Professional Documents
Culture Documents
Vicarious Liability
Vicarious Liability
Introduction 1
Types of liability 3
Latin Maxim 13
Conclusion 15
Bibliography 17
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INTRODUCTION
The law of tort has been used for many centuries to protect personal interests such as
property, reputation, body etc. It ensures justice is done by looking into the claimant's
need for compensation, which is paid by the defendant who has committed a breach of
duty. The general rule in tort law is that liability is personal, i.e., liability is generally
linked to a breach of ones own duty and a person is liable for the wrongs committed by
him only. However, in certain scenarios, the law makes one person being liable for the
harm caused by another, because of some legally relevant relationship between the
two. This is known as the doctrine of vicarious liability
The doctrine of vicarious liability generally operates within the law of torts. It
has become well-established in English law and historically has been called Master
and Servant liability. Vicarious liability means liability which is incurred for or instead of,
another. A person is responsible for his own acts. But there are circumstances where
liability attaches to him for the wrongs committed by others. The most common instance
is the liability of the master for wrongs, committed by his servant. In these cases liability
is joint as well as several. The other common example of vicarious liability is the liability
of an employer for the torts of his employees committed in the course of employment. It
is not necessary in such circumstances for the employer to have breached any duty that
was owed to the injured party, and therefore it operates as strict or no-fault liability. It is
possible that the injured party could be either an employee or a stranger, and the
employer can be held vicariously liable in both situations. The most important element
to establishing a case for vicarious liability is that the wrongdoer be acting as a servant
or employee, and that the wrong done be connected to the employees course of
employment. Vicarious liability can only be imposed if it is proved that the employee
was acting in the course of employment. This criterion is essential, and requires a
clear connection between the employment duties and the employees acts complained
of.
A reason for vicarious responsibility of employers is that employers usually are, while
their servants usually are not, financially capable of the burden of civil liability. The
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theory partly owes its existence to the anxiety of the injured person to find a solvent
defendant. Again it is said that the employer should be made liable because it is he
who has set the whole thing in motion.
Chief Justice Shaw of the Massachusetts Supreme Court in the case of farewell v.
Boston and Worcester Rly. Co. Stated that this rule is obviously founded on the great
principle of social duty, that every man in the management of his own affairs whether by
himself or by his agents or servants shall so conduct them as not to injure another; and
if he does not and another thereby sustains damage, he shall answer for it. If done by a
servant in the course of his employment acting within the scope of his authority it is
considered in contemplation of law, so far the act of the master, that the latter shall be
answerable civiliter. The maxim respondeat superior is adopted in that case from
general considerations of policy and security.
TYPES OF LIABILITY
1. LIABILITY BY RATIFICATION: An act done for B by A not for himself but for B
though without the authority of B becomes the act of the principle B if
subsequently ratified by B. If one person commits a tort assuming to act on
behalf of another but without his authority and that other subsequently ratifies
and assents to that act, he thereby becomes responsible for it. The person
ratifying the act is bound by the act whether it to be his detriment or advantage.
Maxims
Conditions of ratification
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1. Only such acts bind a principal by subsequent ratification as were done at the
time on his behalf.
2. The person ratifying the act must have full knowledge of its tortuous character.
3. An act which is illegal and void cannot be ratified.
A master is liable to third persons for every such wrong of his servant as is
committed in the course of his employment. Now, a wrongful act is said to be done in
the course of masters employment if it is- (1) authorised by the master or (2) a wrongful
and unauthorised mode of doing an act authorised by the master. In other words, to
hold a master liable for the wrongful act of a servant it must be committed in the course
of masters business, so as to form part of it, and not merely coincident in time with it.
For torts committed in any manner beyond the scope of employment, the master is
liable if he has expressly authorised, or subsequently ratified them.
Course of Employment
An employer will only be liable for torts which the employee commits in the course of
employment. Although this is a question of fact in each case, there is little consistency
in the decisions. It is therefore extremely difficult to state the law simply.
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Course of employment is legal considerations of all circumstances which may
occur in the performance of a person's job, especially during a period of time where
specific objectives are given by the employer to the employee are being fulfilled. The
course of employment encompasses the actual period of employment and the period
during which the employee, while on the employer's premises, prepares to commence
or to depart from work, such as by changing clothes. Employer-sponsored recreational
activities are also considered part of the course of employment when organized,
encouraged, or supported by the employer for business purposes, such as promotion of
inefficiency.
This 'implied authority' approach seems to have lost currency but it was accepted
in the early 20th century10 and it was even then probably little more than a means of
justifying the outcome which the courts desired.
An employer will usually be liable for acts which are wrongful ways of doing
something authorized by the employer, even if the acts themselves were expressly
forbidden by the employer. The court should determine the fundamental question of
whether the wrongful act is sufficiently related to conduct authorized by the employer to
justify the imposition of vicarious liability. Where there is a significant connection
between the creation or enhancement of a risk and the wrong that occurs, the employer
can be held vicariously liable.
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considered:
1.the opportunity afforded for the employee to abuse his power;
2.the extent to which the act is furthered by the employer's aims;
3.the extent to which the act is related to friction, confrontation, or any other kind of tort
4.the extent of the power of the employee over the victim; and,
5.The vulnerability of the potential victims.
This principle was applied in many cases like Rose v.Plenty.12 In this case, a
milkman had been forbidden by his employer to allow young boys to ride on the milk
floats and assist in delivering milk. However, he took a 13-year-old boy to help him on
his round, and the boy was injured through the milkman's negligent driving. The boy
sued both the milkman and the dairy. The Court of Appeal held that the milkman was
carrying out, albeit in a prohibited manner, the task which he was employed to do, so
the employer was liable.
In another case, L im pus v. London General Omnibus Co.13 a bus driver racing
to a stop to collect passengers deliberately obstructed the driver of a bus of a rival
company, overturning the latter's vehicle. This was done despite express prohibition by
his company against obstructing other buses. However, the defendants were liable. The
rationale was that the driver was acting within the course of his employment at the time;
it was immaterial whether his act was forbidden.
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motor cyclist caused by his negligence. The lorry driver had stopped at a way side caf
and crossed one section of a dual carriage way on foot in order to get refreshment
which was an act done while he was employed and with his employers permission. The
act of getting refreshments was just incidental to his employment
Illustration
ROBBERTS v. SHANKS, (1924) 27 Bom. L. R. 548. (Chauffeurs case).
On alighting from his car, the defendant ordered his chauffeur to take the car direct to
the garage. The chauffeur, however drove the car to his own residence, took his meals,
and whilst driving the car to the garage, negligently drove it into plaintiffs car and
caused damage to it. The defendant was held liable in damages for, at the time of the
accident, the chauffeur was acting in the course of his employment.
A master becomes liable for the wrong done by a servant in the course of his
employment in the following six ways-
1. The wrong may be the natural consequence of something done by a servant with
ordinary care in execution of the masters specific orders.
2. The wrong may be due to the servants want of care or negligence in carrying on
the work or business in which he is employed.
3. The servants wrong may consist in excess or mistaken execution of a lawful
authority.
Here it must be shown-
(a) That the servant intended to do on behalf of his master something which he
was, in fact, authorised to do; and
(b) That the act, if done in a proper manner, or under the circumstances
erroneously supposed by the servant to exist, would have been lawful.
4. The wrong may be a wilful wrong, done on the masters behalf and with the
intention of serving his purposes.
5. The wrong may be due to the servants fraudulent act.
6. The wrong may be due to the servants criminal act.
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OWNER AND INDEPENDENT CONTRACTER
The general rule is that for the acts and omissions of an independent contractor, his
employer is not liable. There are however exceptions to this rule.
3. LIABILITY BY ABETMENT: In actions of torts, those who abet the tortuous acts
are as much liable as the tort-feasors themselves.
The government of India may sue or be sued by the name of the Union of India and
the government of a State may sue or be sued by the name of the state and may,
subject to any provisions which may be made by act of parliament or the state
legislature enacted by virtue of powers conferred by this constitution, sue or be sued
in relation to their respective affairs in the like cases as the Dominion of India and
the corresponding Provinces or the corresponding Indian states might have sued if
this constitution had not been enacted.
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(a) The ruling principle is that Government is not liable for torts of its employees
committed in the course of performance of sovereign functions.
(b) The theoretical doctrine as per (a) above is still adhered to, but it is being applied
in a liberal manner and the courts interpret sovereign narrowly, as is shown by
recent law.
A suit lies against the government for wrongs done by public servants in the
ourse of business, such as death or injury caused to a person by Police
atrocities; Saheli v. Commissioner of Police, AIR 1990 SC 513: (1990) 1 SCC
422: 1990 SCC (Cri) 145.
In lame words sovereign functions are those functions which can be done by the
government agencies only.
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One of the tests to determine if the legislative or executive
function is sovereign in nature is, whether the State is
answerable for such actions in courts of law. For instance,
acts such as defense of the country, raising (the) armed forces
and maintaining it, making peace or war, foreign affairs, power
to acquire and retain territory, are functions which are
indicative of external sovereignty and are political in nature.
Therefore, they are not amenable to jurisdiction of ordinary
civil court. No suit under Civil Procedure Code would lie in
respect of it. The State is immune from being sued, as the
jurisdiction of the courts in such matters is impliedly barred.
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In Welfare State, functions of the State are not only defense
of the country or administration of justice or maintaining law
and order, but it extends to regulating and controlling the
activities of people in almost every sphere, educational,
commercial, social, economic, political and even marital. The
demarcating line between sovereign and non-sovereign
powers, for which no rational basis survives, has largely
disappeared. Therefore, barring functions such as
administration of justice, maintenance of law and order and
repression of crime etc. which are among the primary and
inalienable functions of a constitutional Government, the State
cannot claim any immunity.
The court also distinguished the judgment in Kasturi Lal, in these words:
In this context, the court (in Nagendra Rao) offered the following
distinction. A law may be made to carry out the primary or
inalienable functions of the State. Criminal Procedure Code is one such
law. A search or seizure affected under such law could be taken to be an
exercise of power which may be in domain of inalienable function.
Whether the authority to which this power is delegated is liable for
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negligence in discharge of duties while performing such functions, is a
different matter. But, when similar powers are conferred under the other
statute as incidental or ancillary power to carry out the purpose and
objective of the Act, then, it being an exercise of such State function
which is not primary or inalienable, an officer acting negligently is liable
personally and the State vicariously. Maintenance of law and order or
repression of crime may be inalienable functions, for (the) proper
exercise of which, the State may enact a law and may delegate its
functions, the violation of which may not be sued in torts, unless it
trenches into and encroaches on the fundamental rights of life and liberty
guaranteed by the Constitution. But that principle would not be attracted
where similar powers are conferred on officers who exercise statutory
powers which are otherwise than sovereign powers as understood in the
modern sense. The Act (Essential Commodities Act) deals with persons
indulging in hoarding and black marketing. Any power for regulating and
controlling the essential commodities and the delegation of power to
authorized officers to inspect, search and seize the property for carrying
out the object of the statute cannot be a power, for (the) negligent
exercise of which the State can claim immunity. No constitutional system
can, either on State necessity or public policy, condone negligent
functioning of the State or its officers.
CASE:
In this case the plaintiffs husband gave some amount to his friend Kapil Deo Shukla in
the employ of the defendant Bank, who exercised much influence on other employees
of the Bank and used to work at different counters. The Bank viewed his actions with
approval and acted with negligence. The plaintiff as well as other constituents regarded
him as an employee and a responsible person of the Bank and quite often used to hand
over the money and letter of instructions to him. But the plaintiff found that his funds
were misappropriated. The Supreme Court decided that the clerk acted as a friend and
not as an employee; hence he was not an agent so the bank cannot be held liable
vicariously.
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LATIN MAXIM
Respondeat Superior
"Respondeat superior" (Latin: "let the master answer"; plural: respondeant superiores)
is a legal doctrine which states that, in many circumstances, an employer is responsible
for the actions of employees performed within the course of their employment. This rule
is also called the "Master-Servant Rule", recognized in both common law and civil
law jurisdictions.
In a broader scope, respondeat superior is based upon the concept of vicarious liability.
In Common Law:
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Employer/employee relationships are the most common area wherein respondeat
superior is applied, but often the doctrine is used in the agency relationship. In this, the
principal becomes liable for the actions of the agent, even if the principal did not directly
commit the act. There are three considerations generally:
1. Was the act committed within the time and space limits of the agency?
2. Was the offense incidental to, or of the same general nature as, the
responsibilities the agent is authorized to perform?
3. Was the agent motivated to any degree to benefit the principal by committing the
act?
The degree to which these are answered in the affirmative will dictate the degree to
which the doctrine can be applied.
Common law distinguishes between civil and criminal forms of respondeat superior.
In International Law:
At issue in the Nuremberg war crimes tribunal following the Allied occupation of Nazi
Germany after World War II was a question concerning principles closely related to
respondeat superior, which came to be known by the term command responsibility. The
Nuremberg trials established that persons cannot use the defense that they were only
following the orders of their superiors, if that order violates international norms but
especially that superiors that ordered, or "should have known," of such violations yet
failed to intervene are also criminally liable.
Qui facit per alium facit per se, is the authorized act of an agent is as same as the
principal's acts. A principal's tort liability is based not on an agency but on the
relationship of master and servant expressed in the maxim respondent superior.
However, both rules and maxims are founded upon the principle that a duty rests upon
every man in managing his/her own affairs, either by himself/herself or by his/her agents
or servants. But if another person gets injured upon the acts, the principal is liable for
the damage.
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Conclusion
We have seen the meaning of vicarious liability and its application under tort law under
many circumstances as mentioned above.
Vicarious liability is a legal concept which refers to one party being held liable for the
injury or damage sustained by another party, in spite of the fact that they had no active
involvement in the incident. The intent behind vicarious liability is to hold the proper
party accountable when harm is committed. The victim needs compensation and the
law provides so by applying the principle of qui facit per alium facit per se that means
he who acts through another shall deemed to have acted on his own, the courts hold
the employer or principal or partner responsible as per the situation. We have looked at
a variety of situations in which a party, including contractors, parents and employers,
may be charged with vicarious liability.
Vicarious liability is sometimes applied in criminal law too. In India sections 154, 155 etc
of the Indian Penal Code are classic examples of the same. However application of
vicarious liability to crimes has been greatly criticized. This is because vicarious criminal
liability would violate either or both of two basic principles of the criminal law. According
to the first principle, the actus reus requirement, a person cannot be guilty of a crime
unless the person's guilty conduct includes a voluntary act or omission. One feature of
the actus reus requirement is the protection of personal security it affords by forcing
criminal statutes to provide a bright line that a person can choose not to cross and
thereby avoid criminal liability. By holding a person liable for the conduct of another,
vicarious liability undermines this control principle of the actus reus requirement,
because a person cannot control the conduct of others in the same way that she can
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control her own. Just as importantly, vicarious liability may violate a second principle,
that criminal liability must be based on personal fault. Both retributive and utilitarian
justifications for criminal penalties demand that fault accompany the moral
condemnation and harsher punishments associated with criminal conviction. By
punishing the parent for theft if a child steals, for example, vicarious liability could violate
this basic rule. Nowadays, vicarious liability in criminal law is rarely applied except in
very special circumstance.
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BIBLIOGRAPHY
Websites
1. www.wikipedia.org
2. www.scribd.com
3. www.legalserviceindia.com
4. www.manupatra.com
Books
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