VICARIOUS LIABILITY
Explain the concept of vicarious liability.
• Introduction
Generally, individuals are held accountable for any misdeeds they may have committed. However, there are certain circumstances in which a person may be held accountable for a wrongful act committed by another person.
The term “Vicarious” is derived from the phrase “Delegated”, which implies that a person is responsible for the actions of another person. For example, an employer may be held liable for the damage caused by the actions or omissions of an individual who is performing work for them. For the purpose of this article, the law distinguishes between those who work for others and those who do not.
Old View
According to old doctrine the liability for torts committed by another is based mainly on the following two maxims: –
1. Qui Facit Par Alium Facit per se – This means that “a person who does an act through another is deemed in law to do it himself”. A master is liable for the torts of his servants on the basis of this doctrine. A person who gets his work done through another is liable for all the consequence from that act.
2. Respondent Superior – This maxim means that the superior must be liable. The master is liable for all such acts of his servants which he does in the course of his employment, as the master is capable of meeting the liability.
The Modern view
However, none of the above-mentioned principles covers all aspects of the concept of ‘vicarious liability’. Jurists and courts therefore developed a new legal basis for the ‘master’s’ liability for the ‘torts’ committed by his ‘servants’. This new legal basis is appropriate and responds to the challenges of a modern, evolving society.
The new view is that the doctrine of ‘victim’ liability is essentially based on the social security principle: ‘I am liable for the wrongful actions of my servant’ or ‘agent’ because he carries out my act, and it is my responsibility to see to it that he carries out his act with the safety of others in mind.’.
In this respect, the view expressed by Lord Pears in the case of Imperial Chemical Industries Ltd. v. Shatwells is worth quoting as it explains the modem Concept of vicarious liability very clearly. He said: “The doctrine of vicarious liability has originated not from an express reason rule of law but from the general rule of social convenience and justice. When his master employs his servant (impliedly for his own benefit) and is capable of meeting the loss a suffered by a person from the acts of his servants, then he is liable against the whole of the world for the torts committed by his servants.”
Thus, the vicarious liability arises in the following cases; 1. Liability by ratification. 2. Liability arising out of special relationship.
• Principal and Agent – If a person consents to another person committing a tort, the person who consented to the act will be held liable not only for the act but also for the act of the person who authorized it. The principle of qui facit contra alium facit (qui facit per se) is derived from the general principle that “the action of the agent is the action of the principal”.
If an act is committed by an agent and authorized by the principal, the principal and the agent are jointly and severally liable.. For the purpose of vicarious liability, even a friend, driving my car for me, may be my agent.
In Ormrod v. Crosville Motor Service Ltd. the owner of a car asked his friend to drive his car. While the car was being so driven by the friend, it collided with a bus. The owner of the car was held liable. Lord Denning observed: “The law puts an especial responsibility on the owner of a vehicle who allows it to go on road in charge of someone else, no matter whether it is his servant, his friend, or anyone else. It is being used wholly or partly on the owner’s purpose; the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern.”
In Tirlok Singh v. Kailash Bharti, while the owner of the motor cycle was outside the country, his younger brother took the motor cycle without his and caused the accident. It was held that the younger not be deemed to be the agent of the owner of the motor cycle and the latter could not be vicariously liable for the accident. knowledge or permission and brother could not be vicariously liable for the accident.
• Partners – The relationship as between partners s is that of principal and agent. The rules of the law of agency apply in case of their committed by any partner in the ordinary course of the business of the firm, all the other partners are liable therefor to the same extent as the guilty partner. well. their liability also. For the tort The liability of each partner 1s joint and several.
In Hamlyn v, Houston & Co., one of the two partners of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him make a breach of contract with his employer (plaintiff) by divulging secrets relating to his employer’s business. It was held that both the partners of the Bm were liable for this wrongful act (inducing breach of contract) committed by only one of them.
• Master and Servant – If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the master as it was defined in Baxi Amik Singh V. The Union of India “The doctrine of liability of the master for act of his servant is based on the maxim respondent superior, which means let the principal be liable’ and it puts the master in the same position as if he had done the act himself. It also derives validity from the maxim qui facit per alium facit per se, which means” he who does an act through another is deemed in law to do it himself.
For the liability of the master to arise, the following two essentials are to be present; 1. The tort was committed by the servant 2. The servant committed tort in the course of the employment.
• Parent-Child Relationship – There are some cases where a parent can take the blame for their kid’s bad behavior. For instance, if a kid gets into a car crash while they’re driving a family car, the parent in the car can be held liable for any damage that comes from it.
• Independent Contractor Relationship – An employer is generally not held accountable for the unlawful conduct of an independent contractor, as the independent contractor is not employed by the employer and is typically treated as a distinct business entity.
• Essentials to establish Vicarious Liability in Tort 1. Employer-Employee or Principal-Agent Relationship – As mentioned above, vicarious liability arises in certain relationships where a party is held liable for the tortious conduct of another party. Examples of such relationships include employer-employee, master-servant, and principal-agent. First, the relationship must be legal. This means that the employee(s) or agent(s) must be acting under a contract or arrangement with the employer(s) or principal.
2. Tortious Act Committed Within the Scope of Employment or Agency – The tortious conduct of the employee or representative must have occurred within the scope of the employment or agency. In other words, the conduct must have occurred while the employee or representative was in the course of his or her duties or in his or her capacity as an employer or principal. If the conduct occurred outside the scope of his or her employment or agency, then the employer or principal cannot be held liable.
3. Connection Between the Tortious Act and the Employment or Agency – The tortious conduct must relate to the employment or agency of the employee. This implies that the conduct must have been done in the interests of the employer’s or principal’s business or interests. For instance, an employee who is responsible for delivering goods for a company may be held liable if the employee causes an accident while operating a company vehicle. The employer is held liable if the accident occurs while the employee is carrying out work related to the employer’s business.
4. No Personal Motive on the Part of the Employee or Agent – The wrongful act of the employee or representative shall not have been committed for personal or extrinsic reasons. For instance, if the employee engages in a theft during the course of their employment but the theft is unrelated to the activities of the employer, the employer is not liable.
• Case Laws 1. Wrong done as a natural consequence of an act by Servant for Master with due care – In the event that the employee commits an act that is in accordance with the master’s instructions, the master shall be held responsible for any breach of discipline resulting from that act, regardless of whether or not the employee has taken all reasonable steps to complete his work.
In Gregory v. Piper (1829) 9 B & C 591, the defendant and plaintiff had some disputes between them and the defendant, therefore, ordered his servant to place rubbish across a pathway to prevent the plaintiff from proceeding on that way and the servant took all care to ensure that no part of it was touching the part of the plaintiff’s property but with the passage of some time. The rubbish slid down and touched the walls of the plaintiff and thus he sued for trespass. The defendant was held liable despite his servant taking all due care.
2. Wrong due to Negligence of Worker – A master can also be held responsible for a servant who doesn’t do their job properly or doesn’t do it at all.
In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P), deceased was travelling in a car driven by the manager of the respondent company and it met with an accident as a result of which he died. The dependents of the deceased filed a claim and the tribunal allowed damages but on appeal to the High Court, it was set aside on the grounds that the accident does not make the respondent company liable.
But the Supreme Court in its judgement overruled the judgement of the High Court and held that from the facts of the case it was clear that the accident had occurred due to the negligence of the manager who was driving the vehicle in the course of his employment and therefore, the respondent company was liable for his negligent act.
Illustration: If H works as a house cleaner for K, then there is a master and servant relationship between them but, if H instead of cleaning the house decides to cook food even though he has only been hired for cleaning the house and due to his negligence causes a fire which also causes loss to K’s neighbour L, then K, will not be liable because H did an act which was outside the course of his employment.
3. Wrong by excess or mistaken execution of a lawful authority
• The servant had intended to do an act on behalf of his master, which he was authorized to do.
• The act would have been lawful if it was done in those circumstances which the servant mistakenly believed were true or if the act would have been lawful if done properly.
In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter of a railway company while working mistakenly believed that the plaintiff was in the wrong carriage even though he was in the right one. The porter thus pulled the plaintiff as a result of which the plaintiff sustained injuries. Here, the Court held the railway company vicariously liable for the act of the porter because it was done in the course of his employment and this act would have been proper if the plaintiff was indeed in the wrong carriage.
In Anita Bhandari & Ors. v. Union of India, The husband of the petitioner went to a bank and while entering inside it, the cash box of the bank was also being carried inside and as a result, the security guard in a haste shot him and caused his death. The petitioner had claimed that the bank was vicariously liable in the case because the security guard had done such act in the course of employment but the bank had contended that it had not authorized the guard to shoot.
The Court held the bank liable as the act of giving him gun amounted to authorize him to shoot when he deemed it necessary and while the guard had acted overzealously in his duties but it was still done in the course of employment.
4. Wrong committed willfully by a servant with the intention of serving the purpose of the master – If a servant does any act willfully, recklessly or improperly then the master will be held liable for any wrong arising out of such act, if such an act is done in the course of employment.
In Limpus v. London General Omnibus Co. (1862) EngR 839, the driver of the defendant company, willfully and against the express orders not to get involved in racing or to obstruct other omnibuses, had driven to obstruct the omnibus of the plaintiff. In the case, the Court held that the defendant company was liable for the act of driver because the driver’s act of driving the omnibus was within the scope of the course of employment.
In Peterson v. Royal Oak Hotel Ltd. (1948) N.Z.I.R. 136, The plaintiff was a customer who on being intoxicated was refused further drinks by the barman, who was employed under the respondent and thus the plaintiff threw a glass at him. The barman took a piece of the glass and threw it at him which hit his eye. The respondent hotel was held liable due to the act of the barman who had a master-servant relation with them.
5. Wrong by Servant’s Fraudulent Act – In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff was a widow who owned 1000 pounds as dues on a mortgage and a cottage. She went to the manager of the defendant, which was a firm of solicitors, and she asked for his advice to get richer. The manager told her to sell her cottage and to call up the amount of mortgage. She authorized the manager to sell the property and to collect her money but he absconded with the money.
Thus, she sued the defendant company. It was held that the defendant was liable for the fraudulent act of the manager because even a fraudulent act is not authorized, the manager was authorized to take her signature and thus it was within the course of employment. Illustration: If A goes to a bank and deposits a check with C, an employee of the bank and C fraudulently transfers that amount to his wife’s account. Here for the fraudulent act of C, the bank will be liable.
