TORT 2.6C VICARIOUS LIABILITY FOR CRIMINAL ACTS
LIABILITY FOR CRIMINAL ACTIONS OF THE EMPLOYEE.
Remember that we noted earlier you should only hold the employer liable for the tort of the servant see; Trotman V North Yorkshire County Council. But the fact is that; sometimes a tort of a servant can also amount to a crime. For example Kunle, slapping Osaro amounts to the Tort of Battery and the Criminal Assault (see scenario in the beginning of this topic). Even sometimes, some actions may be purely criminal. Take for instance, a cashier of a bank defrauds a customer, should the bank be liable? The cashier was not employed/authorised to steal customers’ money nor is stealing part of his work.
In Trotman V North Yorkshire County Council; New South Wales V Lepore where the caretaker was sexually misconducting himself with the children. Both cases held that sexual assault by a caretaker/teacher was not within the course of employment and liability could not be imputed on the employers.
However, in the case of Lister V Hesley Hall ltd, (overruling the Trotman case), the court applied the “close connection test” which postulates that if the intentional tort/crime of the employee was closely connected with what he was employed to do, it would be fair and just to find the employer vicariously liable.
In this (Lister) case, the warden of a home for emotionally and psychologically unstable children (Axeholme House) was found to have systematically sexually abused the children under his care (paedophilia). The employers were held liable on the basis that there was a close connection between what the employee was employed to do and the act of abuse committed. The employment significantly contributed to the occurrence of the harm as his employment gave him the avenue to abuse. In Bazley V Curry, the employee was in charge of bathing and tucking the boys in the facility ran by his employer for emotionally unstable boys. He sexually abused one of the boys. Held, vicariously liable for the risk of molestation was materially increased due to his employment. The connection should be close though… close connection/avenue is different from mere opportunity/chance-Jacobi V Griffiths.
In Dubai Aluminium Co Ltd V Salaam, the employee of a firm of solicitors had fraudulently drafted certain documents which defrauded Dubai Aluminium Co of $45,000,000, the employers were held vicariously liable. See also Lloyd V Grace Smith and Co; Ming-An Insurance V Ritz-Carlton Ltd; Ffrench V Sestili, (where the caretaker fraudulently obtained the plaintiff’s pin and stole money via an ATM from the plaintiff’s account); Mattis V Pollock (where bouncer of employer (Flamingo Night Club) stabbed the plaintiff outside the club, employers were held vicariously liable because the employee was encouraged to maintain security through violence in the furtherance of the employer’s business); Majrowski v. Guy’s and St. Thomas NHS Trust, the employers were held vicariously liable for harassment done by their employee in contravention of Section 1 and 3 of the Protection from Harassment Act; See also Poland V John Parr and sons Ltd; Bernard V Attorney-General of Jamaica, government held liable for police shooting an innocent man who was using a phone booth. See also the Nigerian Cases of: UAC ltd V Saka Owoade (employer held liable where his employee (driver/errand boy) absconded/disappeared with customer’s goods); Dola V John (similar to UAC) above. For example; if the Drivers of GUO or Ifesinachi motors steal your luggage, the close connection test (or other justifiable considerations and circumstances) can allow you to claim from the company).
Note however that an employee’s acts of passion, vengeance and malevolence may excuse the employer from being held vicariously liable for the act of his employee. For example; the employers were NOT held liable in the following cases; Irvin V Post Office (where their postman wrote racially offensive messages on the back of an envelope addressed to the plaintiff); Deatons V Flew (where barmaid assaulted a customer who did not provoke her); AG British Virgin Island V Hartwell (where policeman shot his lover and her companion with his police revolver out of jealous rage); Warren V Henley’s Ltd (where the employee punched a customer on the nose during a row); N V Merseyside Police (where employee (policeman) allegedly raped the claimant when she was drunk).
Note also: that this does not mean that the employee would not be charged for his crime. E.g. The employee/servant can be charged for raping a minor and punished according to criminal law while the employer is sued in tort to compensate the minor’s parents possibly in millions.
From the above discussion one can just summarise the close connection test as being a policy driven formulation where employers are made vicariously liable for the acts of the employees where the facts and justice of the case so demands notwithstanding that the action is a crime. Employers are advised to guard against unnecessary liability by exercising due care and skill in their recruitment process and employ men of diligence and integrity.