RESEARCH PAPER

TOPIC – VICARIOUS LIABILITY

TABLE OF CONTENTS

SNO. PARTICULARS

1. INTRODUCTION

2. VICARIOUS LIABLITY BY RELATION

3. CONSTITUENTS OF VICARIOUS LIABILITY

4. SERVANT AND INDEPENDENT CONTRACTOR

5. EXCEPTIONS

6. CASE ANALYSIS OF A PROMINENT CASE

7. CONCLUSION

8. BIBLIOGRAPHY
INTRODUCTION
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 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 example of such a liability is:

1. Liability of the principle for the tort of his agent;

2. Liability of parent’s for each other’s tort;
3. Liability of the master for the tort of his servant;

So vicarious liability deals with where one person is liable for the act of others. In the field of
torts it is considered to be an exception to the general that a person is liable for his own acts only.
It is based on the principle of qui facit per se per alium facit per se, which means, “He who does
an act through another is deemed in law to do it himself”. So in a case of vicarious liability both
the person at whose behest the act is done as well as the person who does the act are liable. Thus,
Employers are vicariously liable for the torts of their employees that are committed during the
course of employment.

Reasons for vicarious liability

Several reasons have been advanced as a justification for the imposition of vicarious liability:
(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access
to resources via insurance, has in some cases had an unconscious influence on the development
of legal principles.

(2) Vicarious liability encourages accident prevention by giving an employer a financial interest
in encouraging his employees to take care for the safety of others.

(3) As the employer makes a profit from the activities of his employees, he should also bear any
losses that those activities cause.

In the words of Lord Chelmsford: “It has long been established by law that a master is liable to
third persons for any injury or damage done through the negligence or unskillfulness of a servant
acting in his master’s employ. The reason of this is, that every act which is done by servant in the
course of his duty is regarded as done by his master’s order, and, consequently it is the same as if
it were master’s own act”.
VICARIOUS LIABILITY BY RELATION

Principal & Agent

When a person has got the authority to perform a certain act, but he authorizes it to someone else
working under him, this relationship is known as a principal-agent relationship. When the
principal authorizes an agent to perform some tortious act, the liability for that will be not only of
that person who has committed it but also of that that has authorized it. It is based on the
principle “Qui facit per alium facit per se” which refers to the act of an agent, is the act of
principal. Principal and agent both liability is joint and several.

The authority to do some act allotted by the principal to his agent may be expressed or implied.
The principal usually generally do not ask expressly to his agent for some wrongful act, but what
agent do during the course of his employment, the principal shall be made liable for that.

Like in the case of Lloyd vs. Grace, Smith & Co in this case, Mrs. Lloyd was the owner of two
cottages, but she was not satisfied with the income so received from those. Therefore, she
ultimately reached to the office of Grace, Smith & Co. which was a firm of solicitors, engaged in
the working of consulting about the property matters. She asked about her problem, the
managing clerk of the company advised her to sale the cottages and invest the money in some
nice place. She accordingly agreed to the same, she was asked to sign the sale deeds for the
cottages, but instead of that, the clerk by doing fraud made her sign on gift deed in the name of
the clerk. He then sold the cottages and misappropriated the proceeds. He had done the act solely
for her his own personal profit, without the permission of his principal. It was held that even
though the agent acted in his personal capacity but was acting in the course of his apparent
authority, and hence the principal was held liable for fraud.

Partners

The wrongs done by one partner under tort law will result in making the other partner also liable
in the same manner as the principal is held liable for the wrongful act of his agent. The rules of
law of agency apply in cases of their liability also. Therefore for the wrongful act of one partner
of a business firm the all other partners are held liable to the same extent as that of the guilty
partner.

As in the case of Hamlyn vs. Houston & Co. one of the partners of the partnership firm bribed
plaintiff’s clerk to give him the secret information of plaintiff’s business. It was held that both
the partners of the form to be held liable for inducing breach of contract, which is a wrongful act
although the act was committed by only one of them.
Master & Servant

The relationship of master and servant is also the same as that of principal and agent. Where for
every wrongful act of the agent the principal is liable like for the wrongful act of the servant the
master is too held liable. Therefore, for every wrongful act on the servant the master is presumed
to have done that by himself.

“The doctrine of liability of a master for the act done by his servant is based on the
maxim Respondent Superior that refers to let the principal be liable and it puts the master in the
same position as if he had done the act himself. It also drives validity from the maxim Qui Facit
Alium Per Se, i.e. he who does an act through another is deemed to be done it by himself.”[5] It
is so because it seems that the master is in a better position to meet the claim because of his
larger pocket and also the ability to pass on the burden of liability through insurance.

Accordingly, the servant can be defined as, a person employed by another to do work under the
direction and control of his master. For the master to be held liable essentials are:-

1. The tort must have been committed by the ‘servant’

2. The servant committed the tort in the course of his employment.

CONSTITUENTS OF VICARIOUS LIABILITY

So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.

Who is a servant and independent contractor?

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 such
control. He undertakes to do certain work and regarding the manner in which the work is to be
done. He is his own master and exercises his own discretion. And independent contractor is one
“who undertakes to produce a given result, but so that in the actual exclusion of the work, he is
not under the order or control of the person for whom he does it, and may use his own discretion
in things not specified beforehand.”

SERVANT AND INDEPENDENT CONTRACTOR

A servant and independent contractor are both employed to do some work of the employer but
there is a difference in the legal relationship which the employer has with them. A servant is
engaged under a contract of services whereas an independent contractor is engaged under a
contract for services. The liability of the employer for the wrongs committed by his servant is
more onerous than his liability in respect of wrongs committed by an independent contractor. If a
servant does a wrongful act in the course of his employment, the master is liable for it. The
servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the
master as well. “The doctrine of liability of the master for act of his servant is based on the
maxim respondent superior, which means ‘let the principal be liable’ and it puts the master in the
same position as he if had done the act himself. It also derives validity from the maxim qui facit
per alium facit per se, which means ‘he who does an act through another is deemed in law to do
it himself’.” Since for the wrong done by the servant, the master can also be made liable
vicariously, the plaintiff has a choice to bring an action against either or both of them. Their
liability is joint and several as they are considered to be joint tortfeasors. The reason for the
maxim respondent superior seems to be the better position of the master to meet the claim
because of his larger pocket and also ability to pass on the burden of liability through insurance.
The liability arises even though the servant acted against the express instruction, and for no
benefit of his master.

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 in the course of his employment.

A servant is a person employed by another to do work under the direction 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.

EXCEPTIONS
 ACT OUTSIDE THE COURSE OF EMPLOYMENT

Though master has control over the manners in which work is to be done but in certain cases
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.

In Beard v. London General Omnibus Co., at the end of the journey, the driver of the bus went
to take dinner. During the temporary absence of the driver, the conductor drove the bus for next
journey without the knowledge of driver and met with an accident, In this case master was not
made liable because the act done by the conductor was outside the course of employment.

TRANSFER OF SERVANT WITH CONTROL

When there is only transfer of service and not the servant as seen above in Mersey Docks and
Harbour Board v Coggins and Griffith Ltd. Then the master can be made liable but in certain
cases where there is service is transferred with the servant and its effective control too, then
master cannot be made liable and in that case he hierer who took that effective control will be
made liable.

In case of Rajasthan State Road Transport Co. v. K.N. Kothari, has been held by the
Supreme Court that the transfer of effective control over servant would make the transferee of
the vehicle liable for vicarious liability. In this case, the RSRTC hired a bus and a driver for
running a bus on a specific route. The RSRSTC engaged a conductor, who managed the bus and
also exercise control over driver. It was held that for an accident cause by the driver hirer
RSRTC was made liable vicariously and not the original owner who transferred such control.

 In some hospital cases also, in certain circumstance the master are not made liable for the
negligence of staff surgeon because they lack power of control over them.

In Hillyer v St. Bartholomew’s Hospital, the hospital authorities were not made vicarious liable
for the negligence of their staff involving professional care and skill, because they lacked the
power of control over them.

CASE ANALYSIS OF A PROMINENT CASE

B. Govindraju Vs. M.L.A. Govindraja Mudaliar

In this case a motor lorry was delivered for repairs by the owner to a garage, during the
repairs the garage employee took it for a test drive to see the repairs made it good and met
with an accident. By the Madras High court it was held that the owner of the lorry was not
responsible for the act vicariously as the workshop or the garage was an independent
contractor and therefore no such vicarious liability arose.
A similar finding was arose in the case of Devinder singh VS. Mangal Singhin this the owner
of the garage where the truck was sent for repairs for taking the drive of the truck and hit a
cyclist on this a case was bought by the cyclist and it was held by the court that since owner
of the garage wasn’t the servant of the owner of the truck rather he is just an independent
contractor so therefore owner of the truck cannot be held vicariously liable.
But a contrasting view was given by the Bombay High court in Ramu Tularam Vs.
Amichand in which it was held that “when the car is given to the garage for repairs, the
control of the car certainly stands transferred to the owner of the garage. But the point is that
in such a case the owner of the garage is constituted by the by the owner of the car as his
agent Everything done or omitted to be done by the agent will be something for which the
principal will be vicariously liable… the owner of the garage makes various purchases for the
purpose of the repairs of the car, the owner of the car has to pay for those purchases.. IF the
doctorine of agency extends to the situation where the car is allowed by the agent to go out of
the garage berserk. The liability of the agent will have to be vicariously fastened even upon
the principal in such a case.”
Conclusion
It is very well inferred from this study that a third party can be made liable for the act of
some other party in case of lying of certain prescribed relations among the two, The law is
very much clear about the outline of Vicarious Liability. The Project also makes it clear that
the basis of this concept is that one person or entity who is acting for some other with the
similar capacity or with his assent commits something that is wrong then that person along
with the third person whose capacity or assent is included here will be held vicariously
Liable, Also this study made clear that such a concept is much needed where the one doing
action for a third person is held liable for any wrong act he was asked to do by that third
party, and such a lawful concept of Vicarious liability protects the person performing the act
and implicating the real culprit, also in case of the person performing the act has the malice
and does so with assent of the third party both can be held liable one person directly and third
person vicariously this way the law makes the full use of putting end to any kind of breach
and protecting the people of its nation. Also while drawing inference it is very well
appreciated the contrasting judgment that were drawn in cases of independent contractor and
servants and giving the very clear edge or line to differentiate among the same for proper
working of Judicial Body.

BIBLIOGRAPHY
Books:

1. Law of torts by R.K. Bangia

2. Salmond on Jurisprudence by Fizgerald
3. Law of Tort by B.M. Gandhi
4. Law of Tort By Avtar Singh

Cases:

1. Lloyd vs. Grace, Smith & Co

2. Hamlyn vs. Houston & Co.
3. Mersey Docks and Harbour Board v Coggins and Griffith Ltd
4. Rajasthan State Road Transport Co. v. K.N. Kothari
5. Hillyer v St. Bartholomew’s Hospital
6. B. Govindraju Vs. M.L.A. Govindraja Mudaliar