Vicarious Liability

 

CLAT Study Material: Vicarious Liability

Vicarious Liability

Law of Torts for CLAT and other law entrance exams

Vicarious means acting on another’s behalf.

Vicarious liability refers to a situation, where someone is held responsible for the actions or omissions of another person. In the Law of Torts, it is considered to be an exception to the general rule that a person is liable for his own acts only.

It is based on the principle of “qui facit per se per alium facit per se”, which means, “He who does an act through another is deemed in law to do it himself”. 

Following are the situations, where a person can be held responsible for the action of another:

(1) Liability of the principal for the tort of his agent. 

(2) Liability of partners of each other’s tort. 

(3) Liability of the master for the tort of his servant. 

(4) Liability of the state or Liability of the administration.

Liability of the principal for the tort of his agent

When an agent does any tortious act against another person within the authority of his principal then, the principal will be vicariously liable for the tortious act of the agent. But the agent must do the act within the course of employment of his principal.

Liability of partners of each other’s tort

The relationship between partners is like principal and agent. Here in the case of a partnership, the rule of agency applies. When one of the partners does any tortious act against a person, all the partners will be vicariously liable for the tortious act of another partner. 

Liability of the master for the tort of his servant

The Master and Servant relationship is like principal and agent. In the case of a servant, the master will be vicariously liable for the tortious act of his servant. 

Test of vicarious liability in case of master and servant, or principal and agent relationship:

Liability of the principal-agent and master-servant

1. Hire and Fire

2. What to do and How to do?

3. Course of employment

The above tests regulate that Master or principal have controlling power upon their Servant and Agent. If Master or Principal doesn’t have controlling power upon his servant and agent, then in such a case Master and Principal will not be vicariously liable for the wrong of his Servant and Agent.

When the Agent or Servant did any tortious act “outside the course of employment” of his principal and servant, thus the Master or Principal will not be vicariously held liable for the tortious act committed by his Servant or Agent. 

Master-Servant, Principal-Agent relationship comes into existence when Master has the authority to direct the Servant, How to do, what to do, and the Hire and Fire Authority. 

In the case of Master-Servant or Principal-Agent, the liability is jointly and severally that a suit can be filed against either of them or both of them.

Principle on which the vicarious liability is based 

The doctrine of vicarious liability is based on the following principles 

1. Qui facit per alium facit per se

The maxim means, "he who acts through another is deemed in law as doing it himself". The master's responsibility for the servant's act had also its origin in this principle. 

2. Respondeat superior

Another maxim usually referred to in this connection is respondeat superior, i.e. the superior must be responsible, or let the 'principal be liable'. In such cases, not only he who obeys but also he who commands become equally liable.

This rule has its origin in the legal presumption that all acts done by the servant in and about his master's express or implied authority, are in truth the act of the master.

The master is answerable for every such wrong of the servant as committed in the course of his service, though no express command or privity is proved. 

Similarly, a principal and an agent are jointly and severally liable as joint wrong-doers for any tort authorised by the former and committed by the latter. 

3. Modern Views

In recent times it is believed that the underlying idea of this doctrine is that of "expediency and public policy". Salmond has remarked in this connection that "there is one idea which is found in the judgments from the time of Sir John Holt to that of Lord Goddard, namely, public policy." 

The modern view has been also approved in Imperial Chemical Industries, Ltd. v. Shatwell, in which Lord Pearce observed:

"The doctrine of vicarious liability has not grown from any proper, clear, logical, or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servants, and being better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all torts committed by his servant within the scope of it." 

Case of Trilok Singh v. Kailash Bharti

In this case, the owner of the motorcycle was outside the country, his younger brother took the motorcycle without his knowledge or permission causing the accident. It was held that the younger brother could not be deemed to be the agent of the owner of the motorcycle and the latter could not be vicariously liable for the accident.

Difference between Servant and Independent Contractor

A servant is a person employed by another to do work under the direction and control of a Master while an Independent Contractor is his own master and exercises his own discretion.

Example of a servant

K’s car driver negligently hit ‘X’ then ‘K’ will be liable because his car driver was working under his direction. 

Master is liable for the tort of the servant while Master is not liable for the tort committed by the independent contractor.

Example of Independent Contractor

‘K’ booked a taxi to reach the railway station. Taxi driver negligently Hit ‘X’. ‘K’ will not be liable because the driver is not K’s servant but an Independent Contractor. 

Case Law Examples

Lloyd v. Grace Smith and Company

In this case, a lady (plaintiff) sells her property to a company, the lady just left to sign a few documents. Thereafter the company sent his agent to get the sign of the plaintiff (lady) on property documents. The agent fraudulently made a gift deed of the plaintiff’s property and took a sign on that gift deed. Then the lady filed a suit against the company. 

Here, the company was vicariously held liable for the wrongful act of their Agent.

Omrod v. Crosville Motor Service Limited

In this case, one driver (defendant), is a driver of a company, and the company driver driving the car meanwhile he told his friend to sit alongside him to drive the car because he was so tired. Then his friend had an accident, then the victim filed a suit against the company. The Court held that the company will be vicariously held liable for the tortious act of their servant.

Hamlyn v. Houston and Company

One of the partners of the firm gave a bribe to a government servant for the partnership firm’s work. Giving the bribe is illegal and the entire partners were held liable for this wrongful act because they are acting under a partnership firm.

Conclusion

The concept of vicarious liability is very complex, as it is born to protect the right of the victim to gain sufficient compensation and to try to protect the employer from being overburdened by their employees.

Although it goes against the principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability seems appropriate as it does serve a useful purpose.

It contributes to the maintenance of safety standards and it enables the victims of negligence by employees to be reasonably certain that someone will be in a position to pay them compensation.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach her at Instagram @sakshiydv1108