CHANAKYA NATIONAL LAW

UNIVERSITY,patna

FINAL PROJECT : LAW OF TORTS

TOPIC: VICARIOUS LIABILITY – MEANING AND SCOPE

SUBMITTED TO:

MS. Shushmita singh

FACULTY of law of torts

SUBMITTED BY:

ABHIJEET KUMAR CHOUDHARY

ROLL NO- 1904

B. A. LLB 1 SEMESTER
ST

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 ACKNOWLEGEMENT

The researcher takes this opportunity to express his profound gratitude and deep regards to
his guide MS. SUSHMITA SINGH for her exemplary guidance, monitoring and constant
encouragement throughout the course of this thesis. The blessings, help and guidance given
by her time to time shall carry the researcher a long way in the journey of life on which the
researcher is about to embark.

The researcher is obliged to staff members of Chanakya National Law University Patna,
for the valuable information provided by them in their respective fields. The researcher is
grateful for their cooperation during the period of his assignment.

Lastly, the researcher would like to thank almighty, his parents, brother, sister and friends for
their constant encouragement without which this assignment would not be possible.

THANK YOU

ABHIJEET KUMAR CHOUDHARY

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 DECLARATION

I hereby declare that the work reported in the B.A. LLB (Hons.) project report entitled

“Vicarious Liability-Meaning and Scope” submitted at Chanakya National Law

University Patna, is an authentic record of my work carried under the supervision of MS.

SUSHMITA SINGH . I have not submitted this work elsewhere for any other degree or

diploma. I am fully responsible for the contents of my project report.

ABHIJEET KUMAR CHOUDHARY

CHANAKYA NATIONAL LAW UNIVERSITY PATNA

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 TABLE OF CONTENT

INTRODUCTION …………………………………………………5-6

Aims and Objectives……………………………………………6

Hypothesis………………………………………………………6

Research Methodology………………………………………….7

Sources of Data………………………………………………….7

Mode of Citation ………………………………………………..7

1. Vicarious Liability in England……………………………8-9

2. Vicarious Liability in India……………………………….9-10

3. Principle on which Vicarious Liability is Based………….10-11

4. Modes of Vicarious Liability……………………………..11-12

5. Test of Control……………………………………………12-13

6. Course of Employment…………………………………....13-14

7. Vicarious Liability of State………………………………..14-16

8. Conclusion……………………………………………………17

9. Bibliography………………………………………………….18

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 INTRODUCTION

Vicarious liability was originated in 17 century by English Common Law. Vicarious

liability, sometimes referred to as “imputed liability” is a legal concept that assigns
liability to an individual who did not actually cause the harm, but who has a specific
superior legal relationship to the person who did cause the harm. Vicarious liability
most commonly comes into play when an employee has acted in a negligent manner
for which the employer will be held responsible.
Vicarious liability , also known by the Latin term “respondent superior” is the holding
of a person or entity responsible for damage or harm caused by someone else. Most
commonly thought of in employee –employer relationship, it applies in other situations
in which a person or entity holds a superior position to an agent. The concept of
vicarious liability is rooted in the fact that the superior party has induced, facilitated,
or otherwise contributed to its agent’s act.
As a general rule, a man is liable only for his own act but there are certain circumstances in
which a person is liable for the wrong committed by others. This is called “vicarious liability”
for example liability incurred for another. The most common instance is the liability of the
master for the wrong committed by his servants. In these cases liability is joint as well as
several. The plaintiff can sue the actual wrong-doer himself, be he a servant or agent as well
as his principal.
In the words of SALMOND, “In general a person is responsible only for his own acts,
but there are exceptional cases in which the law imposes on him vicarious
responsibility for the act of another, however, blameless himself “

In State bank of India v. Shyama Devi1 the plaintiff’s husband gave some amount and
cheques to his friend, who was an employee in the defendant bank, for being deposited in the
plaintiff’s account. No proper receipt for the deposits was obtained. The bank employee
misappropriated the amount. It was held by 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 friends, therefore, the defendant bank could not be made liable for
the same.

1
A.I.R 1978 S.C. 1263.

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In Lloyd v. Grace, Smith & Co.2 Mrs. Lloyd, who owned two cottages but was not satisfied
with the income therefore, approached the office of Grace Smith & Co., affirm 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 a 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 of the property and misappropriated the proceeds. He had acted solely for his
personal benefit and without the knowledge of his principal. It was held that since the agent
was acting in the course of his apparent or ostensible authority, the principal was liable for
the fraud.

AIMS AND OBJECTIVES

 The researcher wants to study about (in brief) vicarious liability.

 The researcher wants to study about (in brief) test of control in vicarious liability.
 The researcher wants to study about (in brief) course of employment in vicarious
liability.

HYPOTHESIS

 Whether test of control is an essential ingredient to hold the master vicariously liable.
 In what situations a person can be made vicariously liable.

2
(1912) A.C. 716.

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 RESEARCH METHODOLOGY

For the project research, researcher will rely upon the doctrinal method of research.

SOURCES OF DATA

The researcher will rely upon primary sources of data – books.

MODE OF CITATION

For the citation the researcher will follow BLUE BOOK (9th edition).

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 1. Vicarious liability in England

The rule known as the doctrine of common employment was an exception to the rule
that a master is liable for the wrongs of his servant committed in the course of
employment. The rule was first applied in 1837 in Priestley v. Fowler3 developed in
1850 in Hutchinston v. York New Castle and Berwick Rail Co.4 and it was firmly
established as a part of English law by subsequent decisions. The doctrine was that a
master was not liable for the negligent harm done by one servant to another fellow
acting in the course of their common employment.
In Priestley v. Fowler5 the plaintiff, who was the defendant’s servant, was injured at
his thigh due to breaking down of an overloaded carriage in the charge of another
servant of the defendant. Since both the wrongdoer and the injured person were the
servant of the same master, the doctrine of common employment was applicable and
the master was held not liable.
The essentials for the application of the defence of common employment are:
1. The wrongdoer and the person injured must be fellow servants.
2. At the time of the accident, they must have been engaged in common
employment.

The doctrine was supposed to be based upon an implied contact of service that the
servant agreed to run risks naturally incident to the employment, including the risks of
negligence on the part of his fellow employee.6 If the harm was caused by the
employee’s own negligence, the employee could recover,7 unless the employee’s
claim was defeated because of his contributory negligence. Mere knowledge of the
risk by the workmen was, however, no defence.

3
(1837) 3. M. and W. 1.
4
(1850) 5 Exch. 343
5
(1837) 3 M. & W. 1.
6
Bratonshill coal co. v. reid
7
Brydon v. Stewart, (1859)

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 The Employers’ Liability Act, 1880 provided for the compensation only to certain
classes of workmen in certain cases.

Beginning with the act of 1897, a series of Workmen’s Compensation Acts were
passed. The most important of these is the Workmen’s Compensation Act, 1925. The
employer was bound to pay compensation for any personal injury caused to its
servants by an accident arising out of and in the course of the employment.

Apart from the various statutory provisions, the scope of the doctrine of common
employment were curtailed by judicial decisions, two of which, Wilson and Clyde
Coal Co. v. English8 and Radcliffe v. Motor SERVICES Ltd9 are worth mentioning.

The doctrine was eventually abolished by the Law Reforms Act 1948.

2. Vicarious liability in India

In India, the matter came for discussion in a number of cases. In Secretary of State v.
Rukminibai,10 the plaintiff’s husband, and employee in the G.I.P Ry. Was killed
because of the negligence of a fellow employee. The Nagpur High Court allowed the
action. Stone, C.J, expressed the view that the rule was an unsafe guide for the
decision in India.11 Pollock j. said “even if I were to hold that the doctrine is
inequitable under modern condition in England, I should not be prepared to extent it
to India, as I consider that it would not be suitable to Indian conditions.” In T and J
Brocklebank Ltd. v. Noor Ahmode,12 the privacy council referred to the above stated
decision of the Nagpur High Court but did not express any final opinion either way. In
a later decision, Governor General in Council v. Constance Zena Wells,13 the privacy
council held that the doctrine of common employment was applicable in India,
although its scope has been limited by the Indian Employers’s Liability Act, 1938, S.3
(d). in that case, the plaintiff’s hushband, who was a firemen in defendants’ railways
was killed in an accident caused by the negligence of a fellow employee, a railway
driver. The privacy council held that the defence of common employment was

8
(1938) A.C. 57; (1937) 3 ALL E.R. 628.
9
(1939) A.C. 215;(1939) 1 ALL E.R. 637.
10
A.I.R 1937 Nag. 345.
11
Ibid., at 368.
12
A.I.R 1940 P.C. 225: C.W.N. 197 (P.C.)
13
A.I.R 1950 P.C. 22; (1949) 54 C.W.N. 173 (PC)

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 available to defendant and the plaintiff’s claim for compensation was dismissed.
Apart from from the Employers’ Liability Act, 1938, the scope of the doctrine has
also been limited by the Workmen’s Compensation act, 1923, the employees’ state
insurance act,1948 and the personal injury (Compensation Insurance) Act, 1963
which imposed liability on the employers to compensate their employees in various
cases.
Due to the difficult created by the Privacy Council’s decisions in Constance Zena
Wells’ case, which still recognized the defence of Common Employment in India,
Section 3 of Employers’ Liability Act, 1938 has been amended in 1951. By this
amendment, the defence of Common Emploment, as such has been abolished in India.
The doctrine of Common Employment is, therefore, only of historical importance, bot
in India and England.

3. Principle on which vicarious liability is based

The doctrine of vicarious liability is based on principles which can be summoned up

in the following:
 Qui facit per alium facit per se – the maxim means, “he who acts through
another is deemed in deemed in law as doing it himself”. The master’s
responsibility for the servant’s act had also its origins in this principle. The
reasoning is that a person who puts another in his place to do a class of acts in
his absence, necessarily leaves to determine, according to the circumstances
that arise, when an act of that class is to be done and trust him for the manner
in which it is done; consequently he is answerable for the wrong of the person
so entrusted either in the manner of doing such an act, or in doing such an act
under circumstances in which it ought not to have been done; provided what is
done is not done from any caprice of the servant but in the course of the
employment.
 Respondeat superior – another maxim usually reffered to in this connection is
respondeat superior, i.e., the superior must be responsible or let the principal
be liable. In such cases not only he who obeys but also he who commands
becomes equally liabe. This rule has its origin in the legal presumption that all
acts done by the servant in and about his master’s business are done by his

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 master’s express or implied authority and are, in truth, the act of the master.
The master is answerable for every such wrong of the servant as is committed
in the course of his service, though no express command or privity is proved.
Similarly, a principal are agent are jointly and severally liable as joint wrong-
doers for any tort authorized by the former ad committed by the latter.
 Modern view – in the recent times, however, the doctrine of vicarious liability
is justified on the principle other than that embodies in the above mentioned
maxims. It is now believed that the underlying ides of this doctrine is that of
expendiency and public policy. Salmond has rightly remarked in this
connection that “there is one idea which is found in this judgement from the
time of Sir John Goddard namely public policy.”
The view of Lord Pearce can be quoted here with approval, which he
expressed in Imperial Chemical Industries, Ltd v. Shatwell “the doctrine of
vicarious liability has not grown from any very clear, logical or legal principle
but from social convenience and rough justice. The master having
(presumably for his own benefit) employed the servant, and being
(presumably) better able to make good any damage which may occasionally
result from the arrangement, is answerable to the world at large for all torts
committed by his servant within the scope of it.” In the words of Winfield, this
may not satisfy the jurist or the logician, but it probably represents the
prevailing stage of legal opinion on the master and though the future may
bring further extension of vicarious liability, it is inconceivable that a series
proposal for its abolition will be made so long as the law of tort as we know it
remains alive.

4. Modes of vicarious liability

The liability for other’s wrongful acts or omission may arise in the following 3
ways-

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  Liability by ratification- where the defendant has authorized or
ratified the particular wrongful act or omission.

 Liability arising out of special relationship- where the defendant

stands to the wrong-doer in a relation which makes the former
answerable for wrongs committed by other, though not specifically
authorized. This is the most important form of liability.

 Liability for abetment

5. Test of control

The first significant test which the courts developed was the so-called control test. This was
first executed in the nineteenth century case of Yewens v Noakes. In this case, the
Respondent was a hops merchant and possessed certain houses, which had an internal
communication throughout, and which were used for the purposes of his business. Keppel
looked after the houses, and lived in them for this purpose, but he was also a clerk in the
Respondent's pay at a set annual salary. He lived in the houses with his wife, a child, and a
servant. The case concerned the payment of inhabited house duty, and a key question was
whether Keppel was the servant of the Respondent. It was held that in this instance, Keppel
was not (and, therefore, the Respondent was liable to pay the duty). On appeal, however, it
was held that the premises were held purely for trade purposes, and as Keppel's position was
simply that of a caretaker, the exemption claimed was allowed. A servant, it was stated, is a
person subject to the command of his master as to the manner in which he shall do his work
(Bramwell, LJ). The question of whether a person is an employee, then, according to this test,
depends upon the degree of control which the 'employer' exercises over the worker.

This test was furthered in the case of Performing Rights Society v Mitchell and
Booker, which stated that, the final test, if there is to be a final test, and certainly the test to
be generally applied, lies in the nature and degree of detailed control over the person alleged
to be a servant. This test proved to be flawed when considered in relation to skilled workers
whose qualifications exceeded that of their employers.

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In the case of Walker v Crystal Palace Football Club, whereby it apparently became
necessary to establish whether Mr. Walker as under a contract of service to the club when he
got injured as a result of his negligence at work. It was important to know that he was subject
to the training and method of play both on the pitch and training ground from the coach.
Rather than that, if the control test was strictly interpreted, skilled workers would be
identified as independent contractors who were unable to rely on the vicarious liability
principle against the employer, the football club.

Consequently, the courts deemed it fit to develop another test that reflected this development
in the workforce, as the courts ruled in favor of Mr. Walker and recognized that skilled and
professional people could be employees as well. From that case, it can be highlighted that A
cannot relieve himself off the liability of B even if he termed him as an independent
contractor. So, B’s action makes A has to vicarious liable to the damages and injuries
suffered by C due to the negligence act committed by B at work.

6. Course of employment

Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts or
omissions by their employees in the course of employment. For an act to be considered
within the course of employment it must either be authorised or be so connected with an
authorised act that it can be considered a mode, though an improper mode, of performing it.
There some instances where the employers are not liable for the actions of there employees.

Neither, generally, will an employer be held liable for assault or battery committed by
employees, unless the use of force was part of their employment like police officers or they
were in a field likely to create friction with persons they encountered like car re-possessors.
However, the employer of an independent contractor is not held vicariously liable for the
tortious acts of the contractor, except where the contractor injures someone to whom the
employer owes a non-delegable duty of care, such as where the employer is a school
authority and the injured party a pupil.

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In the case of Limpus v London General Omnibus Co., the courts heard that a bus driver of
London Omnibus General Co. was racing a bus and caused an accident. His employers, the
bus company, were held liable because at the time of the accident, he was doing what he was
employed to do, driving a bus, although in an improper way. The bus driver was carrying out
his course of employment to drive the bus, when the accident occurred and as a result, his
employer (London General Omnibus) was also held liable for the accident. Therefore, in
accordance to the ruling of that case, there was no reason for A should not be held liable for
the accident caused by B.

Nevertheless, one might be argued that B is an independent contractor and A should not be
liable or held responsible for B’s actions that resulted into the accident. This comes as an
issue when one is differentiating the course of service and the course for service. Normally,
in the course of service, the employee is regarded as to be under the employment policy of
the employer. Alternatively, the employee is regarded as not being under the employment
policy of the employer when in the course for service.

However, scope of employment is not the only basis for employer liability under agency
principles. An employer is subject to liability for the torts of its employees acting outside the
scope of their employment when, inter alia, the employer itself was negligent or reckless, the
employee purported to act or to speak on behalf of the employer and there was reliance upon
apparent authority, or he was aided in accomplishing the tort by the existence of the agency
relation. An employer is negligent, and therefore subject to liability.

7. Vicarious liability of state

The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what
extend the administration would be liable for the torts committed by its servants is a complex
problem especially in developing countries with ever widening State activities. The liability
of the government in tort is governed by the principles of public law inherited from British
Common law and the provisions of the Constitution. The whole idea of Vicariously Liability
of the State for the torts committed by its servants is based on three principles:

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 Respondent superior ( let the principal be liable ).
 Qui facit per alium facit per se ( he who acts through another does it himself ).
 Socialization of compensation.

 Position in England - Under the English Common Law the maxim was
“The King can do no wrong” and therefore, the King was not liable for the
wrongs of its servants. But, in England the position of old Common law
maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the
King could not be sued in tort either for wrong actually authorised by it or
committed by its servants, in the course of employment. With the increasing
functions of State, the Crown Proceedings Act had been passed, now the
crown is liable for a tort committed by its servants just like a private
individual. Similarly, in America, the Federal Torts Claims Act,1946 provides
the principles, which substantially decides the question of liability of State.

 Position in India -Unlike Crown Proceedings Act, 1947(England), we do

not have any statutory provisions mentioning the liability of the State in India.
The law in India with respect to the liability of the State for the tortious acts of
its servants has become entangled with the nature and character of the role of
the East India Company prior to 1858. It is therefore necessary to trace the
course of development of the law on this subject, as contained in article 300 of
the Constitution. The position of State liability as stated in Article 300 of the
Constitution is as under: Clause (1) of Article 300 of the Constitution provides
first, that 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; secondly, that the Government of India or the Government of
a State may 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 or be sued, “if this Constitution
had not been enacted”, and thirdly, that the second mentioned rule shall be
subject to any provisions which may be made by an Act of Parliament or of

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the Legislature of such State, enacted by virtue of powers conferred by the
Constitution.

Consequently, one has to uncover the extend of liability of the East India
Company in order to understand the liability parameters of the administration
today because the liability of the administration today is in direct succession to
that of the East India Company. The East India Company launched its career
in India as a purely commercial corporation but gradually acquired
sovereignty. Therefore, in the beginning, the company did not enjoy the
immunity of the Crown. It was only when it acquired political powers that a
distinction was made between sovereign and non- sovereign function

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 8.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 quai 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. In India
sections154,155 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 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.

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 BIBLIOGRAPHY

 Law of torts by Bangia Dr. R.K. Published by – Allahabad Law

Agency (Haryana) (2013).

 Law of torts and consumer protection act by Pandey Dr. J.N.

Published by Central law publication (2005).

 The law of torts by Singh G.P. Published by Lexis Nexis (2006).

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