Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


KEY TAKEAWAYS

Vicarious liability refers to a person's "liability for the tort committed by another" and occurs in cases of master-servant, principal-agent, among partners, employer-independent contractor.

The doctrine of vicarious liability is based on the principle of Qui facit per alium facit per se and Respondeat superior.

Under vicarious liability, the aggrieved can sue the real wrongdoer, or the employer, or both. 

INTRODUCTION

The general norm is that a person is responsible for his own wrongdoings, and no one else could be held responsible for his or her actions but this is not the rule in all cases and in some circumstances, one person could be held liable for the actions of another as well, which is when the concept of vicarious liability arises.Vicarious Liability in simple terms refers to a situation where someone has been held responsible for the actions or omissions of some other person.The doctrine of vicarious liability is based upon two maxims -Respondeat superior which means the principal is liable and Qui facit per alium facit per se which means that he who does an act through another does it himself. Further, this kind of a liability is considered to be a saving clause for the inferior who acts on behalf of their superior's order, which consequently leads to a tortious act. This article with the use of landmark case laws would provide a clear picture of the various types of vicarious liability that exist.

VICARIOUS LIABILITY

Before delving into the concept of vicarious liability, it's vital to remember that this one of the types of tortious liability, and it literally means "liability of a person for the tort committed by another." To further comprehend, consider the following scenario: X is an employee of Y, and while doing his work, a third party is injured as a result of his negligence. Here, because X was under the employment of Y, this case falls under the idea of vicarious liability and Y would be held liable for X's act for two reasons: first, it was done in the course of employment, and secondly, Y had permitted him to do so.

The important thing to note here is that vicarious liability does not occur in all cases. For instance, in this given example itself, just because X committed something wrong does not automatically render Y liable. Only when there is a particular relationship between two people does the concept of vicarious liability come into play. So, in this example, if X and Y are in a relationship that is protected by vicarious liability, Y could be held accountable. 

After seeing the above example, it is clear that vicarious liability cannot occur in any case and that certain conditions must be met in order for it to fall into this category. The following are the essentials that are required to be present in the case of vicarious liability: 

a)    There must be a relationship of a certain kind.

b)    The wrongful act must be linked to the relationship present.

c)    It should have occurred during the course of employment.

KINDS OF VICARIOUS LIABILITY

When we look at what creates vicarious liability, we see that the aspect of relationship is heavily emphasized. This relationship can be better understood by looking at the different types of vicarious liability that can occur. The vicarious liability is generally used in four cases: principal-agent, master-servant, employer-independent contractor, and among the partners, and would be explained in detail below with the help of cases.

Principal and Agent 

A person employed to perform any act for another or to represent another to a third party is known as an agent, whereas the person for whom the act is performed or who is represented is known as the principal. Further, the agent establishes a relationship between the principal and the third party. Therefore, the principal is bound by the agent's act as if he did it himself, due to a contractual obligation being present.  So, if an agent does a wrongful act during employment for the principal, the principal will be held accountable for the act. It should be noted that the aggrieved party may sue either or both of them and that if the aggrieved party decides to sue the agent and obtain damages, any action against the principal would be barred. Apart from this, it is also seen that if the agent performs some activity in the principal's absence that benefits the principal, he will be held liable because the agent acted for the principal.

In the case ofState Bank of India vs Shyama Devi (1978), Shyama Devi's husband gave money to a friend who worked at the State Bank of India to be put in Shyama Devi's account. It was observed that the respondents did not obtain a formal receipt for the deposits, which shows that the employee misappropriated the money. Therefore, the Supreme Court held that the employee was not operating in the course of his employment with the bank when he committed the fraud, but rather in his personal position as the depositor's friend, and thus the bank could not be held liable.

Further, in the case of Trilok Singh vs. Kailash (1986), the owner of the motorcycle was outside the country and without his knowledge or permission, his younger brother rode the motorcycle and caused an accident. The court held that the younger brother could not be held vicariously accountable for the accident since he was not deemed to be the agent of the motorcycle's owner.

Master and Servant 

The master-servant relationship is similar to the relationship between a principal and an agent but the only difference to be noted is that a servant is not the same as an agent, and the two terms should not be used interchangeably. A servant is a person engaged by another to perform work under his master's direction and supervision. Apart from this, just as the principal is held liable for the agent's wrongdoings, the master is held liable for the servant's wrongdoings.  Furthermore, just as we saw with principal-agent, a master is liable not just for the acts performed by the servant, but even for acts are done by him which are not specifically ordered to do but yet have been done during employment. 

The master is liable for a number of torts committed by the servant, including fraud, theft, mistake, negligence, and wrongful delegation of duties. Just as the master is vicariously liable for the conduct of the servant because of their relationship, there are also acts for which the master is not liable despite being in the master-servant relationship. To understand this better a few instances have been explained below:

a)    If there is a loss or harm that occurs without the master's fault or knowledge.

In the case ofBeard vs London General Omnibus Co. (1900),the driver of a bus had gone to have dinner, leaving the bus in the custody of the conductor, who chose to turn the bus to keep it ready for the return. And while doing so, he inadvertently knocked down a bystander. It was held in this case that the master was not liable because the conductor acted beyond the scope of his employment. 

b)    The servant violates an express restriction by acting outside the scope of his or her employment

It is clear by now that the master is liable for acts done by the servant during his employment. But it is worth noting here that, when a servant does an authorized act in an unauthorized manner the master would be made liable primarily because it is done during the course of employment. This exception of not being liable is only when the employee is prohibited from doing something and is outside the course of employment. The relevant case to cite here is the caseLimpus vs. London General Omnibus (1862), where the owner of a bus was given express instructions to not overtake or race but the bus driver disobeying the instructions overtook another bus which resulted in an accident. Therefore, the bus owner was held liable for the negligence of the driver here as the driver’s negligence took place during the course of employment. 

c)    If the servant is temporarily lent to another person and the temporary master exercises control and supervision over the servant, the master may not be accountable for the servant's actions.

This point would be understood better referring to the case of Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd. (1947), in which the Harbour Board possessed a number of mobile cranes, each driven by a skilled driver employed by them. For loading a ship, some stevedores hired a crane with a driver. Later on, A was harmed as a result of the driver's recklessness. On this incident, the House of Lords observed that although the driver was under the immediate control of the stevedores at the time of the accident, it held the Harbour Board, the driver's general and permanent employer, was liable to A and the stevedores were not because the stevedores had no power to direct the driver how to operate the crane.

Employer and Independent contractor

Generally, the employer is not liable for the torts committed by an independent contractor employed by him. However, this rule has some noted exceptions where an employer can be made liable for the wrongs of the independent contractor. 

a)    If the employer authorizes the doing of an illegal act. 

b)    The employer’s liability arises for the dangers caused on or near the highway. 

c)    An employer is liable for the act of an independent contractor in cases of strict liability. 

In the case of Tarry vs. Ashton (1876), an independent contractor installed a lamp on the outside of a person's residence. The lamp, which had been installed, was hanging andinjured a passerby. The individual who had the lamp fixed was found to be accountable since he had a responsibility to ensure that the job was done correctly.

Partners

The wrongs committed by one partner will make the other partner accountable in the same way as the principal is held liable for the wrongful act of his agent. In other words, if one partner of the firm does a wrongful act, all other partners will be held liable to the same amount as the guilty partner. The case to cite here is Hamlyn vs. Houston (1903),where it was found that one of the partnership firm’s partners had bribed the plaintiff's clerk to provide him with confidential information about the plaintiff's business. The court here held that both the partners of the firm would be held liable for inciting a breach of contract, which is a wrongful act, even if it was one of them who had committed the act.

VICARIOUS LIABILITY OF STATE

Looking at the law in England, earlier the Crown could not be sued in tort for wrongs that it had actually authorized or that its workers had committed while in employment. But, the Crown, is now liable for the torts committed by its servants, just like a private individual, according to the Crown Proceeding Act, 1947. 

In comparison in India, we see that there is no formal framework governing the state's liability. However, the Union of India and the states can sue and be sued under Article 300 of the Indian Constitution although it is unclear under what circumstances this can be done, and is up to the courts to decide each case based on the facts. Furthermore, it appears that courts hold the state liable for torts committed by its servants only when they are performing non-sovereign functions, based on several High Court and Supreme Court decisions. The state cannot be held liable for a tort committed by its servants while performing sovereign functions. Thus, there are two landmark cases to note here:

In the case of State of Rajasthan v. Vidyawati (1962), the driver of a jeep owned and maintained by the State of Rajasthan for the official use of the Collector of the district drove it rashly and negligently while returning it from the workshop to the Collector's residence after repairs, knocking down a pedestrian and fatally injuring him. Thereafter, the State was sued for damages. The Supreme Court held that the State was vicariously liable for damages caused by the driver's negligence. Further, through this case, an additional condition was added that needs to be looked upon in State immunity of sovereign and non-sovereign functions as it was decided that immunity for State action may only be claimed if the act was carried out in the exercise of sovereign functions. Thereafter, there was the case of Kasturi Lal v. State of U.P (1965), in which the Government was not held liable for a tort committed by a government official since the tort was said to have been done in the course of his sovereign function. In addition to criticizing the judgment made in the case of Vidyawati, the Court observed that the state is not liable when the tort is committed by its servants while acting under sovereign function and had made a clear distinction between sovereign and non-sovereign functions. 

CONCLUSION

To summarize, tortious liability arises from a breach of a legal obligation, and one type of it is vicarious liability, which allows one person to be held liable for the torts committed by another if they have a master-servant, principal-agent, partners of a firm, or employer-independent contractor relationship. Apart from the conditions that make a person vicariously liable, there are a few exceptions where the master or principal is not liable for their employee's actions. The Court uses its discretionary power to determine the relationship and whether vicarious liability can be applied or not is decided on the facts of the case. Additionally, how the state could be held vicariously liable for the servant's act has also been made clear citing the landmark cases.


 


"Loved reading this piece by Ruchitha Bafna ?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - Ruchitha Bafna  



Comments





update
Post a Suggestion for LCI Team
Post a Legal Query