized by the Council. Even if Barry changed the route of the bus, the council is liable as the act is authorized but it is done in wrongful means. Even if he is under the influence of alcohol also the council is liable for his tort as the authorized act is done in wrongful means. A master is also liable for the tort of a third party when the servant perform the act without due diligence and care.
Thus in the context of the above noted liability of master to the wrong of servant it can be conclude that Aderson City Council is liable for the tort committed by Barry.
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