Why the supreme court of Ghana erred on the proper application of the doctrine of vicarious liability in its recent decision in Kwadwo Appiah v. Kwabena Anane

Abstract

The Common law has evolved in leaps and bounds since the Normans Conquest of 1066. Certain areas of private law including the tort of negligence have developed into settled doctrines well known and generally followed in many common law jurisdictions. Vicarious liability is one of such well-developed doctrines with clear prerequisites for its deployment. The Supreme Court of Ghana is also required to follow the doctrine of vicarious liability unless there is a clear reason for a departure. The apex Court is mandated to justify any departure from its previous decisions with sound judicial analysis of the precedents vis-à-vis the case under consideration. In the case under review, the Supreme Court obviously ignored the established rules for the application of the doctrine of vicarious liability. The Court equally failed to justify the need for such a monumental departure from the tenets of the doctrine. The Supreme Court of Ghana invoked the doctrine of vicarious liability when the most basic of requirements for its applicability- such as the existence of an employment relationship or its analogous relationship between the tortfeasor and the Defendant-had not been established on the facts before the Court. The burden of this paper is to demonstrate that the Court erred when it failed to follow well-established principles for holding the defendant vicariously liable for a tort or breach of statutory duty by the tortfeasor. The paper expresses grave concern that unless the Supreme Court’s decision is departed from by the Court there is going to be a monumental confusion in Ghana’s Legal System as all other courts are bound to follow decisions of the Supreme Court.