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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

CONCEPT OF VICARIOUS LIABILITY

LAW OF TORTS

Mrs. Sri Devi Mam

NIKHIL JAIN
2015078 I semester
CONCEPT OF VICARIOUS LIABILITY

ACKNOWLEDGEMENT

I have made my project titled “CONCEPT OF VICARIOUS LIABILITY” under the supervision
of prof. Sri Devi., Faculty Lecturer, Damodaram Sanjivayya National Law University. I find no
words to express my sense of gratitude for Sri Devi mam for providing the necessary guidance at
every step during the completion of this project.

I am also grateful to the office, librarian and library staff of DSNLU, Visakhapatnam for allowing
me to use their library whenever I needed to. Further I am grateful to my learned teachers for their
academic patronage and persistent encouragement extended to me. I am once again highly
indebted to the office and Library Staff of DSNLU for the support and cooperation extended by
them from time to time. I cannot conclude with recording my thanks to my friends for the
assistance received from them in the preparation of this project.
ABSTRACT

Vicarious liability that is the liability of one person for the act done by another person may
arise. It is necessary that there should be a certain kind of relationship between A and B and
the wrongful act should be ,in a certain , connected with that relationship; Liability of
principal for the tort of his agent; and Liability of partners of each other’s tort; and Liability
of the master for the tort of his servant .
When an agent commits a tort in the course of the performance of his duty as an
agent, the liability of the principal arise for such a wrongful act.
When the wrongful act is done by one partner in the ordinary course of the business of the
firm, all the other partners are vicariously liable for the same.
The master is vicariously liable for the wrongful act done by his servant in the course of
employment.
Table of Content

TABLE OF CONTENTS

S. no. CONTENTS Pg no.

` INTRODUCTION

OBJECTIVE OF THE STUDY

RESEARCH METHODOLOGY

REASON FOR THE SELECTING OF THE TOPIC

RESEARCH QUESTION

NATURE OF VIACRIOUS LIABILITY

VICARIOUS LIABILITY WITH REFERENCE TO PRINCIPAL


AND AGENTS

VICARIOUS LIABILITY WITH REFERENCE TO PARTNERS

VICARIOUS LIABILITY WITH REFERENCE TO MASTER AND


SERVANT
ACT DONE OUTSIDE THE SCOPE OF EMPLOYMENT
THE DOCTRINE OF COMMON EMPLOYMENT
VICARIOUS LIABILITY OF STATE FOR HIS SERVANT
CONCLUSION
BIBLILOGRAPHY
Introduction

Vicarious liability is the doctrine in torts which imposes responsibility upon one person for the
failure of another, with whom the person has a special relationship (such as PARENT and CHILD,
employer and employee, or owner of vehicle and driver,), to exercise such care as reasonably
prudent person would use under similar circumstances. Vicarious liability is a legal doctrine that
assigns liability for an injury to a person who did not cause the injury but who has a particular
legal relationship to the person who did act negligently. . Legal relationships that can lead to
imputed negligence include the relationship between parent and child, Husband and Wife, owner
of a vehicle and driver. Ordinarily the independent negligence of one person is not imputable to
another person.

Vicarious liability refers to a situation where someone is held responsible for the actions or
omissions of another person. In a workplace context, an employer can be liable for the acts or
omissions of its employees, provided it can be shown that they took place in the course of their
employment. For example, ‘A’ is a servant of ‘B’ and one day A go to market for buying
vegetables. When he was return then he fight with ‘C’ and C got some injury. So, C sued D
vicariously liable. So B is liable for the act of his servant under vicariously liability.

Objectives of study:

In this topic researcher would analyze concept of vicarious liability. Researcher would also
analyses that on what basis rule of this concept.

Research Methodology-

This research is based on doctrinal research. I would be doing my research from data collected
from secondary sources which will include materials available on the internet and books,
magazines and journals available in the library. The research will be deductive in nature and the
footnoting style will be as per the established standard of the University.

Reasons for selecting this topic:

The reason behind selecting this topic is that to know about civil wrong in which liability of
employer arise. This topic is clearly based on law of tort.
Research question: -

(1) Any one is liable for the act of others


(2) What is vicarious liability

Nature of vicarious liability: -

Vicarious liability are based on the two rule.

First rule of Vicarious Liability is based on the maxim ‘Qui facit per alium facit per se’. This is a
Latin term. This maxim means that “he who acts through another, acts himself” or in the other
word we can say that “the act of an agent is the act of the principal”. It is regarded as a fundamental
premise of agency of law. For any act authorized by the principal and done by the agent, both of
them are liable. Their liability is joint and several.

The maxim ‘Qui facit per alium facit per se’ is Principal is liable personally for the negligence of
its agent. The fundamental 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 as a result of
the acts, the principal is liable for the damage.

This maxim is applicable in the case H.E. Nasser Abdulla Hussain v. DCIT. The facts of this
case is given below:-

“The assesse was carrying on the activity of breeding of race horses and also racing them in horse
races. During the relevant assessment years, the assesse claimed carry forward of losses under the
head ‘Racing activity’ by resorting to the prescription of section 74A. The Assessing Officer
disallowed the claim on the ground that the assesse himself did not maintain the race horses and
the horses were maintained by a stud farm.

On second appeal in Tribunal and while relying on this maxim the court held that the assesse
owned the horses and these horses were maintained by a stud farm. The assesse paid the due
amount to the firm for the maintenance of race horses. The act of maintenance comprised of the
feeding, brushing and medical examination of horses. It was stated that the assesse could not do
all this work by himself, it was done through others against payment made for the services. The
Tribunal relied on this maxim and held that this is a well-known tenet of law canonized in the
dictum - ‘qui facit per alium, facit per se”.

Second rule of vicarious liability is based on the principle of ‘Respondent Superior’. This is a
Latin term which used in common law. This Latin term ‘respondent superior’ means ‘Let the
master answer’. We can say in simple way that a principal (employer) is responsible for the actions
of his/her/its agent (employee) in the "course of employment." Thus, an agent who signs an
agreement to purchase goods for his employer in the name of the employer can create a binding
contract between the seller and the employer. Another example: if a delivery truck driver
negligently hits a child in the street, the company for which the driver works will be liable for the
injury.

Example of Vicarious liability: -

There are many examples of vicarious liability but there are three main examples who describe
vicarious liability. The main examples of vicarious liability are: - (1) Principal and agent
relationship

(2) Master and servant relationship

(3) Partners relationship

Vicarious Liability with reference to Principal and Agents: -

Where one person authorizes another to commit a tort, the liability of that will not only that
person who commit the tort but who authorized it is also liable. Principle and Agent relationship
is based on the maxim “Qui facit per alium facit per se”. The maxim’s means is “The act of an
agent is the act of the Principle”. For any act authorized by the principle and done by agent, both
are liable. Their liability are joint and several.

In another word we say that an agent is a person who acts in the name of and on behalf of another,
having been given and assumed some degree of authority to do so.
The purpose of principal agent relationship is that A contract to be made by an agent on behalf of
a principal is considered to be the contract of the principal and not that of the agent. It allows the
principal to authorize somebody to carry out her duties, either for a specific purpose (i.e.,
purchasing a house) or generally (i.e., to conduct many transactions). The agency relationship is
usually entered into by informal agreement, but also can occur by formal agreement (in certain
cases, the agency relationship must be specified in writing). The acts must be legal (i.e., principal
cannot hire agent to kill the professor).

Obligation of vicarious liability in principal and agent relationship is that an agent must obey
reasonable instructions given by the Principal. The Agent must not do acts that have not been
expressly or impliedly authorized by the Principal. The Agent must use reasonable care and skill
in performing the duties. Most importantly, the Agent must be loyal to the Principal. The Agent
must refrain from putting himself in a position that would ordinarily encourage a conflict between
the agents own interests and those of the principal (note: one might reflect on the role of certain
Enron executives on outside limited partnerships that did business with Enron in the early 2000s).
The Agent must keep the Principal informed as to all facts that materially affect the agency
relationship1.

There are many cases on Principal and Agent relationship in which Principal is liable for the act
of Agent. Some cases which follows these relationship: -

Lloyd v. Grace, Smith & co. : - Mrs. Lloyd (the plaintiff) who owned two cottage but she was
not satisfied with the income therefore; she approached the office of Grace, Smith& co., a firm of
solicitors, to consult them about the matter of her property. The managing clerk of the company
attended her and advised her to sell the two cottages and invest the money in better way. She was
asked to sign two documents, which were supposed to be sale deeds. In fact, the document got
signed were gift deeds in the name of the managing clerk himself. He then disposed and
misappropriate the proceeds. He had acts solely for his personal benefit and without the knowledge
of his principle.

Grace, Smith & co. is vicariously liable or not for the act his employee. The Principle
is liable for his agent act which was done in the course of employment. Court held that

1
http://www.ruf.rice.edu/~schuler/principal-agent.html
the act of agent in the course of his apparent or ostensible authority. So Principle is
2
liable.

Shyama Devi v. State Bank of India:-The plaintiff’s husband gave some money and cheque to
his friend, who was employee in the State bank of India, for being deposited in the plaintiff’s
account. No proper receipt for the deposits was obtained. The Bank employee misappropriated the
deposits was obtained. In this case Supreme Court that the employee, when he committed the
fraud, was not acting in the scope of bank’s employment but in his private capacity as the
depositor’s friend, therefore, the defendant bank could not be liable for the act of his employee.

In Ormrod v. Crosville Motor Service Ltd.:3 - Defendant, the owner of car, gave his car to his
friend to drive. His car was driven by his friend for him and when car is driven by his friend
collided with a bus. Here court held that car owner was vicarious liable for the act of his friend.

In this case Lord Denning observed that “The law put responsibilities on the owner of a vehicle
who allows it to go road in charge of someone else, no matter who drive it may be his servant, his
friend or anyone else. It’s used wholly or partial work for the owner of vehicle, owner is liable for
the negligence of the driver. Only Owner will escape from the liability when he lends it or hires it
to a third party to be used for purpose in which the owner has no interest or concern.”

In John Doe v. Bennett4: - The Supreme Court of Canada has tackled the thorny issue of when a
church will be vicariously liable for the sexual misconduct of its employees. This case involved
abuse by a parish priest in a Roman Catholic Diocese in Newfoundland against a number of young
boys who were under his charge and care over a thirty-year span. Bennett ultimately admitted to
using various means; including money, alcohol and intimidation to abuse his victims. All of the
abuse occurred while the offender was employed as a parish priest. Here Supreme Court of Canada
held that Church was vicariously liable for the act of his priest.

2
(1912) A.C. 716
3
(1953) 2 ALL E.R. 753:1 W.L.R. 1120.
4
[2004] 1 SCR 436, 2004 SCC 17
Vicarious Liability with reference to Partners: -

Since partners are considered agents of the partnership, a partner’s wrongful act or omission can
bind the partnership if the wrongdoing partner has acted within the ordinary course of the
partnership’s business.

In other words we can say that any partner in the ordinary course of the business of the firm,
committed tort in the name of business. All the other partner are liable for the act of his one
partners.

Partners in a partnership generally are jointly and severally liable for torts charged against the
partnership. Thus, any or all of the partners in a partnership can be sued individually for the entire
amount of the injury caused by the partner.

In other word we can say that vicarious liability is concerned with the responsibility of the firm
to other persons for wrongful acts done by a partner while acting in the ordinary course of the
partnership business or with the authority of his co-partners. At first sight this might seem
something of a contradiction in terms. Partners do not usually agree with each other to commit
wrongful acts. Partners are not normally authorized to engage in wrongful conduct. Indeed, if
vicarious liability of a firm for acts done by a partner acting in the ordinary course of the business
of the firm were confined to acts authorized in every particular, the reach of vicarious liability
would be short indeed. Especially would this be so with dishonesty and other intentional
wrongdoing, as distinct from negligence. Similarly restricted would be the vicarious responsibility
of employers for wrongful acts done by employees in the course of their employment. Like
considerations apply to vicarious liability for employees.

For example, if two lawyers form a general partnership, and one lawyer is liable
for malpractice, then the person injured by the malpractice may sue the partnership, the lawyer
who committed malpractice, and the other lawyer in the partnership. In this situation, the person
who is injured could chose to sue only the lawyer who did not commit malpractice, since that
lawyer is jointly and severally liable for the torts of the other partner acting in the partnership’s
business.
In Hamlyn v. Houston & Co.:5 - 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’s business. In this case court held that both the partners of
the firm were liable for the wrongful act done by one of the partner of this firm.

In Dubai Aluminum Company Ltd. V. Salaam6: - Mr. Salaam was a client of two successive
firms of solicitors, Amhurst Brown Martin & Nicholson and Amhurst Brown Colombotti. Nothing
turns on the distinction between these two firms, and it will be convenient to refer to them simply
as 'the Amhurst firm'. Mr. Salaam's affairs were dealt with mainly by Mr. Amhurst, the senior
partner in the Amhurst firm. Dubai Aluminum claimed that Mr. Amhurst dishonestly assisted in
the fraud. He did not benefit from the fraud, apart from comparatively modest amounts paid to his
firm by way of fees. In addition to suing Mr. Amhurst Dubai Aluminum sued the Amhurst firm,
on the basis that the firm was vicariously liable in respect of some of Mr. Amhurst's activities.

Vicarious Liability with reference to Master and Servant relationship: -

The test of such a relationship is whether the master has the control or the control the servant in
the manner of doing work. A simple illustration is the owner of a motor car employing a driver.
He has in law, the right to control the manner in which the latter drives the car and in fact exercises
it, when it necessary to do so. According to the Supreme Court, the test is whether the act was
done on the owner’s business or that it was proved to have been impliedly authorized by the owner.
The liability of master only arise when two point are fulfil. These points are necceary for rising
the liability of master for the act of servant. These essential points are: -

(1) The tort was committed by the ‘servant’

(2) The servant committed the tort in the ‘course of his employment’

A servant is anyone who works for another individual, the master, with or without pay. The mast
er and servantrelationship only arises when the tasks are performed by the servant under the dire
ction and control of the masterand are subject to the master's knowledge and consent.

Who is Servant?

5
(1903) 1 K.B. 81: 51 W.R. 99: 72 L.J.K.B. 72: 87 L.R. 500.
6
UKHL 48, [2002] 3 WLR 1913
A Servant is a person employed by another to do work under the direction and control of his
master. Master is liable for the act of his servant.

Servant and independent contractor are different. Master is liable only for the act of servant but
master is not liable for the act of independent contractor. Independent contractor do work for
master but master has no control over independent contractor. Independent contractor do work for
master without his direction and control, he do work according to himself.
A master is one who not only prescribes to the workman the end of his work, but directs or at any
moment may direct the means also, or, as it has been put, ‘retains the power of controlling the
work’, a servant is a person subject to the command of his master as to the manner in which he
shall do the work

In other word we say that a servant is an agent who is subject to the control and supervision of his
employer regarding the manner in which the work is to be done. An independent contractor is not
subject to any control. He is his own master and exercises his own discretion.

For example: - I give my car to driver to drive and he negligently knocks down B. I am liable for
the negligent act of my servant. But if I hire a taxi for going airport. On the negligent of the taxi
driver, taxi meets with an accident and injured the person C, master is not liable for the negligent
act of taxi driver. The taxi driver alone liable for his act.

In Mersey Docks and Harbor Board v. Coggins & Criffiths (Liverpool) ltd.:- a harbor board,
who owned a number of mobile cranes each driven by a skilled driver, as a regular part of their
business, let out a mobile crane along with a driver to certain stevedores for loading a ship .Due to
the negligence of the driver, while loading a ship, X was injured. The stevedores were not held
liable because they had simply the power to tell the driver what particular cargo was to be operated.

In Morgan v. Incorporated central council7: - the plaintiff, while he was on a lawful visit to the
defendant’s premise, fell down from an open lift shaft and got injured. The defendants had
entrusted the job of keeping the lift safe and in proper order to certain independent contractors.
Court was held that for this act of negligence on the part of independent contractors in not keeping
the lift in safe condition, so, the defendant could not liable for the act of independent contractor.

7
(1936) 1 ALL E.R. 404.
In Devinder Singh v. Mangal Singh8:-Devinder Singh entrusted his truck for repair to a
workshop. When the owner of the workshop driven the truck, there was an accident happens which
result the cyclist, Mangal Singh was injured. Then Mangal Singh filed a case against the owner of
truck. Here Court held that owner of the workshop was an independent contractor and not the
servant of the owner of the truck.so, owner of the truck was not vicariously liable for the negligence
of the owner of the truck.

In the master and servant relationship there are: -

(a) Act authorized by the master either express or implied it: -


If act is authorized by master to his servant either act in the course of employment or the act is
implied it. If any servant do wrongful act in the course of his employment then master is
liable for this. For example, a master send his servant to buy vegetables from market and
when servant is return back to home from market, on the way servant fight with someone
and injured the third person, master is liable for the act of the servant.

(b) Within the course of employment: -

Master is liable for the negligent act done by his servant in the course of employment. Master
cannot say that servant do not follow his order and doing some act which was prohibited by master.
If servant do any work which was prohibited or not allowed by his master then master is also liable
for the negligent act of the servant.

When servant in the course of the performance of his duties as such, commits a fraud, theft,
mistake, negligence act done by servant, the liability of this arise on master or master is liable for
this act done by his servant.

In Century Insurance v Northern Ireland road transport board: - Owner of transport company order his
servant that driver go to deliver petrol and no smoking and not use anything which cause fire in
the course of employment. One day, a driver go to petrol pump for delivering when he do his work
then he lighting a match to light the cigrates and throw on the floor and there was a explosion
happen. Here court held that owner is liable for the act of driver.

8
A.I.R. 1981 P & H 53.
In Poland v. Parr & sons:9 - A carter suspected on mistake but on reasonable grounds that some boys
were Pilfering sugar from his employer’s wagon. To protect his employer property from theft, he
struck one of the boy. The boy fell and a wagon was run over his leg and result of this boy lost his
leg. Court stated that act which done by servant in the course of employment. So, Master was liable
for the act of his servant.

In Williams v. Jones: - The defendant servant, a carpenter, was required to do his work in the
plaintiff’s shed. While engage in his work, the carpenter lighted his pipe negligently and same set
fire to the plaintiff’s shed. Court stated that defendant was not liable for negligent act of the
carpenters. In this case, Mellor and Blackburn JJ stated that lighting the pipe negligently was a
wrongful way of performance of his duties. Defendant was not liable.

(c) Master and Servant relationship in hospital authorities: - In this liability hospital or owner of
hospital (Government and private) are liable for the act done by his/her doctors and other staff of
hospital. Such as negligence of doctors in perform of operation and his duties.

In Cassidy v. Ministry of health10: - the hospital authorities were held liable when, due to the negligence

of the house surgeon and other staff, during post-operation treatment, the plaintiff’s hand was
rendered useless.

Referring to the liability of the authorities, Denning L.J. observed:

“It is no answer for them (hospital authorities) to say that their staff are professional
men and women who do not tolerate any interference by their lay masters in the way they do their work.
The doctor treat a patient in the Walton hospital can say equally with the ship’s captain who sails his ship
from Liverpool, and with the crane driver who works his crane in the docks, “I take no orders from
anybody.” That “sturdy answer” as Lord Simonds described it, in each case that he is skilled man who
knows his work and will carry it out in his own way, but it does not mean that the authorities who employ
him are not liable for his negligence.”

In A.H. Khodwa v. State of Maharashtra11: - The doctor in a Government hospital, while performing
sterilization operation of a lady patient, left a mob inside the abdomen of the patient. The result of
this is the lady developed peritonitis and that resulted in her death. The Court held that running a

9
(1927) 1 K.B. 23.
10
(1951) 1 ALL E.R. 574.
11
1996 ACJ 505 (S.C.).
hospital was held to be a non-sovereign function and the state was held vicariously liable for the
same.

In the Hillyer v. St. Bartholomew’s Hospital12: - In this case Court held that the hospital authorities were

held not to be vicariously liable for the negligence of the professional staff involving professional
care and skill, because they lacked the power of control over them. That position no more holds
good and now the hospital authorities are liable for the profession negligence of their staff
including radiographers, resident house surgeon, assistant medical officers and nurses and part-
time anesthetists.

Act done outside the scope of employment: -

If any act done by servant but when servant do this act by mistake or negligently but not in course
of employment then master is not liable for the act of the servant.

When the wrongful act by the servant has not been done in the ordinary course of his master’s
business, the act is obviously outside the course the course of employment. Such act will not come
within the course of employment merely because the servant would not have had the opportunity
to commit the wrong but for being in the master services.

In other word we can say that when a servant does any act which is not in the course of master’s
business, the same is deemed to be outside the course of employment. If act is in the course of
employment but some strict rules which say not do this and act done by servant then master is not
liable for the act of his servant.

In Storey v. Ashton case13: - A Carman, when he come back to his master office, on the way he was
come back, another employees of his master induced him to turn in another direction for picking
up something for that employee. When he was going in the new direction than an accident was
happened and plaintiff was injured. Plaintiff claim compensation from employee’s master. In this
case court stated that when employee take new direction which was given by his master, so, master
was not liable for the act done by his employee. If accident happened when Carman going home
on roundabout way of home, then master was liable.

12
(1909) 2 K.B. 820.
13
(1869) L.R. 4 Q.B. 476.
In Beard v. London General Omnibus Co.14: - a driver of the bus went to take his dinner at the end of
the journey. During the absence of the driver, the conductor of the bus drove the bus in order to
turn it round to make it ready for the next journey and negligently caused an accident and plaintiff
injured. HERE Court stated that the master’s liability arises only when both the condition are fulfil
i.e., the wrongdoer is his servant and the servant while doing the wrongful act was acting in the
course of the employment. Here first condition was fulfil that conductor was the employee of the
bus owner but second condition was not fulfil because accident was happens by the negligent act
of the conductor and driving was not the job to assigned the conductor. So, owner of the bus was
liable for the act of his employment.

In Twine v. Beans Express Ltd.15: - Defendant provided a commercial van and a driver for the use of
bank. The defendants had put two notice on the van. In one notice stated that no stranger person
not allowed to take lift in the vehicle and in second notice stated that driver had been instructed
not to allow unauthorized person in the van. Defendant not liable, servant not follow his
instruction. One day Driver of the van gave lift to a strange person. An accident happens and result
of that stranger died. Accident happen for the negligent act of the driver. In this case Court stated
that Defendant was not liable for negligent act of his driver. Driver do this thing in outside the
scope of the employment.

In Sitaram v. Santanu Prasad:16 - Sitaram, who was the owner of a car, entrusted the same to
Mohammad yakub for plying it as a taxi in Ahmedabad. Mohammed employed a cleaner. He
trained the cleaner in driving the taxi. One day He gave taxi to cleaner for taking the driving test
and obtaining the driver’s license. While taking the test, an accident happen by negligently act of
the cleaner and result of the accident was that plaintiff was serious injured. Here, Court held that
owner neither permitted the cleaner to drive the taxi for test nor cleaner was employee of the owner
of the car. Owner of the car was not liable for the act of cleaner.

The Doctrine of common employment: -

The doctrine of common employment means that one servant of the master due to his negligence
injured his fellow servant or another servant of his master. Then master’s liability may be arise or

14
(1900) 2 Q.B. 530.
15
(1946) 1 ALL E.R. 425.
16
A.I.R. 1996 S.C. 1697
not for the wrongful act of his servant. This doctrine are applicable in many countries such as
England, India etc.

Position in England: - this rule was first applied in 1837 in England in the case Priestley v. Fowler
and this rule developed in 1850 in Hutchinston v. York, New castle and Berwick Rail Co.

This rule ‘doctrine of common employment’ in England is was an Exception to the rule that master
is Liable for the wrong committed by his servant.

This doctrine was based upon an implied contract of service that the servant that the servant agreed
to run risks incident to the employment, including the risks of negligence on the part of his fellow
employee.

For example: - If A was injured by negligence fox's servant, Y and both A and Y were servant of
X, then under this doctrine A could not mark X-vicariously liable for damages suffered by A.
Defense available to X, was A and Y were in common employment

There are four essentials point in the doctrine of common employment are: -

(1) Both of them must be the servants of the same master,

(2) The injuries must be associated or resulted in the course of employment,

(3) The injuries must be as the results of the negligence of his fellow servants,

(4) The servant must has been suffered the damages.

In the Priestley v. Fowler: - The Plaintiff, Who was the Defendant servant, and injured at the thigh
due to breaking down of an overloaded carriage in the charge of another servant of the defendant.
Since both the person wrongdoer and injured person were the servant of the same master. In this
case Court stated that Defendant was held not liable under the doctrine of common employment.

The doctrine of common employment was curtailed by various statutory Provision. In 1897,
Workmen’s compensation act come and amended in 1925, In this act employer was bound to pay
compensation to the personal injury to his servant caused by an accident and accident occur in the
course of employment. In 1946, National Insurance Act was passed.

In 1948, Law reform (personal injuries) act came and In Wilson and Clyde Coal Co. v. English
and Radcliffe v. Ribble Motor Services Ltd. From this cases the doctrine of common employment
was abolished and then master is liable for the negligent act of his servant and injured his another
servant.

Exception to the Doctrine of Common Employment: - There were some exception in the doctrine of common
employment in England such as: -

(1) Duty to provide proper appliances,

(2) Duty to provide competent staff,

(3) Employer must check that the system is complied with.

Position in India: - In India, the doctrine of common employment available. In Secretary of State
v. Rukmini Bai case doctrine of common employment was applicable in India. There was a another
case Governor General in Council v. Constance Zena Wells in this case Privy council held that the
Doctrine of Common Employment was applicable in India. In this case Privy Council held that
defense of common employment was available to the defendant and the plaintiff’s claim for
compensation was dismissed.

There were many difficulty in Privy Council decision and then Constance Zena Well’s case which
still recognized the defense in common employment in both India and England. But after the
amendment in section 3 of Employer’s Liability act, 1938 amendment in this section in 1951 and
the defense of common employment also abolished in India.

In Kalpana Mandal v. State of Orissa17: - The husband of the petitioner, aged 35 years, an able bodied
youth, earning his livelihood by working in an ice factory, was killed in police firing while he was
travelling as passenger in a bus. This is a irresponsible act of the police, in aimlessly firing at the
bus. Here, Court held that State was vicariously liable for the act of Police and pay compensation
to the victims.

Vicarious liability of the state for his employee: -

In this type of liability state is liable for the negligent act of his employee. Vicarious liability of
state is not same in India and England.

17
A.I.R. 2007 Ori. 94.
Position in England: - In common Law, Crown could not be sued in tort either for wrong actually
authorized by it or committed by its servants, in course of their employment.

In England, the individual wrongdoer was personally liable for their negligent act and he could not
take the defense of orders of the Crown, or state necessity. The immunity of the Crown from
liability did not exempt the servant from liability.

Position in India: - In India, there is no statutory provision like England for the discharge of state
liability toward their servant negligent act. In England, there is a provision like Crown Proceeding
Act, 1947 in which state is not liable for the act of his servant. In India, there is no provision like
this. In India, Article 300 of Constitution of India is that The Government of India may sue and be
sued by the name of union of India and Government of a State may sue and be sued by the name
of the State.

In another word we can say that under the article 300 of Constitution of India , the Union of India
and the State Government can sue and be sued in the like cases as the Dominion of India and the
corresponding India n States might have sued or been sued if the constitution had not been enacted.

Article 300, provides that the Union of India and the States are juristic persons for the purpose of
suit or proceeding.

In India, Government of India is liable for the act of his servants and pay compensation to the
plaintiff for the negligent act of his servant. If injury is happen when there is a sovereign function
then state is not liable for the act of his servant.

For example: - Mr. A was trying to cross the road, when he was in the middle of the road. A truck
of Indian army was come and the negligent act of the driver, Mr. A was injured. This road was
near the Pakistan border. In this type of situation, Government of India is not liable to
compensation.

Conclusion

Employer is liable for the negligent act of his servant and liable for the compensation. This is
brought because injured party get more benefit. In the concept of vicarious liability, anyone who
in the control of other then injured party claim damages from servant or master or both. This is a
term in which any person has no fault but he is liable to pay compensation for the negligent act of
the servant. Master is not escaped his liability for paying compensation to injured party for saying
that he do not do this act and he is no control over his servant when he do this act. Master is only
escaped from his liability only when act done by servant is not in the course of employment and
servant do this act in personal manner.

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Dr. R.K. Bangia, Law of Torts, Allahabad Law Agency 2011