This advice addresses the potential liabilities in tort arising from a road accident involving Maboshe, an employee of Quick Silver Limited. The analysis will focus on the doctrine of vicarious liability and the tort of negligence. This advice is structured into three parts, addressing the queries of Quick Silver Limited, the third parties involved in the accident, and Hamwala, the passenger. As the facts are set in Zambia, the advice will be based on common law principles which are of persuasive authority in Zambian courts, in the absence of specific Zambian statutory or judicial authority to the contrary (Brazier, 2017).
(i). Advice to Quick Silver Limited
Quick Silver Limited (QSL) seeks advice on whether it can be held liable for the accident caused by its employee, Maboshe. The primary legal issue is that of vicarious liability, a doctrine which holds an employer responsible for the torts committed by their employee during the "course of employment" (Bermingham and Brennan, 2018). For QSL to be held vicariously liable, two main conditions must be met: first, Maboshe must be an employee who has committed a tort, and second, the tort must have occurred within the course of his employment.
The first condition is straightforward. Maboshe is identified as an employee of QSL. It is also stated that the third parties "blamed Maboshe for the accident," which suggests that Maboshe acted negligently. Assuming that Maboshe’s driving fell below the standard of a reasonable driver, thereby breaching the duty of care he owed to other road users, he has committed the tort of negligence.
The second condition, whether the tort was committed in the course of employment, is more contentious and forms the central issue for QSL. Maboshe’s journey involved two deviations from his assigned task. The first was taking the Chirundu Road instead of the direct route over the Kafue Bridge. This was a necessary deviation to complete his work and would almost certainly be considered as acting within the course of his employment. He was using an authorised mode (driving) to achieve an authorised end (delivering documents).
The second deviation is more problematic: Maboshe’s decision to "pass through Siavonga at a resort where he remained for about thirty minutes." This appears to be a personal detour. The traditional test, established in cases like Joel v Morison (1834) 172 E.R. 1338, distinguishes between a "detour" (a minor deviation) and a "frolic" (a new and independent journey). If an employee is on a frolic of his own, the employer is not liable. Here, the 30-minute stop at a resort is for Maboshe's own purposes and not for QSL’s benefit.
However, the accident occurred after this stop, as he "drove to Livingstone." At this point, Maboshe had arguably resumed his journey on behalf of his employer. The key question is whether the personal detour to the resort was so significant that it severed the course of his employment entirely. Given that he was back on a road leading to his ultimate destination, a court is likely to find that he had re-entered the course of his employment.
Furthermore, Maboshe gave a lift to Hamwala, which was likely an unauthorised act. In Rose v Plenty [1976] 1 WLR 141, an employer was held vicariously liable for the negligence of an employee who, against express instructions, took a boy with him on his milk round who then got injured. The court held that although the method of performing the job was prohibited, the employee was still acting for the employer’s business. Similarly, Maboshe was performing his duty of driving to Livingstone, albeit in an unauthorised manner by carrying a passenger. The act of driving, which led to the accident, is the very thing he was employed to do. The modern "close connection" test from Lister v Hesley Hall Ltd [2001] UKHL 22 would support this, as the negligent driving was closely connected to his employment duties.
Therefore, it is likely that a court would find QSL vicariously liable for the damage caused to the third parties. The deviation to Siavonga was likely a "detour" from which he had returned at the time of the accident, and the presence of an unauthorised passenger would be seen as an improper mode of performing his duties, not an act outside his employment.
(ii). Advice to the People Against Whom the Accident Occurred
The third parties involved in the accident wish to know if they have a claim against QSL and their chances of success. They have a potential claim in the tort of negligence. They can choose to sue Maboshe personally or QSL under the doctrine of vicarious liability.
To succeed in a claim against Maboshe, they must prove on a balance of probabilities that he owed them a duty of care, that he breached this duty by his actions, and that this breach caused their loss or injury. As a driver, Maboshe owes a duty of care to all other road users. If his driving was at fault, as is alleged, he has breached this duty. If this breach caused the accident and their resulting losses, Maboshe is personally liable.
However, from a practical standpoint, suing the employer, QSL, is often a more attractive option. Employers are more likely to have the financial resources and insurance to meet a judgment debt, a principle often referred to as finding a "defendant of substance" (Giliker, 2017). The claim against QSL would be for vicarious liability.
The success of this claim depends on the same analysis conducted in Part (i). The third parties would need to demonstrate that Maboshe was negligent and that he was acting in the course of his employment when the accident occurred. As concluded above, the arguments in favour of QSL being vicariously liable are strong. The courts are likely to find that Maboshe's detour was not a complete "frolic" that broke the chain of employment, especially as he was on his way to Livingstone when the crash happened. The fact that he was driving the company van to a company-designated destination when the accident happened provides a very strong connection to his employment.
Therefore, the third parties have a strong claim against QSL. Their chances of success are high, provided they can adduce evidence to prove that Maboshe’s driving was indeed negligent and caused the accident.
(iii). Advice to Hamwala
Hamwala has suffered injuries and is considering seeking compensation. His potential claims are against Maboshe personally and against Maboshe's employer, QSL.
His claim against Maboshe is a straightforward action in negligence. As the driver of the vehicle, Maboshe owed a duty of care to his passengers, including Hamwala, to drive with reasonable care and skill. The fact that Hamwala was not a paying passenger is irrelevant to the existence of this duty (Hedley, 2016). If Maboshe’s negligent driving caused the accident and Hamwala's injuries, Maboshe will be personally liable to compensate him.
Hamwala's claim against QSL is significantly more difficult and depends on vicarious liability. The central issue is whether Maboshe was acting in the course of his employment when he gave Hamwala a lift. The act of carrying an unauthorised passenger is the key factor. While this act was considered in the claims for the third parties, it has a different legal effect in relation to the unauthorised passenger himself.
The case of Twine v Bean's Express Ltd (1946) 62 TLR 458 is the leading authority on this point. In Twine, an employer was not held liable for injuries to an unauthorised passenger given a lift by a driver who was expressly forbidden from doing so. The court reasoned that in giving the lift, the driver was acting outside the scope of his employment. The act was for his own purposes and not for the employer's benefit. This is distinguished from Rose v Plenty, where the unauthorised person was helping with the employer’s business. Hamwala was not assisting with the delivery of mail; he was merely a passenger.
Applying the reasoning in Twine, Maboshe’s act of giving Hamwala a lift was not an authorised act, nor was it an authorised act performed in a wrongful way. It was a completely unauthorised act undertaken for his own purposes. From QSL’s perspective, Maboshe was not employed to transport passengers, and in doing so, he was on a "frolic of his own" with respect to Hamwala. The employer did not authorise the creation of a relationship between their business and Hamwala, and therefore the duty of care owed by Maboshe to Hamwala does not extend to QSL via vicarious liability.
In conclusion, Hamwala has a strong claim in negligence against Maboshe personally. However, his claim against Quick Silver Limited for vicarious liability is unlikely to succeed. The courts would likely follow the precedent set in Twine v Bean's Express Ltd and find that Maboshe was not acting in the course of his employment in relation to Hamwala.
References
Bermingham, V. and Brennan, C. (2018) Tort Law. 6th edn. Oxford University Press.
Brazier, M. (2017) 'The reception of the common law in the Commonwealth: a case of cats and dogs?', Legal Studies, 37(2), pp. 187-209.
Giliker, P. (2017) Vicarious Liability in the Common Law World. Cambridge University Press.
Hedley, S. (2016) Tort. 8th edn. Oxford University Press.
Joel v Morison (1834) 172 E.R. 1338.
Lister v Hesley Hall Ltd [2001] UKHL 22.
Rose v Plenty [1976] 1 WLR 141.
Twine v Bean's Express Ltd (1946) 62 TLR 458.
