Vicarious liability is the liability in which a person is liable for the wrongful act of another person. As a general rule, a man is liable only for his own act but there are certain circumstances in which a person is liable for the wrong committed by others. This is called ‘vicarious liability”, i.e. liability incurred for another. The most common instance is the liability of the master for the wrong committed by his servants. In these cases liability is joint as well as several. The plaintiff can sue the actual wrong-doer himself, be he a servant or agent, as well as his principal. In the words of Salmond, “In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of another, however, blameless himself.”
Principles on which vicarious liability is based :
The doctrine of vicarious liability is based on principles which can be summed up in the following two maxims :
(a) 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. The reasoning is that a person who puts another in his place to do a
class of acts in his absence, necessarily leaves to determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the manner in which it is done; consequently he is answerable for the wrong of the person so entrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done: provided what is done is not done from any caprice of the servant but in the course of the employment.
(b) Respondeat superior: This maxim means that, the superior must be responsible or let the principal be liable. In such cases not only he who obeys but also he who command becomes equally liable. This rule has its origin in the legal presumption that all acts done by the servant in and about his master’s business are done by his master’s express or implied authority and are, in truth, the act of the master: The master is answerable for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorised by the former and committed by the latter.
Also Read Difference between Tort and Crime
Also Read Question:- “A suit for Tort cannot be brought against Acts of State”. Examine the statement.
Modern View:
In recent times, however, the doctrine of vicarious liability is justified on the principle other than that embodied in the above-mentioned maxims. It is now believed that the underlying idea of this doctrine is that of expediency and public policy. Salmond has rightly
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.”
Modes of vicarious liability
The liability for other’s wrongful acts or omissions may arise in one of the following three ways:
(a) Liability by ratification: Where the defendant has authorised or ratified the particular wrongful act or omission.
(b) Liability arising out of special relationship: Where the defendant stands to the wrong-doer in a relation which makes the former answerable for wrongs committed by the other, though not specifically authorised. This is the most important form of liability.
Also Read Question:-Elaborate on the different kinds of persons who cannot be sued in tort.
Liability arising out of master and Servant
In order that the master may be held liable for the tort of his servant following conditions should be fulfilled:
(i) Tort is committed by the ‘servant’, and
(ii) The servant committed the tort while acting in the course of employment of his master.
The doctrine of liability of the master for act of his servant is based on the maxim respondeat 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
facil per se‘ which means ‘he who does an act through another is deemed in law to do it himself.’
Who is servant ?
Lord Thankerton has said in Short v. J.W. Henderson Ltd., that there must be contract of service between the master and servant has laid down the following four indicia :
(i) the master’s power of selection of his servant,
(ii) the payment of wages or other remuneration,
(iii) the master’s right to control the method of doing the work,
and
(iv) the master’s right of suspension or dismissal.
Thus, a servant may be defined as any person employed by another to do work for him on the terms that he is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. A servant is thus an agent who works under the supervision and direction of his employer, engaged to obey his employer’s order from time to time. Applying this test, a son is not a servant of his father in the eye of law.
Difference between Servant and Independent Contractor :
(1) A servant is an agent who works under the supervision and direction of his employer. An independent contractor is one who is his own master.
(2) A servant is a person employed to obey his master’s directions from time to time. An independent contractor is a person engaged to do certain works, but to exercise his own discretion as to the mode and time of doing it.
(3) A servant is bound by the orders of his master but an independent contractor is bound by the terms of his contract.
Course of employment:
A servant is said to be acting in the course of employment if :
(1) the wrongful act has been authorised by the master; or
(2) the mode in which the authorised act has been done is wrongful or unauthorised. It is the general rule that master will be liable not merely for what he has authorised his servant to do but also for the way in which he does that which he has authorised to do.
An employee in case of necessity is also considered as acting in the course of employment, if he is performing his employer’s business. For instance, a Government employee was travelling in a jeep to deliver medicines in the course of his duties. He had licence to drive and had also been authorised to drive the Government’s vehicle in the case of necessity. The driver of the jeep suddenly took ill and, therefore, he had to drive, in order to ensure the medicines reaching their destination. While driving the jeep he negligently run over the deceased. It was held that he was acting in the course of employment and thus the Government was liable.
The trend of the recent decisions of various High Courts is to allow compensation to the accident victim against the owner of the vehicle and through him, the insurance company. The aspect of the relationship of the independent contractor and employer between the mechanic or the workshop and the owner of the vehicle has been generally ignored, such liability has been recognised on the basis of the law of agency by considering the owners of the workshop or the mechanic as an agent of the owner of vehicle.
The recent trend in law to make the master liable for acts which do not strictly fall within the term ‘in course of employment’ as ordinarily understood. The owner is not only liable for the negligence of the driver. if that driver is his servant acting in the course of the employment but also when the driver is with the owner’s consent, driving, the car on the owner’s business or for the owner’s purposes.
Thus, although the particular act which gives the cause of action may not be authorised, yet, if the act is done in the course of employment which is authorised, the master is liable. In other words, “to hold master liable for the wrongful act of a servant it must be committed in the course of master’s business so as to form part of it, and not merely, coincident in time with it,” but if the torts are committed in any manner beyond the scope of employment the master is liable only if he was expressly authorised or subsequently ratified them.
The following two cases may be cited as illustrations where the servants could not be said to be acting in the course of their employment:
(i) Joseph Rand v. Craig: A employed his servants to carry refuse and deposit it in a certain place set apart for that purpose. In order to avoid themselves more trouble and without any benefit for A those servants wrongfully deposited the refuse upon B’s premises instead of carrying it to its proper distination at longer distance. B sued A for trespass. In the circumstances, the master was not held liable for the action of the servants. But it is submitted that in the above case, if A had asked his servants to deposit the refuse wherever they like instead of specifying a particular place, he would have been liable.
(ii) Cheshire v. Bailey. The plaintiff, silversmith, engaged the defendant’s brougham, horse and coachman for the purpose of being driven to London with samples of silver which were to be shown to customers. While the plaintiff was temporarily absent from the brougham in course of business, the coachman acting in collusion with certain thieves drove the coach into a corner where some of the samples were stolen by the thieves. The plaintiff sued defendant for the value of the goods. It was held that the defendant, namely, the driver’s employer was not liable for the driver so conspiring with the thieves, was no longer acting within the scope of his employment.
Main incidents of Master’s Liability
We might refer to six principal ways in which a master becomes liable for the wrong done by servants in the course of their employment. T
1. The wrong committed by the servant may be the natural consequence of something done by him with ordinary care in execution of his master’s specific orders.
In Indian Insurance Co. Association Pool, Bombay v. Radhabai, the driver of a motor vehicle belonging to the Primary Health Centre of the State was required to bring the ailing children by bus to the Primary Health Centre. The driver in the course of driving gave the control of the steering wheel to an unauthorised person. It was an authorised mode of doing the act authorised by the master. It was held that in such circumstances, the Government, viz., the owner of the vehicle is vicariously liable for the negligence of the driver in permitting unauthorised person to drive the vehicle.
In N.S. Jayanandan v. State of Kerala, the plaintiff was riding his motor cycle along the main road from North to South and a police jeep driven along the side road on the cast entered the main road at the road junction in a very high speed and dashed against the motor cycle and knocked down the plaintiff and his companion rider.
It was held that is was the duty of the police jeep driver to give way to the motor cycle coming along the main road on its right side. He was negligent in not taking care for the same. He was servant of the State. Hence the State is vicariously responsible in damages to the plaintiff.
2. Master will be liable for the negligence of his servant
In Baldeo Raj v. Deowati, in this case the driver of a Truck sat by the side of the conductor and allowed the conductor to drive. The conductor caused an accident with a rickshaw as a result of which a rikshaw passenger died. It was held that the act of the driver in permitting the conductor to drive the vehicle at the relevant time was a breach of duty by the driver, and that was the direct cause of the accident. For such negligence of the driver his master was held vicariously liable.
In Collins v. Hert Fordshire County Council, a house surgeon caused the death of a patient by negligently injecting cocaine in place of procaine. The hospital authorities were held vicariously liable.
At this stage, it is necessary to know that the master’s liability for the negligence of his servant is limited to cases in which the latter acts in the course of his employment. But if the servant, instead of doing that which he is employed to do, does something entirely new, i.e., something he is not employed to do at all, the master will not be responsible for the negligence of his servant in doing it. The following cases may be noted as illustrations of this proposition.
(i) Bhaiya Lal v. Rajvani: If a driver acting in the course of employment drives his master’s car rashly or negligently so as to cause injury to another, the master is vicariously liable in damages for the driver’s tort. The basis of liability is that the act of driving was authorised
though the mode of performing it was improper. The act does not cease to be authorised only because it is improperly performed. The owner cannot disclaim liability only on the ground that the driver performed the authorised act improperly by trying to cross a flooded bridge. The
act of giving a lift to an authorised person is not merely a wrongful mode of performing an act of the class which the driver was employed to perform, but the performance of an act of a class which he was not authorised to perform at all.
(ii) Gyarisi Devi v. Sain Das: The driver of a truck left the loaded truck in charge of the cleaner and went to his house for taking meals, He directed the cleaner to get the truck unloaded. It was held that the driver was engaged in an activity for furthering the business of his master. The duty of having the truck unloaded was cast on the driver but instead of doing himself he entrusted the work with the cleaner and this made the driver liable for the loss suffered by claimant on account of the negligent act committed during the course of his employment.
(iii) Karuppan Bhoomidas v. Port of Singapoure Authority: The deceased was member of a gang of stevedors all of whom were in the regular employment of the Singapore Port Authority. While the gang was engaged in loading a ship from the wharfside in Singapore, the deceased was injured in an accident caused by the negligence of a fellow workman and died subsequently. The port authority was held liable.
A master is not liable for the servant’s wrong committed while making an unauthorised use to master’s property for his (i.e., servant’s) own purpose. The following cases may be noted as illustration of this proposition:
(i) Pulton v. London Railway, (Station Master’s case): A station master, having demanded payment for the carriage of a horse conveyed by the defendant railway company arrested and detained the plaintiff for non-payment until it was ascertained by telegraph that all was right. The railway company had no power to arrest for non-payment of carriage. Here, the implied authority of station master does not extend to the doing of acts which are ultra vires of the company. And, in the absence of any proof of express authority the station master was acting beyond the scope of his employment and the company was, therefore, not liable for the act of its servant.
(ii) Beard v. London General Omnibus Co. (Conductor Driving Bus): At the end of a journey C, a conductor of an Omnibus Company, in the temporary absence of the bus driver, took upon himself to drive the omnibus for the purpose of turning it round for the return journey, and negligently, caused collision with B’s motor car and damaged it. B sued the company for the damages done to his motor car. In this case driving not being part of the work which C, the conductor, was employed to do, the Omnibus Company was not responsible for his negligent driving.
3. Servant’s wrong may consist in excess of mistaken execution of lawful authority, but two things have to be established.
In the first place, it must be shown that the servant intended to do on behalf of his master something which he was, in fact, authorised to do. Secondly, it has to be proved that the act if done in a proper manner, would have been lawful.
4. Wrong’ may be a wilful wrong-but doing on the master’s behalf and with the intention of serving his purpose.
If a servant performs some act which indicates recklessness in his conduct but which is within the course of his employment and it calculated to serve the interest of the master, then the latter will be saddled with the responsibility for it.
5. Wrong may be due to the servant’s fraudulent act
A master is liable also for the wrongful acts of his servants done fraudulently. It is immaterial that the servant’s fraud was for his own benefit. The master is liable if he has held that the servant was having the authority to do the act, i.e., the act must be comprehended within his ostensible authority. The underlying principle is that on account of the fraudulent act of the servant, the master is deemed to extend a tacit invitation to others to enter into dealings or transactions with him. Therefore, the master’s liability for the fraudulent acts of his servants is limited to cases where the plaintiff has been invited by the defendant to enter into some sort of relationship with a wrong doer. Consequently, where there is no invitation, express or implied, the acts will be treated as the independent acts of his servant himself, and outside the scope of his employment.
6. Wrong may be due to the Servant’s Criminal Act
Though there is no such thing as vicarious liability in criminal proceedings, yet in a civil action, a master is liable in respect of the criminal acts of a servant, provided they are committed in the course of his employment.
In Morris v. C.W. Martin and Sons Ltd. The plaintiff had sent five coats to X to be cleaned, and X, with her permission, sent it to the defendants, who were specialist cleaners. The defendants handed the coat to their servant M, to clean it, and M stole the coat. It was held by
the Court of Appeal that on these facts the defendants were liable.
In Roop Lal v. Union of India, some military Jawans lifted some firewood belonging to the plaintiff and carried the wood in military vehicles for the purpose of camp fire and fuel. The plaintiff brought a suit against the Union of India. It was held that the act of Jawans fall within the course of employment of the Union of India who was liable for the same.
Question:- Describe the principle of vicarious liability of the master in respect of acts of his servant. What are the exceptions to it, if any ?
Or
What do you mean by vicarious liability in Tort? Whether a master is liable for committing fraud, theft by his servant during course of employment?
Or
What do you mean by vicarious liability? Explain with decided cases.