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Law of Torts- Vicarious Liability

Updated: Jun 2, 2021

What is Vicarious Liability?


As a general rule, a man is liable only for his actions but there are certain circumstances in which a person is liable for the wrongs committed by others. This is called "vicarious liability", that is, liability incurred for another.


Vicarious Liabilty name plate in front of Gavel and thumping plate

In the words of SALMOND, "In general a person is responsible only for his acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of another, however, blameless himself."


The most common instance is the liability of the master for the wrongs 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.


The doctrine of vicarious liability is based on principles that can be summed up in the following two maxims-


(a) Qui facit per alium facit per se


The maxim means, "he who does an act through another is deemed in law to do it himself”. The master's responsibility for the servant's act had also its origin in this principle.


The reasoning is that any 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 how 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 translates to “let the master answer" and 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 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 business, are done by his master's express or implied authority and are, in truth, the act of the master.


It puts the master in the same position as if he had done the act himself. 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 authorized by the former and committed by the latter.



What are the relationships that fall under Vicarious Liability?


1. MASTER and SERVANT


Any act done by the servant in the course of his or her employment, makes the master liable for such act, besides obviously making the servant liable.


Master compelling a servant to work - from the play Prospero and Calliban


As discussed above, the liability on the master for the acts of the servant is based on the principle of Respondeat Superior, as well as the maxim- Qui facit per alium facit per se.


The master and the servant are considered to be joint tortfeasors and hence they are both equally liable for the wrong and it is up to the plaintiff, to decide, who he or she wants to be acted upon.


Whether the act was done against the express instructions of the Master or without any motive of profit or gain for the Master is not relevant to the question of liability of the master.


Liability arising out of Master and Servant


So that the master may be held liable for the tort of his servant, the following conditions should be fulfilled-


(1) Tort is committed by the 'servant', and


(2) The servant committed the tort while acting in the course of employment of his master.


Servant


Lord Thankerton has said that there must be a contract of service between the master and servant. In addition, he has also enumerated the following four essentials-


The master's power of selection of his servant,

The payment of wages or other remuneration,

The master's right to control the method of doing the work, and

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 how 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.



Difference between Servant and Independent Contractor


A servant is an agent who works under the supervision and direction of his employer. Whereas, an independent contractor is his own master.

A servant is a person employed to obey his master's directions from time to time, whereas, an independent contractor is a person engaged to do certain works but to exercise his discretion as to the mode and time of doing it.

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,

The wrongful act has been authorized by the master, or

The mode in which the authorized act has been done is wrongful or unauthorized. It is the general rule that the master will be liable not merely for what he has authorized his servant to do but also for how he does that which he has authorized to do.


An employee in case of necessity is also considered acting in the course of employment if he is performing his employer's business. For instance, a Government employee was traveling in a jeep to deliver medicines in the course of his duties. He had a license to drive and had also been authorized 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, to ensure the medicines reaching their destination, While driving the jeep he negligently runs over the deceased, It was held that he was acting in the course of employment and thus the Government was 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 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 authorized or subsequently ratified them.


Main incidents of Master's Liability


There are 6 major ways in which a master becomes liable for the wrong done by servants in the course of their employment. They are as follows-


i) The wrong committed by the servant may be the natural consequence of something done by him with ordinary care in the execution of his master's specific orders.


In Indian Insurance Corporation, 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 unauthorized person.


It was an unauthorized mode of doing the activities authorized 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 an unauthorized person to drive the vehicle.


ii) Master will be liable for the negligence of his servant.


In Baldeo Raj V. Deowati, 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 rickshaw 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.


iii) Servant's wrong may consist more than mistaken execution of lawful authority. Here 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 authorized to do. Secondly, it has to be proved that the act if done properly would have been lawful.


iv) Wrong' may be a willful wrong but doing on the master's behalf and to serve his purpose.


If a servant performs some action that indicates recklessness in his conduct but which is within the course of his employment and calculated to serve the interest of the master, then the latter will be saddled with the responsibility for it.


v) 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 benefit. The master is liable if the servant was having the authority to do the act, that is, 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 wrongdoer.


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,


vi) Wrong may be due to the Servant's Criminal Act.


Though there is no such thing as a 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.


2. PRINCIPAL and AGENT


Where one person authorizes another to commit a tort, the liability for that will not only be borne by that person who has committed it, but also of those who authorized it.


It is based on the general principle "Qui facit per alium facit per se" which implies that "the act of an agent is the act of the principal."


a person hiring an agent via a contract

For the acts which are authorized by the principal and performed by the agent, both the Principal and the agent are liable. Their liability is joint and several.


However, the act may be committed with an express authority or implied. It may seem improbable that a Principal requires his agent to do any wrongful task, but the only concern here is whether the wrong was done in the ordinary course of employment of the agent.


In Ormrod v Crossville Motor Service Ltd, the owner of a car had requested his companion to drive the said car. In the course of the car being driven by the friend, it came into collision with a bus. It was held that the friend acted as the agent of the owner, and the owner was held vicariously liable for such wrong.

3. PARTNERS


Business partners shaking hands in agreement.

Since the relationship between partners resembles that of an agent and a principal, therefore, the liability here is also derived from the principle of the rule of agency. Thus, in the case of a partnership firm, for the wrongs committed by one partner, all the other partners are equally liable for the act, as the guilty partner.


The liability of each partner in a firm is 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 to make a breach of contract with his employer (plaintiff) by divulging secrets relating to his employer's business.

Both the partners of the firm were held to be liable for this wrongful act (inducing breach of contract) committed by only one of them.


In conclusion, Vicarious Liability may arise out of a variety of scenarios and in various combinations of relationships between the employer and employee, and sometimes even among the Partners.

It is wise to keep notice of exceptions such as an Independent Contractor, for whose acts the Master will not be liable. (But there is an exception to this as well. You will found out about it in the upcoming articles).

Check out our other articles on Law of Torts, HERE


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Don't forget to check out the references, thank you!


REFERENCES:


1. Harpwood, Vivienne (2000), Principles of Tort Law, Cavendish Publishing Company


2. Bangia, R.K., (2019), The Law of Torts, Allahabad Law Agency Publishers





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