I'm only doing my job." He then picked up heavy glass paperweight from the desk and threw it at Mrs Simpson, hitting her in the face which resulted in serious injury. Tom tried to justify his behavior by claiming that his line manager, Sarah Harper, has been constantly criticizing his performance, customer care approach and time keeping. Later, at an official party, where he was rebuked and laughed at for his conduct with the customer, he picked up fight and injured one of his co-employee.
In the facts and circumstances given above, two incidents of causing injury are directly attributable to the employee. Thus, the issue presented for consideration is as to who would be held liable for compensation to the victims for the tortuous and wrongful act of Tom Barnes.
Apart from the criminal liability of Tom Barns for which a separate action would lie either by the employer or by the customer, in all probabilities, the relief of monetary compensation or punitive damages can be sought by the customer by primarily suing the employer as defendant as the employer is liable under tort for the acts committed by his employee. The liability of the employer for the tort or wrongful commission of an act by an employee emanates from the well known maxim "Respondent Superior", which means, Superior is responsible or let the principal be liable. This liability derives its validity from the fact that he who does an act through another is deemed in law to do it himself. This is also known as vicarious liability of the employer.
As stated above, Vicarious liability is an old principle of employment law whereby the employer is held to be responsible for the acts of its employees when they are acting within the course and scope of their employment. The vicarious liability of the employer can be traced to the definition of employer-employee relationship propounded by the U.S.Supreme Court in the case of United States v. Silk (1) 91 L.Ed. 1757: 331 U.S. 304 (319), per Reed, J. wherein it was agreed that the test was whether the men were employees " as a matter of economic reality". The important factors were said to be "the degrees of control, opportunity of profit or loss, investment in facilities, permanency of relations and skill required in the claimed independent operation." The indicia of employer-employee relationship is further elaborated in the "Re-statement of the Law" (2) as follows:
(a) The extent of control which, by agreement, the master may exercise over the details of the work;
(b) Whether or not the one employed is engaged in a distinct occupation or business;
(c) The kind of occupation with reference to whether, in the locality the work is usually done under the directions of the employer or by a specialist without supervision.
(d) The skill required in the particular occupation;
(e) Whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;
(f) The length of time for which the person is employed;
(g) The method of payment, whether by the time or by the job;
(h) Whether or not the work is a part of regular business of the employer; and
(i) Whether or not the parties believe they are creating the relationship of master and servant.
It would follow from the above that since the employee is in total control and supervision