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