Elements of an employer’s liability for a servant’s wrong
The general principle of law in cases of this nature is that a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment, and it is deemed to be so done if it is either a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master: see Ansah v. Boye2. In order to succeed in this action, and for the purpose of this appeal, the plaintiff must prove (a) that the defendant was the servant of the appellant, (b) that that relationship of master and servant subsisted at the time of the accident and (c) that the defendant was at that time acting in the course of his employment as the servant of the appellant.
Servant on his own business outside the course of employment
To render the master liable, however, for the servant’s misconduct, it is not enough that the misconduct should have occurred in the course of doing an act of a kind which the servant was usually authorised to do, unless at the time the servant was engaged on the master’s business and not merely on his own: see Clerk & Lindsell on Torts (11th ed.) at p. 131.
To constitute that relationship of master and servant for this purpose there is no necessity for any consideration of service. The test whether a person stands to another in the relation of master to servant is whether he had the power of controlling his acts and dismissing him for disobedience of orders. The person responsible as master is the person who has the right at the moment to control the doing of the act: See Clerk & Lindsell on Torts (11th ed.) at pp. 118 and 119.
