Subject: Torts Law

Topic: Vicarious Liability: Is application of

Vicarious Liability justified?

Prof. Twinkle Maheshwari

Name: Aryan Mandani
 TORTS INTERIM REPORT
FYBBA-D
ARYAN MANDANI
Vicarious Liability: Is application of Vicarious Liability Justified?

INTRODUCTION:
Vicarious liability is the liability assigned or associated to the principal or the employer for
the wrongful acts of his agent or employee performed in the course of the employment.
Vicarious liability also known as “Respondeat superior” (Latin term), which means holding
someone else liable for the actions of others.
Vicarious liability can be traced back to 17th century in English law. In present-day world the
term Master-servant is quite common in the legal fraternity due to the increase in number of
people in the working class which leads to an increase in the number of instances where this
law is applied, there are many factors that determine the liability of the master like course of
employment, instructions of the owner and the main factor is whether there is a direct relation
between the wrongdoer and the master.
AIM:
Prior to 1947 the crown could not be sued as it was mentioned under the English law “The
King can do no wrong” but later an act was introduced, The Crown Proceedings Act 1947, it
stated that the crown could be sued like any other natural person for the acts of its servants.
Same way in India we had Article 300 introduced which stated that the government can be
held liable for the acts of its servants, so here a question arises is it justified to held the
master/employer liable for the wrongful acts of its servant?
This research paper aims to analyse the master-servant relationship and whether is it justified
to make the master liable for the acts of its servant.
RESEARCH QUESTIONS:
The research paper aims to answer the following questions:
Is it necessary to consider more factors while applying vicarious liability other than
currently determined in India?
After analysing Kangana Ranaut v. Municipal Corporation of Greater Mumbai and
Others, is the outcome under vicarious liability condone?
Is application of vicarious liability justified, is it necessary to be applied?
RESEARCH OBJECTIVES:
 To read and analyse the position of an employee/servant in terms of his
Employer/Master.
 To determine the necessary factors and whether a change is required or not while
analysing vicarious liability.
 To review certain antecedent cases and judgements related to vicarious liability
  To provide suggestions or changes that can be upheld and be considered for vicarious
liability.
 To understand the justification of applicability of vicarious liability.

RESEARCH METHODOLOGY:
The writer has used ‘Primary research’ method for this research paper.
The writer has undertaken this form of research to have a comprehensive understanding of
the topic.
Here is a comprehensive understanding of the method used:
 Initially all the major acts and laws will be studied and analysed.
 Then, all important antecedent judgments will be analysed.
 Then, as going on field and obtaining opinions from legal representatives is not
possible so the writer will try to obtain responses from an online sheet that will be
filled up by the representative.
 Further these opinions and answers will be reviewed and analysed to arrive at a
conclusion.
 Lastly provide and recommend suitable suggestions that could adopted or applied.
This will be the entire process to proceed with the research paper.

INTRODUCTION:
Vicarious liability is the liability assigned or associated with the principal or the employer for
the wrongful acts of his agent or employee performed in the course of the employment. It is a
strict and secondary liability that arises under common law. In a broader sense, it refers to the
responsibility of a third party with the "right and ability of control" towards the violator's
activities. Vicarious liability, also known as "Respondeat superior" (Latin term), which
means holding someone else liable for the actions of others.
Vicarious liability can be traced back to the 17th century in English law. In the present-day
world, the term Master-servant is quite common in the legal fraternity due to the increase in
the number of people in the working class which leads to an increase in the number of
instances where this law is applied, and many factors determine the liability of the master like
the course of employment, instructions of the owner and the main factor is whether there is a
direct relation between the wrongdoer and the master.
In this paper, we will determine and analyze vicarious liability's applicability in different
cases and the factors necessary to determine them, whether they suffice or not and whether
they are justified or not.
THE CROWN PROCEEDINGS ACT, 1947:
The Crown Proceedings Act is the act that was passes in the Parliament of the United
Kingdom which allowed, for the first time, civil actions against the crown, similarly against
any other party.1 This act was the initial instance when the concept of Vicarious Liability
arose.
WHAT DID THE ACT MENTION?
Before this act was introduced there was prevalent maxim “The King can do no wrong” due
to which the crown could not be sued. As early as 13 th century, it was said that king is not
answerable to anyone but later in 16th century a statutory act was introduced, Petition of
Rights Act,2 it was revoked after the implementation of The Crown Proceedings Act.
As the name implies the act explains the procedure relating to civil proceedings by and
against the crown. Section 1 of the act states that previously all petitions that could arise
under the Petition of Rights Act can be brought directly in the courts against any defendant.
Section 2 of the act states that the crown is liable as it were a natural person under the
following circumstances:
Torts committed by its servants or agents
Common law duties of an employer towards its agent and servants
Common law duties as an occupier or owner of a property.
Furthermore, Section 3 explains the protection of patents, design rights, trade marks that are
registered and copy rights from breach of the crown servants.3
The Act was needed during that era as many servants of the crown got away with their crimes
due to the undue advantage that the Crown possessed.
FACTORS AFFECTING VICARIOUS LIABILITY AND CHANGES THAT CAN BE
BROUGHT TO THE CURRENT FRAME WORK:
Currently, in India, there are three significant factors that determine whether the
employer/master is liable or not for the acts of their employee/servant, which are:

1. There must be a relation of a certain kind.

2. A tort should be committed.
3. The wrong committed should be during the course of employment.
These are the three essentials that are required to establish vicarious liability, but there can be
other sides to it.4

1
The Crown Proceedings Act, 1947 (c. 44).
2
Petitions of Rights Act, 1860 (23 & 24 Vict., c.34): It was an act that codified and simplified the process of
obtaining a petition of right, it acted as an alternative remedy.
3
Hogg, P.W. Melbourne University Law Review, Vol. 7, Issue 3(April 1970).
4
Preetisingh, Vicarious Liability in India, Legal Service India,
http://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html
To evaluate other aspects, we spoke with Adv. Nitin Kaushik to further understand and
evaluate the factors. He says that Vicarious liability acts as a tool to hold another person
liable. Further, he said that one of the most crucial aspect is Intention. Adv. Kaushik said that
Intention of the wrongdoer plays a crucial role as it may help the master or the employer to
evade vicarious liability as the general rule is that master is not liable for the acts, which are
criminal in nature unless he has ordered or permitted or authorized to perform such an act. He
further said that in the practical world, Intention is used to evade vicarious liability and so the
facts of the case should be carefully scrutinized bearing in mind the object sought to achieve.

In my view after assessing the current situation in workplace, we should promote a safe
working environment and hence rules and laws regarding vicarious liability with respect to
sexual harassment or sexual advances at workplace should be afflicted due to which a safer
place would be created for a woman in our country. We have Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act.5 However, this Act does not speak
about Vicarious liability, and it is essential, because if the leader or head of the organization
is aware and stringent about sexual advances or sexual harassment, then it will have a
significant effect in curbing such instances. An example of this would be Gayathri
Balaswamy v. M/s ISG Novasoft Technologies Ltd.6 In this case, a complaint was filed
against the company because of sexual harassment that had occurred to an employee of the
firm by an employee itself and a judgement was passed wherein the company was liable to
compensate the woman as they failed to provide proper redressal.

KANGANA RANAUT V. MUNCIPAL CORPORATION OF GREATER MUMBAI

AND OTHERS:
Basic Facts of the case:
Kangana Ranaut was initially served a notice by the Brihanmumbai Municipal Corporation
(BMC) for removing a part of her construction which were unauthorised as some alterations
were done without taking due permissions from corporations. Later a stay order was given by
the court for not demolishing here property but after a few days her property was partially
demolished due to which she filed a case against the BMC and The State government and
Shiv Sena (different parties to the case). The case against BMC was for demolition her
property even thought there was a stay order secondly against the state under Vicarious
liability and lastly against Shiv sena for misuse of power.
Judgement passed:
A division of bench Justices R.I. Chagla and S.J. Kathawalla have passed a judgement to
quash and set aside the order by Brihanmumbai Municipal Corporation (BMC) to demolish
actor Kangana Ranaut’ s property. The bench also said that they have come to a clear
5
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14 of
2013.
6
Gayathri Balaswamy v. M/s ISG Novasoft Technologies Ltd, 2014.
conclusion that the notice of demolition provided by the Brihanmumbai Municipal
Corporation and the action of demolition that followed it were actuated by malafides,
involving clear malice in law therefore she was entitled for compensation due to malafide
action in law by civic body. Currently the case stands adjourned as the plaintiff had also filed
for recovering the fees of the lawyer from the defendant.7
What can be concluded in terms of Vicarious Liability?
In the case above although the final judgement is not yet passed but we can analyse the case
and can come to a possible conclusion.
Firstly, who are the parties to the case in terms of Vicarious liability?
Plaintiff will be Kangana Ranaut, Defendant here will be the State and Brihanmumbai
Municipal Corporation. In terms of vicarious liability, the state is also a party to the case as
Brihanmumbai Municipal corporation is said to be working under the State’s control.8
Analysing the case with reference to Vicarious liability:
The court gave a 166-page judgement where the Bombay high court clearly stated “the state
cannot take mala fide actions against a citizen however distasteful her views are.” 9 This
statement proves the malice present in the actions of the state. Although the final judgement
is yet to be passed as the case stands adjourned currently. But we can fairly assume that the
State is liable for the damages caused to Kangana Ranaut by the BMC as the court also said,
“Brihanmumbai Municipal Corporation is an organ of the state, and they have acted
wrongfully ‘without any lawful excuse’. Not only that but also it has proceeded to act
wrongfully and wilfully without any reasonable or probable cause.”10 This can be described
as a malice act in disregard of the citizen’s rights. The court also said that the true objective
was to reach a different end than that of the one for which power was entrusted to the body.
Therefore, we can say that the State can and must be held liable for the damages caused and
the state should not misuse its power in such a way as we have entrusted them with these
powers and if they misuse it they are destroying the reason of their position.

JUSTIFICATION OF APPLICABILITY OF VICARIOUS LIABILITY:

Vicarious liability is based on a legal maxim which is ‘Qui facet per alium facit per se’ which
means that he.who acts.through another does the act himself.11This maxim is often used in
deciding whether the employer or master is liable or not for the acts of the employee or the
servant with respect to Vicarious Liability.
There are some basic reasons why vicarious liability is applied which are:

7
Sonam Saigal, Bombay High Court quashes BMC order, The HINDU, Nov-27,2020.
8
According to Bombay Municipal Act, 1888.
9
Swati Bhasin, Request against demolition case, NDTV, Dec-02,2020
10
Sonam Saigal, Bombay High Court quashes BMC order, The HINDU, Nov-27,2020.
11
Oxford Reference, https://www.oxfordreference.com/view/10.1093/acref/9780199551248.001.0001/acref-
9780199551248-e-3209
 Deepest Pockets- This means that the employee or the servant will not always be in a
position to compensate the plaintiff for the damages caused in terms of money, and
hence if the master or the employer is made liable then surely, he might have the
means to compensate to fullest means even via insurance sometimes. This factor has
led to development of many legal principals.
Precautions- If the master or employer is himself made liable then he will surely
encourage prevention of accidents and which will in turn create a safer environment
for others.
Profit loss relation- Since the employer earns profit from the acts performed by the
employees whether it be directly or indirectly, therefore, he should also bear any
losses that come associated with the employee’s activities.12
Hence, we can fairly say that Vicarious Liability is applied because of the above principals
and the Master or Employer should also accept it and try to take all steps to create awareness
amongst its employees or servant to prevent harm or damage to any other person or property.

CONCLUSION:
Vicarious Liability has evolved throughout the years in many ways like the traditional way in
which the control test was applied which means that owner should retain the power of
controlling work but it cannot be applied in present world as the test bricks down when it is
applied to skill and particularly in professional work, therefore it is not treated as an exclusive
test anymore. Adding to the point above now we also have nature of employment test which
means that people who have a contract for services are called Independent Contractors which
means the owner has no control over the work of the employee for example a specialist
surgeon.
Vicarious Liability is considered as an exception to law of Torts as there is a general rule
which states that a person is liable for his own acts only but in Vicarious Liability it is
different it is a type of secondary liability, which means that both the torts committer and his
employer is liable and they both can be jointly as well as severally liable.

12
Preetisingh, Vicarious Liability in India, Legal Service India,
http://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html