This advice will examine the possible liabilities in the tort of negligence and under the doctrine of vicarious liability which have arisen from a road accident caused by Maboshe, who is an employee of Quick Silver Limited. This advice will be provided to Quick Silver Limited, the third parties injured in the accident, and Hamwala, a passenger in Maboshe’s vehicle. As the events occurred in Zambia, this advice will apply principles of English common law, which are understood to be of persuasive authority within the Zambian legal system where there is no conflicting local legislation or case law (Jones, 2019).
Advice for Quick Silver Limited
Quick Silver Limited (QSL) requires advice regarding its potential liability for the actions of its employee, Maboshe. The central legal doctrine here is vicarious liability, which can make an employer liable for a tort committed by an employee if it was committed “in the course of employment” (Smith, 2020). For this doctrine to apply, two conditions must be satisfied. First, there must be an employment relationship and the employee must have committed a tort. Second, the tort must have been committed during the course of that employment.
The first condition seems to be met without difficulty. The facts state that Maboshe is an employee of QSL. It is also presumed that he has committed the tort of negligence. The third parties blame him for the accident, which implies his driving was at fault. If his driving fell below the standard of a reasonably competent driver, causing foreseeable harm, then he has committed a tort.
The second condition is more complicated and is the main issue for QSL. This concerns whether Maboshe was acting in the course of his employment when the accident happened. His journey involved two main deviations from his instructions. The first deviation was taking Chirundu Road instead of the Kafue Bridge. This was done to complete the task he was employed to do, which was delivering documents. This would be seen as part of his employment, as he was still acting for his employer’s purpose.
The second deviation, stopping at a resort in Siavonga for thirty minutes, is more difficult for QSL. This appears to be a personal trip. The classic case of *Joel v Morison* (1834) 172 E.R. 1338 is relevant here. In that case, the court distinguished between a “detour” and a “frolic”. If a servant takes a small detour from his route for his own ends, he is still in the course of employment. However, if he goes on a “frolic of his own”, undertaking a journey for purposes unrelated to his employment, the employer will not be liable. Maboshe’s stop at a resort was for his own pleasure and was not related to QSL’s business.
However, the accident did not happen during this stop. It happened after he left the resort and was driving towards Livingstone, his final destination for the delivery. At this point, it is arguable that he had finished his “frolic” and had resumed his duties for his employer. A court would likely consider that by continuing on the road to Livingstone, he had re-entered the course of his employment. The personal detour was over, and he was once again engaged in the task of driving for QSL.
Another issue is that Maboshe gave a lift to Hamwala, which was an unauthorised act. The case of *Rose v Plenty* [1976] 1 WLR 141 concerned a milkman who, against his employer’s express instructions, employed a child to help him on his rounds. When the child was injured due to the milkman’s negligent driving, the employer was held vicariously liable. The Court of Appeal decided that although the employee was acting in a prohibited way, he was still acting for the purposes of the employer’s business. In our case, Maboshe’s main task was driving for QSL. Giving a lift to Hamwala can be seen as an unauthorised way of performing his job, rather than an act outside of his employment altogether. The modern test, from *Lister v Hesley Hall Ltd* [2001] UKHL 22, asks whether there is a “close connection” between the employee’s tort and his employment. The negligent driving that caused the accident is very closely connected to the job Maboshe was employed to do.
Therefore, it is likely that QSL would be found vicariously liable for the injuries and damage caused to the other road users. The stop at the resort will likely be seen as a frolic from which Maboshe had returned at the time of the accident.
Advice for the Third Parties
The third parties who were involved in the accident want to know if they can make a successful claim. They have a claim in the tort of negligence. They can either sue Maboshe directly, as the driver who caused the accident, or they can sue his employer, QSL, under the principle of vicarious liability.
For a claim in negligence against Maboshe to succeed, the third parties must establish three elements: that Maboshe owed them a duty of care, that he breached that duty, and that his breach caused their loss. It is well established that a driver on a public road owes a duty of care to other road users, including other drivers and their passengers. This satisfies the test set out in *Caparo Industries plc v Dickman* [1990] UKHL 2, as the harm was a foreseeable result of negligent driving, there was a relationship of proximity between the road users, and it is fair, just and reasonable to impose a duty.
To prove a breach of this duty, the third parties must show that Maboshe’s driving fell below the standard of a reasonable and competent driver. The fact that he was “blamed for the accident” suggests there is evidence of fault, such as speeding or a lack of attention. The third parties would need to rely on evidence like police reports and witness testimony to establish this breach.
Finally, they must prove causation. This has two parts: factual causation and legal causation. Factual causation uses the “but for” test from *Barnett v Chelsea & Kensington Hospital Management Committee* [1969] 1 QB 428. In that case, a man went to hospital after drinking poisoned tea, but the doctor on duty negligently failed to examine him. The man later died. The hospital was not liable because evidence showed the man would have died even if he had been properly treated; therefore, ‘but for’ the doctor’s negligence, the man would have died anyway. Here, it is clear that but for Maboshe’s negligent driving, the accident and the resulting harm would not have occurred. Legal causation requires the damage not to be too remote a consequence of the breach. In road accidents, property damage and personal injury are considered foreseeable types of harm, as established in *The Wagon Mound (No. 1)* [1961] AC 388.
So, Maboshe is personally liable. However, it is often more practical to sue the employer. This is because employers are more likely to have insurance and the financial means to pay compensation (the “deep pockets” principle). The claim against QSL would be for vicarious liability. The success of this claim rests on the analysis given in the previous section. As concluded there, the claim is strong. A court is likely to find that Maboshe was acting in the course of his employment when the accident occurred.
In conclusion, the third parties have a strong claim against both Maboshe and QSL. Their best course of action would be to sue them both jointly.
Advice for Hamwala
Hamwala was injured while a passenger in the vehicle and wants to know if he can claim compensation. He has a clear claim against Maboshe, but a claim against QSL is much less likely to succeed.
His claim against Maboshe is a standard negligence action. As a driver, Maboshe owed a duty of care to his passengers to ensure their safety. By driving negligently and causing the accident, he breached this duty, and this breach caused Hamwala’s injuries. Therefore, Maboshe is personally liable to Hamwala.
Hamwala’s claim against QSL depends on whether Maboshe was acting in the course of his employment in relation to Hamwala. The key fact here is that Hamwala was an unauthorised passenger. The leading case on this point is *Twine v Bean’s Express Ltd* (1946) 62 TLR 458. In that case, a lorry driver gave a lift to a person, despite being expressly forbidden by his employer from doing so. The passenger was killed in an accident caused by the driver’s negligence. The court held that the employer was not vicariously liable. The driver was employed to drive a van, not to give lifts to passengers. In giving the lift, he was acting outside the scope of his employment; it was an act done for his own purposes, not his employer’s.
This can be distinguished from *Rose v Plenty*, which was discussed earlier. In *Rose*, the unauthorised person was helping the employee with his work, so he was acting for the employer’s benefit. Hamwala was not helping Maboshe deliver documents; he was simply a passenger. Therefore, Maboshe’s act of giving Hamwala a lift was not a wrongful way of doing his job, but was an independent act that was entirely outside the scope of his employment. In relation to Hamwala, Maboshe was on a “frolic of his own”.
In conclusion, Hamwala has a strong claim in negligence against Maboshe. However, a court is very likely to follow the authority of *Twine v Bean’s Express Ltd* and decide that his claim against Quick Silver Limited for vicarious liability will fail.
References
- Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford: Oxford University Press.
- Jones, M. (2019) Textbook on Torts. 14th edn. Oxford: Oxford University Press.
- Smith, A. (2020) Vicarious Liability in the Modern Law. Hart Publishing.
- Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
- Caparo Industries plc v Dickman [1990] UKHL 2.
- Joel v Morison (1834) 172 E.R. 1338.
- Lister v Hesley Hall Ltd [2001] UKHL 22.
- Rose v Plenty [1976] 1 WLR 141.
- The Wagon Mound (No. 1) (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd) [1961] AC 388.
- Twine v Bean’s Express Ltd (1946) 62 TLR 458.
