VICARIOUS LIABILITY

BY

AVINASH KUMAR

20201BAL0023

BA LLB & SECTION 01

ACTIONABLE WRONGS AND COMPENSATION - BCL102

SUBMITTED TO

Dr. Rajan K E Varghese

SCHOOL OF LAW, PRESIDENCY UNIVERSITY

BANGLORE

KARNATAKA, INDIA.

FEBRUARY, 2021
 TABLE OF CONTENT

Introduction

Definition and Interpretation

Special Relationship

Basic Principles and legal Maxims

Who is the Servant & Master

 Master & Servant

 Hire & Fire

Course of Employment

Vicarious liability of State

 Position of England
 Position of India

Role of law commission

Conclusion
INTRODUCTION
In every tortuous liability case every person is liable of the
wrongful act done from his part to plaintiffs and no person can ne
blamed or put liable for the wrongful act of another person. But at some
distinctive situation a person can be held liable for the wrongful act of
another person. To make the liability justifiable there should be some
specific kind of relationship in Between both this kind of distinctive
liability is known as vicarious liability these special relationship can be
exercised in master and servant or principal and agents.

DEFINITION & INTERPRETATION

Vicarious liability is a situation in which one party is held partly
responsible for the unlawful actions of a third party. The third party also
carries his or her own share of the liability. Vicarious liability can arise
in situations where one party is supposed to be responsible for (and have
control over) a third party and is negligent in carrying out that
responsibility and exercising that control.

For example, an employer can be held liable for the unlawful

actions of an employee, such as harassment or discrimination in the
workplace. An employer might also be held liable if an employee
operates equipment or machinery in a negligent or inappropriate way
that results in damages to property or personal injury.
SPECIAL RELATIONSHIP
In act of vicarious liability, Master and Servants or Principal and
Agents are most prosecuted situation in relationship to vicarious
liability. Rather than this relationship which is most common source and
special relationship of vicarious liability occurs in child and parents.

The parents are to be held liable for the wrongful act conducted by
their children. They can be held liability sometimes when a child of
them behaves negligence.

For example; when negligence a child drives a vehicle and meet up

the accident cause injury or death to the plaintiff through defendant child
negligence. The parents of the child can beat responsibility for the
negligence act of child for allowing the child to have access to the
vehicle.

 Master and Servant

 Owner and Independent Contractor
 Partners in Partnership Firm
 Principal and Agent
 Company and its Directors
BASIC PRINCIPLES AND LEGAL MAXIMS
If in an situation a person were asked too drive a vehicle in order to
work for the owner and while in his course of his work to the owner
negligently causes any damage or injury or death in this kind of case the
owner of car is liable for the damage and could be prosecuted through
the vicarious liability.

The essentials of vicarious liability are:

 There must be a certain type of relation between the parties.

 The wrongful act must be committed by another person.
 The wrongful act must happen during the course of employment.

QUI FACIT PER SE PER ALIUM FACIT PER SE

Vicarious liabilities only deal with the situation where the person is
liable for some other person’s acts. It is considered as an exception to
the general rule that the person is liable for his acts only. Vicarious
liability 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’.
WHO IS THE MASTER AND SERVANT
WHO IS MASTER

A master is the person who is legally entitled to give such orders

and to have them obeyed. Master literally means one who employs
another subject to certain terms and conditions to work under his lawful
orders and supervision.

The relation of master and servant exists where the employer can
not only direct what work the servant is to do, but also control the
manner of doing such work. A son, for example is not to servant of his
father.

For the liability of the master to arise, for the torts committed by
his servant the following Two essentials are to be present:

 The tort is committed by the servant.

 The servant committed the tort in the ‘course of his employment

WHO IS SERVANT

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

directions and control of his master. A servant is one who voluntarily
agrees whether for wages or not, to subject himself during the period of
service to the lawful orders and directions of another, in respect of work
to be done by him.
 In a master-servant relationship, the master employs the services of
the servant and he works on the command of master and thus a special
relation exists between the two and in case of a tort committed by the
servant, his master is also held liable.

HIRE & FIRE

A servant and independent contractors are quite similar as they

both work for the employer, which means both of them can not decide
their choice of work, the employer will assign the work to them but in
the case of liability of tort, the master is liable for the wrongful act of the
servant but he is not liable for the wrongful act of the independent
contractor because the servant is engaged under the contract of services
while the independent contractor is engaged under the contract for
services.

The master is liable in the case of a servant because the servant

commits the wrongful act in his course of employment. So, the wrongful
act of the servant is considered as the act of the master. Thus, the master
is liable vicariously for the wrong done of the servant. But in the end,
the plaintiff has the choice to take action against either or both of them.
The liability of master and servant is both joint and several as they are
considered joint tortfeasors.
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:

 Respondent superior (let the principal be liable).

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

Consequently, one has to uncover the extent 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 functions.

COURSE OF EMPLOYMENT
The actions of the employees related to the term of his
employment are considered as the scope of employment. The scope
changes through the requirements of the job and the number of people
are required to do the job. There are situations where a worker is not
working under the scope of employment. These include:

INDEPENDENT CONTRACTOR
 An independent contractor is a person doing work for someone
else, these contractors are not considered as employees because they are
not working in the scope of employment and are certainly not considered
as employer’s liability.

ILLEGAL ACTS

Any illegal act is not under the scope of employment. So, any harm
caused by the illegal act is mostly not considered as the employer’s
liability.

When an employee performs an activity that is neither directed nor

controlled by the employer, the employee is not in the scope of
employment. In this situation, if the employee engages in any wrongful
tortious activity, the employer is not liable for the damages.

ROLE OF LAW COMMISSION

The law sometimes focuses upon the relationship; it attributes the
acts of the latter to the former. It should be emphasized at the outset that
this form of liability in criminal law is very much an exception rather
than the rule. The concept of vicarious liability is mainly a civil law
principle whereby an employer is made liable for the negligence or
breach of duty of his employees.

IPC makes a departure from the general rule in few cases, on the
principle of respondent superior. ‘in such a case a master is held liable
under various sections of the IPC for acts committed by his agents or
servants.

• Section 155 fixes vicarious liability on the owners or occupiers of

land or persons claiming interest in land, for the acts or omissions
of their managers or agents, if a riot takes place or an unlawful
assembly is held in the interest of such class of persons.
• Section 156 imposes personal liability on the managers or the
agents of such owners or occupiers of property on whose land a
riot or an unlawful assembly is committed.
• Section 268 and 269 explicitly deals with public nuisance. Under
this section a master is made vicariously liable for the public
nuisance committed by servant.
• Section 499 make a master vicariously liable for publication of
libel by his servant. Deformation is an offence under this section.

CONCLUSIONS
The course of employment is an essential element for vicarious
liability. It concerned with the case of one person is liable for the
wrongful action of another person. The core relationship to make person
liable under the superiority to the other person and the person who
commits wrong must be in the course of employment.