Vicarious Liability

Vicarious Liability

Introduction

Generally anyone is liable for his wrongful acts, but in vicarious liability, one person will be held accountable the act done by another person may arise like A is responsible for the unlawful act done by, but there should be a relation between A and B and should do wrongful act be done in a certain way, connected with this relationship. Like master-servant, principal-agent.

What is Vicarious Liability?

Vicarious liability is that liability under this a person held liable for the act done by another person. Still, both of them are under a relationship and the deed done during the employment. E.g. A is a waiter who works under B, and during the occupation, he has thrown the plate on the face of customer and customer got injured. However, A and B’s tort has been committed, but B will also be liable because A and B were in a master-servant relationship.

Relations in which Vicarious Liability arises

These are the significant relationship in which vicarious liability arises.

  1. Master and Servant.
  2. Partners in a Partnership Firm.
  3. Principal and Agent.
  4. Company and its Directors.
  5. Owner and Independent Contractor.

Vicarious Liability of Master for torts by Servant

 In a master-servant relationship, the Master is employer and Servant is an employee. A servant works on the command given by his Master. Then particular relation exists between them and in this situation, torts committed by Servant then Master will also be held liable.

There are so many cases where Servant does the act in behalf of his Master, and as per law, it is deemed that Master is doing action himself, so if Servant commits any tort then Master will also be held liable. There are two maxims on which liability of Master is based.

  • Qui facit per alium facit per se: It means that “the act of servant is the act of master.”

Example: If A is the car owner and he kept B to drive the car for trade if any accident happens by B, A will be liable for that accident.

  • Respondent Superior: It means that the superior should be held responsible for the acts done by his subordinate.

Above two maxims have played a significant role in the development of the vicarious liability of Master.

Essentials of Vicarious liability in Master-Servant Relationship

  • The Servant has done an act which is the amount to a tort
  • The tortious act has been committed by Servant during his employment under the Master.

Reasons For the liability of the Master

 There are so many reasons behind this, why the Master is liable for an act done by his Servant.

  1. An act done committed by the Servant is considered to be executed by his Master. Therefore in the law of torts, it is assumed that if any tortious activity is done by Servant then itself Master will be liable for the wrong.
  2. The Master is in better financial condition as compare to Servant, and thus in any loss caused by the act done by Servant, the Master is better suited to off the damages. When the Master is held liable, the Master will take proper care and precaution to avoid the liability.
  3. When a servant does any act, then Master is taking benefits then if any tortious activity committed by the Servant, then Master will be liable for the loss occurred.

Test for Determining Master-Servant Relationship

There are specific test has been developed to test the relationship of Master-Servant.

  • Traditional View-Control Test

As per this test, for the definition of a Master- servant relationship, it could see whether the Master has the only power to the instructor the way of doing the act as well and if such power exists then as per this test, the master and servant relationship exists between the two.

  • Modern View

The traditional test was not applicable in every situation. Like any doctor working in a hospital, the hospital owner cannot instruct the doctor for which process will be efficient and how to do it. Then the new test has been developed for determining the Master-Servant relationship.

Multiple Test

This test provides that people who are in a contract of service are deemed to be employees whereas all the people in contracts are an individual contractor.  In this case Ready Mixed Concrete v Minister of Pensions and National Insurance[1], three conditions have been laid down for contract of service.

  1. The Servant is ready to provide his services to the Master in exchange for wages or another consideration.
  2. He agrees to be subjected to such a degree of control so as to make the person his master in performance of his work.
  3. The other provisions of the contract are consistent with this provision of being a contract of service.

 This view has also explained in the case of The Management of Indian Bank v.The                                                   Presiding Officer[2]

This test also considers other essential points used to determine the master-servant relationship, such as who owns the tools being used for the work, the employee paid wages monthly or daily, and all other relevant factors.

Difference between Servant and Independent Contractor

A servant and independent contractor both works for his Master and what shall be done not decided by them, but there is a difference between them. In contrast, in the Servant’s case, the Master is liable for the tortious act, but in an independent contractor, the Master cannot be held responsible.

In the Servant’s case, Master will give all the instruction to perform the act with the process, but the independent contractor master will guide what action should be completed but will not define strategy.

Various ways in which liability of Master arises

  • Wrong done as a natural consequence of an act by a Servant for Master with due care.

If an employee has done the work as per the instruction given by his Master with proper care, then if any damage will occur then, Master will be held liable.

In Gregory v. Piper,[3] the defendant and plaintiff were some disagreement between them and the defendant,  ordered his Servant to place rubbish around a pathway to stop the plaintiff from crossing on the way. The Servant has done the act with proper care, so, that no part of it will go to touch the plaintiff’s property but after some time, the rubbish slid broken down and started feeling the plaintiff’s property and then he sued for trespass. The defendant or Master of the Servant was held liable despite his Servant taking all due care.

  • Wrong due to Negligence of Worker

A master is also held liable for any act committed by Servant negligently or not taken proper care.

In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P)[4] The deceased was travelling by a car driven by the respondent company’s manager, and it met with an accident, and he lost his life. The dependents of the deceased filed a suit, and the tribunal accepted damages. Still, the High Court held that the accident’s grounds do not make the respondent company liable for the damages. But the Supreme Court said in his judgement and overruled the decision of the High Court and held that from the grounds of this case it was clear that the accident had occurred only due to the negligence and careless behaviour of the manager who was driving the car during his employment and therefore, the respondent company or we can say Master was held liable for his negligent act committed by the manager.

Wrong by excess or mistaken execution of a lawful authority

  1.   The Servant had intentionally done an act on behalf of his Master, which he was supposed to do.
  2. The act would be lawful if it completed it in those circumstances which the Servant mistakenly believed were real or if the action would have been legal if done correctly.

In Bayley v Manchester S&L Railway[5] (1873) L.R. 8 CP 148, an employee of a railway company mistakenly believed that the plaintiff was in the wrong carriage even though he was in the right one. The porter thus pulled the plaintiff due to which the plaintiff sustained injuries. Here, the Court held the railway company vicariously liable for the actions of the porter because did it in the course of his employment and this act would have been proper if the plaintiff was indeed in the wrong carriage

A wrong committed wilfully by a servant to serve the purpose of the Master.

If a servant has done ant act wilfully wrong or recklessly, then the Master will be held liable if those act has been committed during employment.

In Limpus v. London General Omnibus Co. [6]The defendant company’s driver, wilfully done against the express orders not to get involved in racing or obstruct other omnibuses, had driven to impeding the plaintiff’s bus. In this case, the Court held that the defendant company was liable for the tortious act of driver because the driver’s act of driving the omnibus was within approximately of the course of employment.

In Peterson v. Royal Oak Hotel Ltd.[7] (1948) N.Z.I.R. 136, the plaintiff was a customer who has refused to take further intoxicated drink by the barman, who was employed under the respondent and then the plaintiff threw a glass at him. The barman took a piece of the broken glass. He threw back on the plaintiff, an nd that piece of glass hit his eyes. It. The respondent hotel was held liable because barman was under the respondent in the master-servant relationship.

Wrong by Servant’s Fraudulent Act

If any fraudulent activity was done by Servant then also Master will be held liable.

In Lloyd v. Grace Smith & Co.[8] , the plaintiff was a widow who owned 1000 pounds as dues on a mortgage and a cottage. She went to the defendant manager, 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 collect her money, but he absconded with the money. Thus, she sued the defendant company. It held that the defendant was liable for the manager’s fraudulent act because even a fraudulent act is not authorized; the manager was allowed to take her signature. Thus it was within the course of employment.

Conclusion

Under Vicarious Liability, a person can be held liable for an act committed by another person if that person in a Master-Servant relation. The Servant does the action on behalf of his Master, and therefore the law of torts provides that any wrongful act done in the course of employment by the Servant is bound to make the Master liable for it. There have been so many tests for determining that relation of Master and Servant. The Court also applies in its decision according to the case’s facts to define that relationship.


[1] (1968) 2 QB 497

[2] (1990) I.L.L.J. 50 Mad

[3] (1829) 9 B & C 591

[4] 1977 AIR 1735, 1977 S.C.R. (3) 372

[5] (1873) L.R. 8 CP 148

[6] (1862) EngR 839

[7] (1948) N.Z.I.R. 136

[8] (1912) A.C. 716

1 Points


2 thoughts on “Vicarious Liability”

  1. poppy says:

    Awеsome issues here. I’m very glad to see your article. Thank you so mucһ and I’m having a look forward to touch you.
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  2. Nishi Kumari says:

    It is indeed a very well written article however I my opinion the author has missed out on two important aspect of vicarious liability .
    Firstly, there are some exceptions to this rule which. The exceptions are –

    • When the servant is under a statutory duty which he can not delegate, the master is not liable.

    • When there is a case where the servant is involved with the withdrawal of support from the neighboring land, the master is not liable.

    • When situations involve very hazardous acts, the master is not liable.

    • When situations involve escaping from the fire, the master is not liable.

    • When situations using the highways, the master is not liable

    Secondly, the concept of vicarious liability in criminal law –
    Under criminal law also one person can become liable for the act of the other if he is a party to the offense.
    For example – a driver of a car which goes and robs a bank will also be liable even though the driver did not get out of the car.

    The principle which is followed in the criminal law is that a person may be held liable as the principal offender, even though the actus reus was committed by some other person. The person committing the act on the instruction of the other will not be considered as innocent and will also be held liable. The law focuses on the relationship between the two parties and attributes the act of the one to the other.
    Nevertheless, it should be noted that the concept of vicarious liability is a civil concept and in the case of criminal law it is an exception rather than a rule.

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