WHO IS LIABLE? By Derrick Quarshie

The world has come to understand that working in general is good for the wellbeing of an individual. One way or the other, everyone is engaged in something to refer to as a source of income of which must be legitimate. It is a fact also that most people are engaged in a master servant relationship or employer/employee relationship. In other words, we work under superiors. One thing however that cannot be taken away from work is risk. Risk as defined is the uncertainty of an occurrence of a profit or a loss. Each work is associated with its risk be it from the worker himself or the employer. Whenever an employee sustains injury in the course of his duty, it amounts to vicarious liability.

The doctrine of vicarious liability imposes liability on employers for the wrongdoings of their employees. An employer will be held liable for any tort committed by an employee during employment. To prove vicarious liability however, the person suing must prove the following elements.

That there was an employer/employee relationship or master/servant relationship

The employer is liable for the tort

That the tort was committed by the employee in the course of employment.

One may also ask the meaning of ‘’in the course of employment’’. There are a number to test developed by the courts to determine this. Traditionally, the test to determine this is the salmond test. With this, a tort will be committed in the course of employment if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master.

In the case of Mersey Docks & Harbour Board V Coggins and Grffths (Liverpool) ltd [1947] AC 1, Harbour board hired a crane and crane drivers to stevedoers. The crane driver was to be paid by the harbour board and also had the right to dismiss him. However, for the duration of the contract the crane driver was to be regarded as the employee of stevedoers. The crane driver negligently damaged goods in the course of his work. The court held that harbour board was vicariously liable for the crane driver’s negligence since the crane driver would not accept control from the stevedoers. Porter LJ defines control test to ask the question ‘’who is entitled to tell the employee the way in which he is to do the work upon which he is engaged and it is not enough that the task to be performed should be under his control, he must control the method of performing it.

On the other hand, an employee is sent to discharge certain duties at the Ghana Revenue Authority located at the Ring Road in Accra. On his way, he decides to relax and have a little fun at the bloom bar in Osu. The employer gets drunk as a results of a number alcoholic mixture he took while at there. On his way from bloom bar, he is involved in an accident and sustains serious injuries. Who then is liable? The employee is liable. Note that the employee was sent to the GRA and not bloom bar. Furthermore, the accident was as a result of the alcohol he took. He therefore acted outside his course of duty when he decided to go to the bar.

You are therefore advised to always stick to lawful instructions from your employers and make sure you act in the normal course of business to avoid liability in case of any misfortune. However, the next time you decide to act outside your scope of duty as an employee, know that you will be held for personal liability in case of any adversities.