Salmond, on tort posits that a wrong is committed within the course of employment if; a. It is expressly authorised by the employer

2. 
   It is an unauthorised way of doing what the employee was authorised to do.
   
3. 
   That which is incidental to the employee’s employment.
   

b. An unauthorised way of doing an authorised act.

Where an act is authorised but executed unlawfully, the employer would nevertheless be liable. In Century Insurance Co v Northern Ireland Road Transport Board, the employer was vicariously liable where his driver struck a match while transferring petrol from the tanker to a reservoir and an explosion ensued. In Popoola v Pan African Gas Distributors Ltd a similar conclusion was reached on similar facts. The following principles have been held to apply here.

:: Where it is a prohibition limiting conduct, the employer would still be vicariously liable.

In Limpus v London General Omnibus Company, vicarious liability was construed where the employee, contrary to express prohibition raced with the bus and had an accident with the employer’s bus. In Canadian Pacific Railway Company v Lockhart, contrary to company policy, the employee drove an uninsured car and injured the plaintiff. Held, employers were vicariously liable. In Rose v Plenty, vicarious liability where the milkman, contrary to express instructions engaged the plaintiff a minor.

It all seems to show that the court would hold the employer liable because the tort was committed by the servant in the furtherance of the employer’s interest.

:: The employer can be exculpated where the prohibition limits the scope of employment.

In Beard v London General Omnibus Company, a conductor drove a bus and injured the plaintiff was held to be acting outside his scope. Thus personally liable. Jarmakani Transport ltd v Abeke; A servant of the defendant had disobeyed instructions and taken a passenger aboard the lorry. On the lorry, was the inscription; “passengers not allowed” the Supreme Court held that the prohibition curtailed the scope of employment and the employee was acting outside the scope of his employment. Twine v Beans Express the court posited that it was outside the driver’s scope of employment to pick up passengers therefore employers were not liable.

c. That which is Incidental to his Employment.

In Smith v Stages, employees were sent to another jurisdiction to work. They worked non-stop and decided to return, on the way to back, there was a crash and they were severely injured. The court held that the men were still acting in the course of their employment.

In Poland v John Parr and sons Ltd, vicarious liability was imposed where employee assaulted a boy he thought was stealing from his employer’s goods. The nature of his job requires thieves to be warded off. In Staton v NCB, the court held that cycling across the employer’s premises after work to collect wage was incidental to the employment.

What happens in detour situations or in situations where the employee is on a frolic of his own? i.e. where madam tells the driver to go and pick the children at Yaba and he drives to Lekki and has an accident with Madam’s car in Lekki? In detour situations, we look at the degree and purpose of the detour. To determine whether the employee was on a frolic of his own. In Heasmans v Clarity Cleaning Co, the employee was employed to clean telephone booths. While cleaning, he began to make long calls. Held that calling was not incidental to cleaning. Employers not liable.

In Whatman v Pearson, the employee was still within his course of employment where he drove his employer’s horse home to eat contrary to instructions. Because the detour was incidental to his employment. However, in Storey v Ashton, the court held that an employee who after business hours had driven to a friend’s house was not within the course of his employment, and the trip had nothing to do with his employment. In Williams v Hemphill, the children of the employer asked the driver to detour and the court held that it was within the course of his employment since he was intructed by his employer’s children and was not on a frolic of his own.
LIABILITY FOR CRIMINAL ACTIONS OF THE EMPLOYEE.

A tort of a servant can also amount to a crime. For example assault, battery, defamation, conversion, and so on. Look at the Mrs Jollygood situation.

Some courts have posited that it is wrong to hold an employer liable for illegal acts of the employee. Just tort. In Trotman v North Yorkshire County Council, where the caretaker was sexually misconducting himself with the children. Held, sexual misconduct is the direct opposite of what the employee was employed to do. In New South Wales v Lepore, sexual assault by a teacher was not within the course of employment.

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 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. Lord Millet distinguished mere opportunity from special position of trust in this case. The former being a mere advantage which may not ground vicarious liability.

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.

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 million, the employers were held vicariously liable. In Ming An Insurance v Ritz-Carlton Ltd, the court applied the close connection test to a situation where the doorman injured the plaintiffs while driving his employer’s limousine to get food for his friends. The court submitted that the close connection test should be used for situations of detour and where the employee is acting outside the scope of his employment. In Ffrench v Sestili (2006), vicarious liability was construed by the relationship of trust, dependence and vulnerability. Where the caretaker (provided by the defendant Agency) fraudulently obtained the (disabled) plaintiff’s pin and stole money via an ATM from the plaintiff’s account.

In Mattis v Pollock the court found the employers (Flamingos Nightclub) vicariously liable when their bouncer had stabbed the plaintiff outside the club. Since the employee was encouraged to maintain security through violence in the furtherance of the employer’s business. Despite the fact that the bouncer was overzealous in carrying out the master’s instruction and there was an element of malice and revenge.

In 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 where an employee was harassing the plaintiff.

In Poland v John Parr and sons Ltd, the court held that the employer was liable for the assault of the employee on the plaintiff whom he thought was stealing the goods of his employer. In Bernard v Attorney-General of Jamaica, the claimant went to a public phone booth with the intention to use a phone. A police officer requested for the phone on the authority of being a police officer. The claimant refused and an altercation ensued. The police pulled out his service revolver and shot the claimant. The court held the crown (government) liable noting that the employee (police officer) purported to act as a police officer of the government.

In Lloyd v Grace Smith and Co, the firm of solicitors was found vicariously liable for the fraud perpetrated by the managing clerk on the client. Immaterial that it was perpetrated for his own selfish interest.

In Nigeria, vicarious liability for criminal actions of employee have been construed on the basis of estoppel ostensible authority.

In UAC ltd v Saka Owoade, the principle of Lloyds case was applied. Vicarious liability was construed where the employees which the employer held out to be driver and errand boy absconded with customer’s goods. (i.e. if the Drivers of GUO or Ifesinachi motors steal your luggage. You should be able to claim from the company) Same conclusion reached in Dola v John, where the employee held out to be the employer’s journeyman absconded with the plaintiff’s jewelleries and gold ornaments. Employers should employ men of diligence and integrity.

The courts have often distinguished between close connection and mere opportunity.

In Jacobi v Griffiths, the employee took advantage of his position as trip guide to sexually abuse two youths during a camping trip. The court held that this was a mere opportunity. The dissenting view saw that a relationship of trust was created where the employee was put in a relationship of trust with the vulnerable campers.

This decision has also been criticised for failing to fulfil the policy objectives which vicarious liability seeks.

Note however that acts of passion, vengeance and malevolence may excuse the employer from being held vicariously liable for the act of his employee.

In Irvin V Post Office, the court held that the employers were not liable where their postman wrote racially offensive messages on the back of an envelope addressed to the plaintiff. In Deatons v Flew, the court held that the barmaid was personally liable where she assaulted a customer who did not provoke her. In AG British Virgin Island v Hartwell, a policeman had abandoned his duty post to a bar. Found his lover with another person. He shot his lover and her companion with his police revolver out of jealous rage. The employers were not liable for the act, but they were liable for negligently entrusting a dangerous weapon to an unreliable person. In Warren v Henley's Ltd the employers (managers of a petrol station) were held NOT to be liable where the employee punched a customer on the nose during a row. In N v Merseyside Police, the claimant came out of a nightclub drunk. A police offered to take her home in the police vehicle. Instead he took her to his house and raped her. He pleaded guilty. The employers were however not liable because the court wasa of the opinoni that such act was not incidental to his job.

From the above discussion it is clear that the close connection test is a policy driven formulation and would be applied based on the facts and merits of each case. The employers are thus made to exercise due care in their employment and selection process. The long and short is that it is all a question of policy.

In Nigeria, there has been scarce judicial activism in this area .
LIABILITY FOR ACTS OF INDEPENDENT CONTRACTOR.

An independent contractor is a person employed under a contract for services. Meaning that the employer can tell him what to do but cannot control how he does the work. Generally, an employer is liable for the acts of the servant, but not that of the independent contractor.

A servant is a person employed under a contract of service where the master can control what is to be done and how it can be done while an independent contractor uses his discretion.

However, direct liability rather than vicarious liability can arise where the employer has given the independent contractor a non-delegable duty. A non-delegable duty is that which is so important that it cannot be escaped notwithstanding delegation. E.g negligence. In Cassidy v Minister of Health and the case of Roe v Minister of Health (unlike the earlier position of Hillyer v Governord of St. Bartholomew Hospital) the court held that this duty is NOT restricted to administrative and ministerial functions. The employer can be liable for the tort of his independent contractor in the following instances.

1. 
   Where the employer has expressly authorised the independent contractor to commit a tort. For example if a passenger of a taxi²⁰ orders the driver to speed and a collision ensues. Or if x employs y to build a wall on the road, he can be liable in public nuisance. Or where a master employs an independent contractor to beat up another so as to teach him a lesson. The remaining instances that shall be mentioned involve where the employee gives the independent contractor a “non-delegable duty”. Where he does, he would still be liable. They include:
   
2. 
   The duty to take care (Negligence): the employer can be liable. Except it is not connected to the job. Padbury v Holiday and Greenwood ltd where negligently placing his working tool on a window sill which fell on the claimant amounted to liability. The employers were held liable in the following cases;. Cassidy v Minister of Health. Barnett v Chelsea and Kensington HMC. Latimer v AEC ltd.
   

3. 
   Absolute duties imposed by statute.
   
4. 
   Strict liability duties arising under the rule in Rylands v Fletcher. Except the independent contractor was very careless.
   
5. 
   The duty of an employer regarding safety of an employee.
   

DEFAMATION.

Freedom of expression and speech is one of the most cherished and guaranteed rights of man as a political being in a democratic society. However, the law strikes a balance between the freedom to express oneself and a duty not to harm another person’s reputation. See Nthenda v Alade.

Professor Winfield in his treatise stated that defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of the society, or which tends to make people shun or avoid him. Also Okolie v Marinho.

The defence of justification, vulgar abuse, qualified and fair privilege, and so on can avail the defendant.

The court in Newbreed v Erhomosele, noted that there is no need to prove malice because the law looks at the effect of the statement rather than the subjective motive of the defendant.

Defamation is classified into libel and slander.

Libel is defamation in a permanent form (for example publication in writing) while slander is defamation in a transient form (for example gestures oral speech). The rationale being that unlike Libel, slander is not actionable per se (the plaintiff must prove damage)-Onojioghofia v Okitipai²¹.

From the interpretation of Section 1, Slander of Women Act, the Defamation Act, Section 2 and 4, Defamation Law of Lagos Slander can be actionable per se²² in the following cases which show prima facie damage; where there is imputation of:

• 
  Crime: Punishable with imprisonment in the first instance. In Agoaka v Ejiofor, the defendant falsely accused the plaintiff of stealing his cocoyam. Held, following Ractcliffe v Evans that the plaintiff was entitled to recover damages from the slander.
  
• 
  Contagious and venereal diseases: the allegation should be such a disease that would make others shun and avoid the plaintiff-Murray v Williams²³
  
• 
  Unchastity /adultery: Section 1, Slander of Women Act and Section 4, Defamation Law of Lagos State Have made such imputation actionable per se. In Farashi v Yakubu, allegation that the plaintiff committed adultery made the slander actionable per se.
  
• 
  Unfitness for professional/business calling which injures the plaintiff in his office or profession. In Jones v Jones, allegation of adultery on a school master. Although the court held that this was immaterial to his profession or calling.
  

A statement on literal interpretation may not sound defamatory but those with special knowledge of whom or what it refers to would understand the insult or read the defamatory meaning- this is referred to as an INNUENDO. In Eyo v Eastern Nigeria Information Service. The court dealt with the nature of an innuendo. Noting that an innuendo may be;

• 
  True/legal: The plaintiff should prove that an audience with special knowledge of facts would be able to read a defamatory meaning into the statement.
  
• 
  False/popular: The plaintiff must show that an ordinary member (not necessarily with special knowledge) of the community would construe a defamatory meaning into the statement.
  

In Johnson v Daily Times, the defendants stated; “who got the stadium contract?” … Modupe Johnson and Co ltd”. The CEO of this ltd happened to be a former minister in charge of the stadium. The court held that the plaintiff must establish that persons knowing of the words would take it in a defamatory sense.

In Akintola v Anyiam, “son of Chief Sawe of Ilesha and Alice” was an innuendo referring to the plaintiff who was a native of Ogbomosho. The court held that this statement would make people think that he had been lying of his origin.

To succeed in a claim for defamation, the Plaintiff must establish that:

1. 
   The defendant made a defamatory statement.
   
2. 
   The statement referred to the plaintiff.
   
3. 
   The statement was published. (To at least one person other than the plaintiff).
   

1. 
   A defamatory statement made:
   

2. 
   That the defamatory words referred to the plaintiff
   

In Service Press v Azikiwe, the court held that “Ben Azikiwe” did not refer to the plaintiff Nnamdi Azikiwe. In Bakare v Oluwide, it was held that a cartoon displaying the exploitation of dock workers referred to the plaintiff because it resembled him and he was a general stevedoring contractor and a traditional ruler. In Ukpoma v Daily times of Nigeria Ltd, the court held that the statement “a retired assistant director of works in Lagos had been arrested for corruption” referred to the plaintiff who is a retired assistant director of works.

At common-law, unintentional defamation was no defence. In Hulton v Jones, damages was awarded to the plaintiff whose name “Artemus Jones” was used in a fiction without intention to defame him. In Newstead v London Express Newspaper, the defendants published an accurate report of the bigamy trial of Harold Newstead of Camberwell. The plaintiff with the same name succeeded in a suit for defamation.

This hardship has been remedied by Statute under Section 4 of the Defamation Act 1952 and Section 6 defamation Law of Lagos 1961 the defence can avail the defendant however, he must apologise through an offer of amends which simply seeks to make corrections to the publication and notify people that have copies of the error.

The plaintiff may accept or reject this offer of amends but where he refuses it, it may stand against him in evidence which could mitigate damages-see Section 6(3) Defamation law of Lagos.

3. 
   The Defamatory Words must have been Published:
   

There is no publication where the person addressed does not understand or where an unforeseen third party eavesdrops or interferes with the communication. In Huth v Huth no publication where the claimant’s butler secretly opened the confidential letter. However, In Theaker v Richardson, there was publication where the husband opened a defamatory letter addressed to his wife because it was foreseeable that the husband may come across it.

There could be publication where a clerk opens a letter addressed to his/boss. Except the letter is marked; “private” or “personal” Pullman v Walterhill.

Every repetition of a defamatory statement is a fresh publication-Awoniyi v AMORC. Thus the editor, publisher, printer, and so on can be liable for defamation. No defence to say he is just repeating-Okotieboh v Amalgamated Press Ltd.

Remember that there is privileged communication between spouses as such there is no publication except a third party is introduced to the dissemination.

We move on to the issue of Innocent dissemination. This occurs where the defendant involved in the dissemination of a defamatory article pleads that he did not know that the material contained a defamatory/libellous matter. The defendant must show that:

• 
  He is not the author, printer or publisher of the defamatory article.
  
• 
  At the time of disseminating the material, he did not know (in all honesty) that it contains a libellous matter.
  
• 
  His ignorance of the libellous matter in the material must not be as a result of his negligence or carelessness.
  

Generally, there is no defamation of a class of people because a person is not pin-pointed-Awoniyi v Registered Trustees of AMORC. Except the class of people are so distinct that they could come within the description. In Dalumo v Sketch Publishing, the court held that alleging that top officials of the Nigerian Airways were corrupt referred to the plaintiff who came within it. In Jason Donovan v The Face Magazine, a singer successfully sued the Face Magazine for saying he was gay (this is a 1998 case). In Cruise v Express Newspapers, Tom Cruise and his wife Ms Kidman were awarded damages where Express Newspapers had reported that their marriage was a sham designed to cover up the fact that they were both gay.

Unintentional defamation. (Discussed above).

Innocent dissemination. (Discussed above).