VICARIOUS LIABILITY: A STUDY

1.6 Law of Torts

Submitted By

Subham Das

UID: SM0117051

B.A. L.L.B. 1st year, 1st semester

Faculty-in-charge

Ms. Mounmi Borgohain

National Law University, Assam

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TABLE OF CONTENTS

1. Introduction……………………………………………………………..3-4
1.1 Literature Review…………………………………………………..4
1.2 Scope and Objectives………………………………………………5
1.3 Research Questions…………………………………………………5
1.4 Research Methodology……………………………………………..5
2. Vicarious Liability………………………………………………………6
3. Kinds of Vicarious Liability…………………………..………………..7
3.1 Principal and Agent……………………………………….……….7-8
3.2 Master and Servant………………………………………………...8-9
3.3 Employer and Independent Contractor……………………..……...9-10
3.4 Partners…………………………………………………………….10
4. Exceptions of Vicarious Liability……..………………………………..11
4.1. Acts Outside the Course of Employment…………………………..11
4.2. Giving Lift to Unauthorized Third Party …………………………..11-12
4.3. Hospital Cases………………………………………………………12
5. Conclusion……………………………………………………………….13
6. Bibliography……………………………………………………………..14

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 1. Introduction
Tort is an act or omission that gives rise to injury or harm to another and amounts to a civil
wrong that causes someone else to suffer loss or harm resulting in tortious liability for the
person who commits the tortious act. The person who commits the tort is called the
tortfeasor.

“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages”-
Winfield1

The essentials of a tort are-

 There must be some act or omission on part of the defendant,

and
 The act or omission should result in legal damage (injuria), i.e., violation of a legal
right vested in the plaintiff2

There is a distinction between a crime and a tort A tort is a private wrong, whereas a crime is
a public wrong. A tort is an infringement or privation of the civil rights which belong to
individuals, considered merely as individuals, while crime is a public wrong. Crime is a
breach and violation of the public rights and duties due to the whole community, in its social
aggregate capacity. An offence, which is punishable as a crime, may also be treated as a tort
if it is shown that it has caused special injury to an individual, and gives rise to a civil action,
if the aggrieved individual proves that the injury suffered by him is distinct from that suffered
by the general public.3 In tort the remedies is given as a compensation but no imprisonment
but in crime there can be imprisonment as punishment.

There are various torts like battery, assault, negligence, trespass, defamation, nuisance,
vicarious liability. This project will mainly focus on vicarious liability.

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

1
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013
2
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013
3
http://www.shareyouressays.com/knowledge/what-is-the-difference-between-tort-and-crime-explained/115781

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or omissions of its employees, provided it can be shown that they took place in the course of
their employment.4

There are various forms of vicarious liability like principal agent, master servant, partners

1.1 Literature Review

 Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013

This book provides a detailed account into the vicarious liability. It also highlights the
various forms of vicarious liability like negligence, vicarious liability, etc and what are
the various exceptions in vicarious liability. This book has helped the researcher to fulfil
the objectives of the project.

 Ratanlal & Dhirajlal, THE LAW OF TORTS, Updated 26th Edition, 2016

This book provides a detailed account into the vicarious liability. It also highlights the
various forms of vicarious liability like negligence, vicarious liability, etc and what
are the various exceptions in vicarious liability. This book has helped the researcher to
fulfil the objectives of the project.

 Preeti Singh, LEGAL SERVICES INDIA, VICARIOUS LIABILITY

In this article the author describes vicarious liability and its various kinds like
negligence, vicarious liability, etc concisely, the article also states various exceptions
of vicarious liability. The article has helped the researcher to fulfil the objectives of
the project.

1.2 Scope and Objectives

4
http://www.acas.org.uk/index.aspx?articleid=3715

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Scope

This project shall focus on vicarious liability, try to understand the concept of vicarious
liability, and understand the various kinds of vicarious liability. The project shall also try to
analyse the exceptions present in vicarious liability.

Objectives

 To try and understand the concept of vicarious liability.

 To understand the various kinds of vicarious liability.
 To analyze the exceptions of vicarious liability.

1.3 Research Questions

 What is the concept of vicarious liability?

 What are the various kinds of vicarious liability?
 What are the exceptions in vicarious liability?

1.4 Research Methodology

In this research work, the Doctrinal Method of Explanatory Research Design has been
employed for conducing the research. Only secondary sources such as books, articles and
journals have been used for the collection of information for the research work.

2. Vicarious Liability

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Generally, a person is liable for his own wrongful acts and one does not incur any liability for
the acts done by others. In certain cases, however, vicarious liability, that is the liability of
one person for the act of another person, may arise. In order that the liability of A for the act
done by B can arise, it is necessary that there should be certain kind of relationship between
A and B, and the wrongful act should be, in certain way, connected with that relationship.
The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.5

To constitute vicarious liability there are various essentials that need to be fulfilled
 There must be a relationship of some kind
 The wrongful act must be related to the relationship in a certain way
 The wrong has been done within the course of employment
Vicarious liability imposes liability on one person for a tortious act committed by another.
There are a number of contexts in which this arises. Under the doctrine of respondeat
superior, an employer is liable for an employee's torts, including intentional torts, if the
employee was acting within the scope of employment. To establish that the employee's
conduct was within the scope of employment: (1) the conduct must have occurred
substantially within the time and space limits authorized by the employment; (2) the
employee must have been motivated, at least partially, by a purpose to serve the employer;
and (3) the act must have been of a kind that the employee was hired to perform.6

In order to establish liability there are some questions that can be asked

 Was a tort committed?

 Was the tortfeasor an employee?
 Was the employ acting in the course of the employment when the tort was
committed?7

3. Kinds of Vicarious Liability

5
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013
6
https://www.inc.com/articles/1999/11/15396.html
7
https://www.lawteacher.net/PDF/tort-law/Vicarious%20Liability.pdf

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There are various kinds of vicarious liability which are Principal and Agent, Master and
Servant, Employer and Independent Contractor, Company and Director, Firm and Partner,
Company and Director, Firm and Partner, Guardian and Ward. This project will mainly focus
on vicarious liability associated with Principal and Agent, Master and Servant, Employer,
Independent Contractor and Partners relationships.

3.1 Principal and Agent

In the case of Principal Agent relationship, the master is liable for the acts committed by the
agent but for the master to be vicariously liable the act of the agent has to be within the
course of employment and also within the scope of authority or the actual control of the
principal. The legal maxim of ‘Qui facit per alium facit per se’ states that the act of an
agent is the act of the principal.

Courts sometime distinguish between an employee's "detour" or "frolic". For instance, an

employer will be held liable if it is shown that the employee had gone on a mere detour in
carrying out their duties, whereas an employee acting in his or her own right rather than on
the employer's business is undertaking a "frolic" and will not subject the employer to liability.
The owner of an automobile can be held vicariously liable for negligence committed by a
person to whom the car has been loaned, as if the owner was a principal and the driver his or
her agent, if the driver is using the car primarily for the purpose of performing a task for the
owner.8

This means that, in general, the principal can only be held liable for the agent's acts when all
four of these factors are met:

 The agent was employed to perform that particular type of act

 The agent's act occurred at an authorized place and during an authorized time of
employment
 The agent's act was inspired by an intent to assist the principal
 The agent's method could have been anticipated by the principal9

8
https://www.lawteacher.net/free-law-essays/commercial-law/vicarious-liability-of-principal-for-acts-of-agent-
commercial-law-essay.php
9
http://study.com/academy/lesson/tort-liability-in-agency-relationships-definition-law.html

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In the case of Lloyd v Grace, Smith & Co a solicitors’ clerk fraudulently induced a
conveyance from a client, then disposing of her house for his own personal benefit, the
judgement was passed that since the agent was acting in the course of his apparent authority
the principal was liable for the fraud.
In the case of Ormrod v. Crossville Motor Service Ltd. The owner of a car asked his friend to
drive his car. While the car was being so driven by the friend, it collided with a bus. The
owner of the car was held liable.10

3.2 Master and Servant

If a servant does a wrongful act the master is also held liable if the act is committed in the
course of employment, but the servant is also liable. The liability is joint and several.

A servant is employed under a contract of service whereas an independent contractor is

engaged under a contract for services.
.
For the liability of the master to arise, the following two essentials are to be present :
1) The tort was committed by the servant
2) The servant committed the tort within the course of employment11

A servant is a person employed by another to do work under the directions and control of his
master. As a general rule, master is liable for the tort of his servant but he is not liable for the
tort of an independent contractor. It, therefore, becomes essential to distinguish between the
two regarding the manner in which the work is to be done.12
In Limpus v. London general omnibus Co., The driver of an omnibus, seeking to disturb the
omnibus of another company, drove his own across the path of another. His employers had
furnished him and other drivers with a card saying they ‘must not on any account race with or
obstruct another omnibus.’ Baron Martin had directed the jury that, if the defendant’s driver
did it for the purposes of his employer, the defendants were liable: but if it was an act of his
own, and in order to affect a purpose of his own, the defendants were not responsible. The
jury found for the plaintiff.
10
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013
11
Preeti Singh, LEGAL SERVICES INDIA, VICARIOUS LIABILITY
12
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013

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It was held that the employer was liable for the ensuing accident despite written instructions
to the driver to exercise care. The employer was liable because the injury resulted from an act
done by the driver in the course of his service and for his master’s purposes; it was not done
by the servant for his own purposes, but for his master’s purposes.13

3.3 Employer and Independent Contractor

An Independent Contractor is different from a servant in the ways that in a general rule the
master can fire a servant anytime he pleases but it is not in the case of the independent
contractor. While hiring a servant he is employed under the contract for service whereas the
independent contractor is employed under the contact for service. The contract for service can
be defined as the employer can only say what to do but not how to do the job but in case of
contract of service the master has the authority to say both what to do and also how to do the
job.
Normally the employer is not liable for the acts of the independent contractor unlike in the
case of master servant where the master is vicariously liable for the acts of the servant.

An independent contractor is one who provides goods or services to another unit. Unlike

an employee, an independent contractor does not work regularly for an employer but works
as and when required, during which time he or she may be subject to law of agency.
Independent contractors are usually paid on a irregular basis.
But there are some important exceptions to this rule in which independent contractor will not
held liable :-
(I) Where the thing contracted to be done is itself unlawful.
(II)Where employer retains his control over the contractor personally interferes in his work.
(III) Where there is an implied warranty by the employer, which he’ll be liable for the work
done by independent contractor.
(IV) Where employer knows the facts that independent contractor is incompetent to do that
work.
(V) Where legal or statutory duty is imposed on the employer, he is liable for any injury that
arises to others in consequence of its having been negligently performed by the contractor.

13
http://swarb.co.uk/limpus-v-london-general-omnibus-company-cexc-23-jun-1862/

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(VI) Where the work contracted to be done is form its nature likely to cause danger to others,
in such cases there is a duty on the part of the employer to take all reasonable precautions
against such danger, and if the contractor does not take these precautions.14

Some cases where the employer was held liable for the acts of the independent contractor are-

In Rylands v Fletcher the employer could not escape the liability for the damage caused to the
plaintiff, when the escape of water from a reservoir got which was constructed by the
defendant from an independent contractor, flooded the plaintiff’s coalmine.15
In Maganbhai v. Ishwarbhai, the chief trustee of the properties of a temple called upon an
electric contractor to illegally divert the electric supply given for agricultural purpose, to the
temple for one month, for providing facility of lighting and mike in the temple. The job was
executed in a palpably obvious hazardous manner, and without informing the electricity
board. After about a fortnight, the service line was snapped and the agriculturist, who was
working in his field, got injured by electric current. It was held that the trustee, who got the
hazardous job done, as well as the owner of the field, from whose meter and with whose
knowledge such connection was taken, were liable.16

3.4 Partners

The relationship as between partners is that of principal and agent. The rules of the law of
agency apply in case of their liability also. For the tort committed by any partner in the
ordinary course of the business of the firm all the other partners are liable therefor to the
same extent as the guilty partner. The liability of each partner 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. It was held that both the partners of the firm were liable for this
wrongful act (including breach of contract) committed by only one of them.17

14
http://shipraaroradhiman1.blogspot.in/2014/07/vicarious-liability.html
15
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013
16
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013
17
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013

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 4. Exceptions of Vicarious Liability

As opposed to the normal norm of the employer or master being vicariously liable for the acts
of the employee or servant there are some exceptions where the master is not held liable.

4.1 Acts Outside the Course of Employment

When the employee commits a wrongful act outside the course of employment which means
outside the authority of the master the master can’t be vicariously held liable for the acts of
the employee.

In Rajasthan state road corporation v. K.N. Kothari, it has been held by the supreme court
that the transfer of effective control over a servant, would make the transferee of the vechicle
liable for vicarious liability.
In this case, the RSRTC hired a bus and a driver for running a bus on a specified route. The
RSRTC engaged a conductor, who managed the bus, collected fare from passengers and also
exercised control over the driver. It was held that for an accident caused by the driver, the
hirer (RSRTC) was vicariously liable, notwithstanding the fact that the driver continued to be
on the payroll of the original owner.18

4.2 Giving Lift to Unauthorized Third Party

If an employee within the course of employment while driving a vehicle decided to give a lift
to some third party unknown to the employer and some wrongful act gets committed in that
time the employer is not held liable for it as the employer did not give authority for the
unauthorised lift given to the third party as it is considered to be committed outside the course
of employment.

In Conway v. George Wimpey and Co. Ltd., A number of contractors were employed in work
at the Heathrow Airport. The defendant company had instituted a bus service for their own
employees and the driver was prohibited by the defendant company from giving lifts to
anyone other than their own employees. 
Held: The claim failed. The act of the driver in giving a lift to the plaintiff was outside the
18
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013

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scope of his employment. It was not merely a wrongful mode of performing an act of the
class which the driver was employed to perform, but was the performance of an act which he
was not employed to perform.
Asquith LJ said: ‘I should hold that taking men not employed by the defendants on to the
vehicle was not merely a wrongful mode of performing the act of the class this driver was
employed to perform, but was the performance of an act of a class ‘which he was not
employed to perform at all.19

4.3 Hospital Cases

In hospitals some cases are solely committed due to the negligence of the doctors or staff
employed in the hospital and the hospital authority can in no way foresee or have a hand in
the wrongful act committed by its employee and hence in those cases the hospital authorities
are not held liable for the acts of the employee.

Examples of such case are mentioned below

In Hillyer v. Bartholomew’s Hospital, 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 professional negligence of their stuff including
radiographers, resident house surgeons, assistant medical officers and nurses and part time
anaesthetists.
In Cassidy v. Ministry of health, the hospital authorities were held liable where, due to the
negligence of the house surgeon and other stuff, during post operation treatment, the
plaintiff’s hand was rendered useless.20

5. Conclusion

19
http://swarb.co.uk/conway-v-george-wimpey-and-co-ltd-ca-1951/
20
Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013

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After the completion of the research project by the researcher the researcher can conclude
that in vicarious liability the master or employer is held liable to pay compensation to the
injured party for the wrongful acts committed by the employee or servant or agent. There are
certain essentials that need to be fulfilled in order to hold someone vicariously liable for
one’s acts.
There are various kinds of vicarious liability but the researcher has mainly focused on
Principal and Agent, Master and Servant, Employer and Independent Contractor, and,
Partners relationships in the current research project. It can be concluded that even though
normally the master is held liable for the acts of his employee there are certain exceptions in
the field of law where the master is not held liable and the actual culprit i.e. the employee is
held liable like in hospital cases, unauthorised lifts given to third parties and also in the cases
of acts committed by the employee outside the course of employment.

6. Bibliography

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 Dr. R.K. Bangia, LAW OF TORTS, Twenty Third Edition, 2013
 Ratanlal & Dhirajlal, THE LAW OF TORTS, Updated 26th Edition, 2016
 Preeti Singh, LEGAL SERVICES INDIA, VICARIOUS LIABILITY

 http://www.shareyouressays.com/knowledge/what-is-the-difference-between-tort-and-
crime-explained/115781
 http://www.acas.org.uk/index.aspx?articleid=3715
 https://www.inc.com/articles/1999/11/15396.html
 https://www.lawteacher.net/PDF/tort-law/Vicarious%20Liability.pdf
 https://www.lawteacher.net/free-law-essays/commercial-law/vicarious-liability-of-
principal-for-acts-of-agent-commercial-law-essay.php
 http://study.com/academy/lesson/tort-liability-in-agency-relationships-definition-
law.html
 http://swarb.co.uk/limpus-v-london-general-omnibus-company-cexc-23-jun-1862/
 http://shipraaroradhiman1.blogspot.in/2014/07/vicarious-liability.html
 http://swarb.co.uk/conway-v-george-wimpey-and-co-ltd-ca-1951/

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