MODULE 5- VICARIOUS LIABILITY

5.1 Introduction

Every person is liable for acts the person commits and not responsible for the actions done by
others. In some situations, when a person is liable for the acts of another person is known as
vicarious liability. So, for this to happen, there must be a specific kind of relationship
between both people, and the act must be connected with the connection. These relationships
can be of a master and servant or principal and agent.
Vicarious liability is the liability of a person for an act of another person because of their
relationship with each other. E.g. Saurav is the driver of Gaurav, and Gaurav sent Saurav to
drop his friend Suryash at the Airport. On their way, Saurav hits Mahesh because of his reckless
driving. In this situation, Gaurav was not even in the car while the car hit Mahesh, but still, he
was liable for the accident caused by Saurav. This is because of vicarious liability. It is
considered an exception to the general rule that the person is responsible for his acts only.
Vicarious liability is based on the principle of ‘Qui facit per se per album facit per set, which
means ‘He who does an act through another is deemed in law to do it himself.

The reasons behind holding the master liable for the actions of his servant are:

1. A servant is just an agent controlled and supervised by his employer. So, the servant
works according to the master, which means he works in the manner the master
wants the work to be done. So, the liability for the actions of the servant must be of
the master.

2. The master always enjoys the profit derived from the efforts of the servant, so he
must also bear the loss that occurred by the activity of the servant but only in the
course of employment.

3. The master is more financially stable than that a servant. So, the master is more
suitable to pay for the damages caused by the tortious act of the servant. But the
masters can take reasonable care and precautions to prevent themselves from such
situations.

5.2 Justification for Vicarious Liability:

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 5.2.1 Vicarious Liability by Ratification

Usually, when a person acts through another person, that other person is given authority by
such a person to do an act. E.g., if A is doing an action on behalf of B, it is done only when B
has given his authority to A to do such an act. If any liability arises because of A’s show, then
B will be held liable because he had given his authority to A to do such action.
But it is not always the case, and many times, a person can act for another even without their
authority, and the person can be held liable despite him not giving the power to do such an
act. This happens when the person ratifies an action by the other person on his behalf.
Ratification means the person for whom another does an act approves of it after it has been
done. So, the authority to act on his behalf is given after the show has already been done. In
the law of torts, the effect of ratification is that it will be treated as if the act was done with the
authority from the beginning.

Illustration
A is an agent of B who enters into an agreement on B’s behalf with C for an unlawful act
without B’s authority. Later, B approves of such a contract and thereby ratifies it. So, B will
be vicariously liable for such a criminal act because he has confirmed it.
In the case of Commissioner of Police of the Magistrate Metropolis v. Woks (2012) , it
was held that for an employer to be liable for the acts of his employee, he must have given his
authority to such a person to act in that manner. Such power can be given either expressly or
impliedly, and it may be done before the commission of the act or after the show has been
done.
Thus, in the above case, the validity of the vicarious liability by ratification was upheld.
Therefore such an act will make the ratifying person liable for the tortious act of another.
This is based on the maxim Omnis ratihabitio retro trahitur et mandato aequiparatur. It
means any act that has already been done for which consent is given afterward will have a
retrospective effect, and such consent will be treated the same way as if the act was done on
the command of the ratifying person.

Illustration

If A does an act without B’s authority on his behalf and B later ratifies that act, the law will
regard such an act to have been done as if it was done by A on B’s command.

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In the case of Remploy Ltd. v. Campbell & Anr (2013), the question before the court was
regarding ratification. The claimant had been removed from his services, and he cited his race
to be the grounds for such termination. Remploy Ltd. provided the workforce to Redbridge
(the company which terminated the claimant). At the time of termination, they had a duty to
inquire into the reason for the same. They failed to do so; therefore, the claimant claimed this
act amounted to ratifying his termination. On this, the Court had observed that the question is
whether the 3rd party (the claimant here) perceived that Redbridge did this act in the name of
or on behalf of Remploy. If the answer to that question is yes, then the question about the
ratification by Remploy of the act of Redbridge by its action can arise. The court, therefore,
sent the case back to the Tribunal to decide the question of ratification after it found that the
3rd party here had perceived that the act was done on behalf of Remploy.

Conditions for Ratification

Certain conditions must be fulfilled for ratification to be valid and hold the person vicariously
liable under the law of torts. These conditions are:

The person who ratifies the act must have complete knowledge about the
tortious nature of the Act
Suppose a person who is ratifying the act of another person is not aware of the fact that some
wrongful act is being done. In that case, he cannot be held liable for such ratification because
he has not approved the unlawful act. Thus, without having complete knowledge of the facts,
a ratification is not valid to make him liable. This way, a person can be protected from
unknowingly approving the wrong act. In these cases, the person who committed such an act
is sensitive alone, even if he did such an act for the other person without his authority.

Illustration
A is an agent of B who purchases property for immoral purposes on B’s behalf. If B knowing
about such purpose, ratifies the act of A, it will make B vicariously liable for the resultant
wrong which will arise in this case.

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Ratification should be done when the person ratifying could have done that
act himself.
In the law of torts, vicarious liability arises because a person is deemed to have done an unlawful
act through another person; therefore, it is assumed in such a situation that the person did that act
himself. But suppose a person is incapable of committing that act at the time of ratification. In that
case, he cannot ratify it because he is not in a position to do it; therefore, he cannot be said to have
acted through another person.

An illegal or void act cannot be ratified.

This last condition must be fulfilled in vicarious liability cases by ratification. A reasonable man
will not willingly ratify an illegal act because, in such a case, he knows that he will be liable for
such an act and the law also does not allows such ratification to be valid. Thus, if legal action is
done and any tortious act has been committed during the commission of such an act, the person
will be vicariously liable if he ratifies that act because he has authorized another person to do legal
action. While doing such an act, an illegal act was also committed as a consequence of it. So the
person has to be liable for its products as well.

5.2.2 Abetment
In actions of wrong, those who abet the tortious acts are equally liable with those who commit
the wrong. A person who procures the act of another is legally responsible for its consequences
(1) if he knowingly and for his ends induces that other person to commit an actionable wrong,
or (2) when the act induced is within the right of the immediate actor and, therefore, not
wrongful so far as the actor is concerned, but is detrimental to a third party and the inducer
procures his object by the use of illegal means directed against that third party.

5.2.3 Special Relationships

Master-Servant:
Scope of Employment
The employee’s actions related to the term of his employment are considered the scope of
work. The scope changes through the job requirements and the number of people required to
do the job. There are situations where a worker is not working under the scope of
employment. These include:
Independent Contractor
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An independent contractor is a person doing work for someone else; these contractors are not
considered employees because they are not working in the scope of employment and are
certainly not viewed as the employer’s liability.
Illegal Acts
Any illegal act is not under the scope of employment. So, any harm caused by the unlawful
act is mostly not considered 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, the employer is
not liable for unlawfulness if the employee engages in any unlawful, tortious activity.
For example, A is the driver of B. After dropping B off at his office, A leaves the premises to
meet his friend C in B’s car. A picked up C, and they went for a drive and had an accident. Z
was injured in the accident. In this situation, B is not liable for any damages because B had no
idea of A’s plan, and A was not in any course of employment given by B.

Difference between Servant and Independent Contractor

A servant and independent contractors are pretty 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
job 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 responsible for the wrongful act of the independent contractor because
the servant is engaged under the contract of services. In contrast, the independent contractor
is involved under the contract for services.
The master is liable in the case of a servant because the servant commits a wrongful act in his
employment. So, the servant’s wrongful act is considered the act of the master. Thus, the
master is liable vicariously for the wrongdoing of the servant. But in the end, the plaintiff can
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.

For example, A has a company, and all the people working in his company are his servants,
as A has the right to control and supervise the work of the people working there.
While the master can not control the work of an independent contractor, the master can only
provide the type and duration of the work to the independent contractor. Still, he needs help
to control the process he uses during the work. An independent contractor himself chooses
how the work is to be done.

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For example, for all the third-party workers who work daily on contracts, the taxi driver, as
the person taking a cab, is not liable for an accident that occurred during the ride. Still, the
person will be responsible when he is in a car with his driver.
A has a shop, one day there was something wrong with the A.C., A called a mechanic B to
repair the A.C. while B is working for A, but it doesn’t mean that A will be liable for B’s
wrongdoings as in this case, B is an independent contractor, not a servant because A can only
tell B what to do, but B himself will figure out how to do that specific work.

CASE;

Barclays Bank Plc v Various Claimants [2020]

Facts; A qualified doctor conducted medical examinations for Barclays Bank in respect of
prospective and current employees, in respect of which he received a fee per examination. A
group of 126 female claimants made allegations of serious sexual assaults against the doctor,
taking place during the medical examinations. The medical examinations were a condition of
employment for the claimants. The claimants were made to undertake the examination alone,
the doctor was provided with proforma by the Bank, headed with the Bank’s logo and entitled
‘Barclays Confidential Medical Report’. The report was completed and signed by the doctor
and the claimant and was then returned directly to the Bank. The case concerned whether the
bank was vicariously liable for the actions of the doctor, the bank sought to prove that there
was no relationship of employment and the doctor was thus self-employed.

Judgement; The Supreme Court, reversing the Courts of Appeal earlier 2018 judgement,
decided unanimously that the doctor was not an employee but was an independent contractor
and therefore there was not a relationship akin to employment. This effectively confirmed
that there is an independent contractor defence in vicarious liability which can be effective in
deciding employment status.

Vicarious Liability of Master for torts by Servant

In a Master-Servant relationship, the master employs the services of the servant, and he
works on the command of the master; thus, a particular relationship exists between the two,
and in case of a tort committed by the servant, his master is also held liable.
There are many cases in which the servant does an act for his master, and thus, in law, it is
deemed that the master was doing that act himself; therefore, if the servant commits an

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unlawful act, the master will also be held liable for the same. This liability of the master is
based on the following two maxims.
1. Qui facit per alium facit per se: – It means that whenever a person gets something done by
another person, the person is viewed as doing such an act himself.
Illustration: If A is the owner of many trucks and employs drivers to drive them for trade
and in case one of his drivers gets into an accident because of his rash driving, then even
though A did not go the truck himself, he will be liable for the accident.
2. Respondent Superior: – It means that the superior should be held responsible for the acts
done by his subordinate.
These two maxims have played a significant role in developing the law of vicarious liability
of the master.

Essential –
1. The servant has committed an act that amounts to a tort.
2. The servant commits a tortious act while working under the master.

Situations in which the Master is Liable

• When the wrongdoing arrived from a natural consequence of an act of servant when
the servant works on the instructions of his master, then the master is liable for all the
damages arriving out of the work of the servant.
• When the wrongdoing arrived from the negligence of the servant, for example, B
works as a house help for A B was cleaning A’s house and forgot to close the door,
which resulted in the escape of their dog, the dog bit the son, A was liable for all the
damages caused by B’s negligence.
• When the wrongdoing through the mistake in execution from the lawful authority. For
example, A is the guard of XYZ bank and is allowed to shoot in an emergency. One
day during the cash transfer, B entered with the people who were transferring the cash
in the bank; suspicious of B being a dacoit, he shot him and caused his death. In this
case, the bank is vicariously liable for A’s actions.
• When the wrongdoing happens through the servant’s fraudulent activity, for example,
A works in an insurance company. B goes to the company to open insurance, and A
takes from B and creates a policy for his wife. In this case, the insurance company is
liable for A’s fraudulent act.

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 • When the servant wilfully committed the wrong of hurting the master. Every wrong
act of a servant in the course of employment, either willful, reckless, or improper, is
liable to the master. For example, when a waiter hurts the customer for being rude, the
waiter and the hotel are liable for the waiter’s negligence. The hotel is responsible
under vicarious liability.

Test for Determining Master-Servant Relationship

For the determination of a Master-Servant relationship, specific tests have been developed
over a long period.
Traditional View – Control Test
As per this test, for the determination of a master and servant relationship, it should be seen
whether the master has the power to not only instruct what should be done but also the
manner of doing the act, and if such authority exists, then as per this test, the master and
servant relationship exists between the two.

In short, VJ vs Henderson Ltd, Four indica of a contract of service was pointed out
1. Master's power of selection of his servant
2. Payment of wages or other remuneration
3. Master's right to control the method of doing the work
4. Master's right of suspension or dismissal.
The important characteristic according to this analysis is the Master's power of control for
other indica may also be found in a contract for services.

Illustration: A is the owner of a significant area of land on which farming activities are
carried out, and he has hired many workers for farming. A, not only instructs them what to
do but also how to do them. Here, by the test of control, the relation between A and his
employees is established as that of a master-servant.

A master becomes liable in the following situations:

Wrong done as a natural consequence of an act by Servant for Master with
due care.

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If the employee does an act in pursuance of the instructions of the master, then the master
will be held liable for any wrong which arises out of such an act, even if the employee, in
discharging his work, takes all due care.
In Gregory v. Piper(1829) , the defendant and plaintiff had some disputes. Therefore, the
defendant ordered his servant to place rubbish across a pathway to prevent the plaintiff from
proceeding that way. The servant took all care to ensure that no part of it was touching the
part of the plaintiff’s property but with the passage of some time. The rubbish slid down and
touched the walls of the plaintiff, and thus he sued for trespass. The defendant was held liable
despite his servant taking all due care.

Wrong due to Negligence of the Worker

A master is also liable for an act of servant in which he negligently or fails to take due care.
In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P), the
deceased was travelling in a car driven by the manager of the respondent company, and it met
with an accident as a result of which he died. The dependents of the deceased filed a claim,
and the tribunal allowed damages, but on appeal to the High Court, it was set aside because
the accident did not make the respondent company liable. But the Supreme Court, in its
judgment, overruled the decision of the High Court and held that from the facts of the case, it
was clear that the accident had occurred due to the negligence of the manager who was
driving the vehicle in the course of his employment and therefore, the respondent company
was liable for his negligent act.
Wrong by excess or mistaken execution of a lawful authority
To make the master liable in such a case, it has to be shown that: –
1. The servant had intended to act on behalf of his master, which he was authorized to do.
2. The act would have been lawful if it was done in those circumstances the servant
mistakenly believed were true or if the act would have been lawful if done correctly.
In Bayley v Manchester S&L Railway (1873) , a porter of a railway company, while
working, mistakenly believed that the plaintiff was in the wrong carriage even though he was
in the right one. The porter thus pulled the plaintiff, as a result of which the plaintiff sustained
injuries. Here, the Court held the railway company vicariously liable for the actions of the
porter because it was done during his employment. This act would have been proper if the
plaintiff was indeed in the wrong carriage.

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In Anita Bhandari & Ors. v. Union of India, the petitioner’s husband went to a bank.
While entering it, the cash box of the bank was also being carried inside, and as a result, the
security guard, in haste, shot him and caused his death. The petitioner had claimed that the
bank was vicariously liable in the case because the security guard had done such an act in the
course of employment, but the bank had contended that it had not authorized the guard to
shoot. The Court held the bank liable as giving him a gun amounted to allowing him to shoot
when he deemed it necessary, and while the guard had acted overzealously in his duties, it
was still done in the course of employment.

A wrong committed willfully by a servant to serve the purpose of the

master.
If a servant does any act willfully, recklessly, or improperly, then the master will be held
liable for any wrong arising from such action if such an act is done in the course of
employment.
In Limpus v. London General Omnibus Co. (1862) , the driver of the defendant company,
willfully and against the express orders not to get involved in racing or to obstruct other
omnibuses, had driven to impede the selection of the plaintiff. In the case, the Court held that
the defendant company was liable for the driver’s actions because the driver’s act of driving
the omnibus was within the scope of the course of employment.
In Peterson v. Royal Oak Hotel Ltd. (1948) , The plaintiff was a customer who, on being
intoxicated, was refused further drinks by the barman, who was employed under the
respondent. Thus the plaintiff threw a glass at him. The barman took a piece of the mirror and
threw it at him, which hit his eye. The respondent hotel was held liable due to the act of the
barman, who had a master-servant relationship with them.

Wrong by Servant’s Fraudulent Act

A master can also be held liable for any fraudulent act of the servant.
In Lloyd v. Grace Smith & Co. (1912) , the plaintiff was a widow who owned 1000 pounds
as dues on a mortgage and a cottage. She went to the defendant’s manager, a firm of
solicitors, and asked for his advice to get richer. The manager told her to sell her cottage and
call up the mortgage amount. She authorized the manager to sell the property and collect her
money, but he absconded with the money. Thus, she sued the defendant company. It was held
that the defendant was liable for the fraudulent act of the manager because even if a

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fraudulent act is not authorized, the manager was allowed to take her signature. Thus it was
within the course of employment.
Illustration: If A goes to a bank and deposits a check with C, an employee of the bank, and
C fraudulently transfers that amount to his wife’s account. Here for the fraudulent act of C,
the bank will be liable.

Principal- Agent:
When a person allows another person to use his vehicle to perform a task for the owner and
while doing the job, the person causes damages or injury through negligence, in this case, the
owner is liable for the damages through vicarious liability.
For example, A had a recent surgery and was on complete bed rest; he asked B to complete
his insurance work by sending the papers to the company, A lends his car to B during the
drive, B had an accident because of recklessness, in this case, A is liable for B’s accident.
In another situation, after completing A’s work, B used his car for her personal use and met
an accident during her work; in this situation, A is not liable for B’s accident.
This shows that the course of employment of the owner is necessary.

There are no special rules dealing with the liability of the principal for the torts committed by
the agent, and the rules discussed earlier in the context of the master's liability for the torts of
his servant apply here also. "Just as a servant must commit the tort either under the actual
control of his master or while acting in the course of his employment, the act of the agent will
only make the principal liable if it is done within the scope of his authority. The law states
that "an agent will make the principal responsible so long as the agent does the act within the
scope of his authority or under the actual control of the principal." The word "agent" is
commonly used in dealing with the owner's liability when he lends his vehicle to a friend and
in cases relating to vicarious liability for fraud. In the former class of cases, the word
"servant" will be inappropriate; therefore, the word "agent" is used as a matter of usage. In
the latter class of cases, the master is liable when the fraud committed by the servant is within
the scope of his actual or ostensible authority and this rest. The rating is in tune with the
agent’s liability under the law de contract. These cases have already been discussed.' it need
hardly be stated that the principal will be a table for a wrongful act of his agent, which he
authorizes is subsequently ratified by him. This is in addition to his liability for today’s

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committed by the agent within the scope of his agency, even though they are not authorized
or ratified by him.

Partners:
Both under English and Indian law, a firm is liable for torts committed by a partner in the
ordinary course of the firm’s business. Thus, where a partner, acting on behalf of the firm,
induced the clerk of the plaintiff using bribery, and in breach of his duty to the plaintiff, to
communicate secret and confidential information regarding the plaintiff’s business, whereby
the plaintiff suffered loss, it was held that the firm was liable for the injury. Whether the
partner’s act is done in the course of the firm's business is a question to be determined on the
same considerations as those who choose the responsibility of a master for the acts of his
servants. The relation of partners inter se is that of principal and agent; therefore, each partner
is liable for the front of his fellows. Every partner is liable to compensate a third person for
loss or damage arising from the neglect or fraud of any partner in the management of the
firm's business.

5.3 Course of Employment

If an employee causes an injury to another’s property, it is necessary to ascertain whether the
employee acted within the course of employment. The employer is legally responsible for the
damages the employee caused them while performing a job. If a driver for a transportation
firm is involved in an accident with a pedestrian, the pedestrian can sue both the driver and
the firm. An employer can be held liable for a tort committed by an employee operating
within the scope of the employee’s employment. The course of a career encompasses the
actual period of employment and the period during which the employee, while on the
employer’s premises, prepares to commence to depart from work. Employer-sponsored
recreational activities are also considered part of the course of employment when organized,
encouraged, or supported by the employer for business purposes such as promoting
efficiency.
Nevertheless, it is well-recognized under agency law that a principal who authorizes his agent
to commit a tort will be liable for the tortious act of the agent. In this way, the agent can
affect the principal's relations. If the agent is also an employee, the law of vicarious liability
will arrive at the same conclusion because a wrongful act authorized by an employer is
deemed to be done during employment. Thus in cases involving criminal acts are confirmed,

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there is an overlap between authority and duration of work. However, power can, through the
agency, extend liability for the actions of non-employees.

5.3.1 Policy Factors

According to the policy factors that the owner demands of the servant, if the servant commits
any tort during that employment, the owner will be liable. Even if the servant works on his
own will during the job period and the owner benefits from it, then the owner will be
responsible.
For example, if a bus owner allows the driver to take ten passengers with him and he takes 15
passengers with him and commits a tort, the bus owner will not be liable. But if the bus
owner benefitted from the act of servant, then the owner will be responsible.

5.3.2 Test Based on Implied Authorisation

In general, a servant in an emergency has an implied authority to protect his master's
property. In Poland v. John Parr & Sons, a carter who had handed over his wagon and was
going home to his dinner struck a boy whom he suspected, wrongly but on reasonable
grounds, of stealing his master's property. The master was held liable for the consequences on
the principle that a servant has implied authority, at least in an emergency, to protect his
master's property.
"Maybe his action was mistaken, and his force was excessive; he might have pushed the boy
instead of striking him. But that was merely acting more than what was necessary to do an act
he was authorised to do. The excess was insufficient to take action out of the class of
authorised acts, but the lot may be so significant or the show so outrageous as to take It out of
the course for which the master could be made liable. For example, if, in the above case, the
servant, instead of striking the boy, had shot at him, the master could not have been made
liable.
In the case of Riddell v Glasgow Corporation, " it was alleged that one Gilmour, a rate
Collector employed by the Corporation, had defamed the appellant by charging her with
forging a receipt, and the Corporation was vicariously liable. The question was whether the
pleadings disclosed a triable case. In holding in favour of the Corporation, Lord Atkinson
observed:

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There is nothing, in my opinion, on the face of the pleading, to show expressly or by
implication that Gilmour was clothed with authority to express on behalf of the Corporation
to ratepayers any opinion he might form on the genuineness of any receipts which might be
produced to him for payment of rates. It was not shown by the pursuer's pleadings, as I think
it should be, that the expression of such an opinion was within the scope of Gilmour's
employment, from which it follows, on the authorities, that the Corporation is not responsible
for a slander uttered by him in the expression of that opinion.'!
A master, as stated above, is liable for acts done by a servant in the performance of implied
authority derived from the exigency of the occasion, but to fasten the liability on the master, a
state of facts must be proved to show that such demand was present or from which it might be
reasonably be presumed that it was present.

In “Keppel Bus Co Ltd V Sa'ad bin Ahmad” the conductor employed in one of the buses of
the appellant struck a passenger in the eye with his ticket punch breaking his glasses and
causing the loss of sight of the eye. In a suit by the passenger for damages, the facts found
were that the conductor was rude to an elderly Malay lady on the bus, which the plaintiff-
respondent remonstrated. An altercation broke out between them, but other passengers
prevented them from coming to blows. After that, the bus stopped, the lady got off, and other
passengers got in. The Collector began collecting fares and, again, started abusing the
respondent, who stood up and asked the conductor not to use abusive language. The
respondent then sat down, and the conductor struck him after he had done so. The Privy
Council accepted that keeping order amongst the passengers is part of the duties of a
conductor. Still, they did not find any evidence of disorder among the passengers to justify
assault, and the master was held not liable. In the words of Lord Kilbrandon:
The only sign of disorder was that the conductor had gratuitously insulted the respondent, and
the respondent had asked him in an orderly manner not to do it again. She (the Malay lady)
had by now left the bus, and normalcy had been restored, except, apparently, for some
simmering resentment in the conductor, which caused him to misbehave himself. In the story,
if anyone was keeping order on the bus, it was the passengers. The evidence falls far short of
establishing an implied authority to take violent action where none was called for.

Implied authority can be seen in Poland v Parr & Sons. The defendant’s employee believed
some children were stealing the defendant company’s property. He struck one of the children,
seriously injuring him. It was held that although this was an outrageous act, it was still done

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under his employer’s implied authority. The court noted that, in general, employees have an
implied power, in an emergency, to protect their employer’s property (although the bench
also noted that there was a limit if, for example, the employee had shot at the boy, this would
be beyond implied authority). The claim, therefore, succeeded.

5.3.3 Distinction between ‘Authorised Acts’ and ‘Unauthorised Modes.’

Situations will often arise when an employee undertakes an authorised act but does so
unauthorizedly. This example can be seen in Century Insurance v NI Road Transport
Board [1942]. The defendant company employed a driver to deliver petrol. Part of this task
involved transferring the petrol from his lorry to a storage tank at the destination. While
doing this, the employee lit a cigarette, threw the match to the ground, and caused an
explosion. The defendant was held vicariously liable for this conduct. Although the employee
was careless, he was in the process of carrying out an authorised act - delivering petrol.
A distinction can be made between situations in which employees act within their
employment responsibilities (as in Century Insurance) and when they act outside (albeit to
aid their employer). This distinction can be seen in Beard v London Omnibus Co [1900]. A
bus conductor (i.e., not a driver) was at the bus depot and realised that a bus was urgently
needed for its next journey. He could not find the driver, so he drove the bus to the front of
the depot so it was ready to go. In doing so, he injured a mechanic working in the depot. A
complaint was made against the employer bus company. The courts rejected vicarious
liability - the conductor was acting outside of the course of his employment.

London County Council v Cattermole’s (Garages) Ltd [1953]. The employee worked for a
garage, which had petrol pumps outside. Part of the employee’s duty was to assist in the
movement of vehicles around the garage, which included either pushing them by hand, or
guiding their drivers as they undertook tricky manoeuvres. He had been explicitly told not to
drive, being threatened with dismissal on a previous occasion. One day, a van was parked at
the pumps (blocking them) and two lorries were waiting for petrol. The employee jumped
into the van to move it, and drove out into busy Pentonville Road to come back around into
the garage. It was at this point that he hit the claimant’s vehicle. The defendant employer
argued that they should not be held vicariously liable since they had prohibited such
behaviour. The courts rejected this argument - whilst they had prohibited the manner of his
conduct, he was still engaged in his duty - moving vehicles around to ensure the smooth
running of the garage. Vicarious liability was, thus, imposed.
15
It can be seen that unless an employer prohibits an entire category of action, they remain
potentially vicariously liable for the acts of their employees.

Iqbal v London Transport Executive [1973] (another, but different bus conductor case!). A
bus conductor was prohibited from driving - it was explicitly outside of the scope of his
duties. Nonetheless, he decided to move a bus that was blocking a depot but crashed, injuring
another employee. The court rejected vicarious liability on the basis that the conductor’s
conduct was beyond his duties.

The principle that mere authorized mode of doing an authorized act does not go outside the
courts and scope of employment and the master remains violently responsible is illustrated by
the case of State of Maharastra V Kanchanmala Vijaysing Shirke. In this case the accident
happened when a government Jeep while being used on official duty for bringing the
employees of a government office was driven by a clerk with the permission of the driver
who was in charge of the vehicle and who had consumed liquor. On these facts the Supreme
Court held that this was a case where an authorized act was done in an unauthorized manner
and the state government was vicariously liable.

5.3.4 Road Traffic Cases: Detour, Deviation, and Travel to and From Work

1. The appellants in “General engineering services Ltd V Kingston in Saint Andrew

corp” owned certain premises at Kingston ,Jamaica. A fire broke out in the said
premises on which the appellants promptly informed the local fire brigade. The fire
brigade took 17 minutes in reaching the appellants’ premises which was the distance
of 1 1/2 miles . Then normal time for covering this 3 1/2 minutes . By the time the fire
brigade reached, the premises were completely destroyed by fire. The reason why the
fireman took 17 minutes instead of 3 1/2 minutes in covering a distance was that they
were operating a “go slow” policy as part of industrial action. They had remained on
the premises by moving slowly forward, stopping, then moving slowly forward again,
then stopping, and so on until they reached the premises. On these facts, the
question was whether the respondents, as employees of the fire man,vicariously liable
to the appellants or whether , in other words , the firemen acted in the course of
employment.In negativing the liability of the respondents the Privy Council observed:

16
 • Their (the firemen's) unauthorised and wrongful act was to prolong the time taken by
the journey to the scene of the fire, as to ensure that they did not arrive in time to
extinguish it,before the building and its contents were destroyed. Their mode and
manner of driving, the slow progression of stopping and starting, was not so
connected with the authorised act, that is driving to the scene of the fire as
expeditiously as reasonably possible, as to be a mode of performing that act.
• Here the unauthorised and wrongful act was done, not in furtherance of the
employer’s business, but in furtherance of the employees’ industrial dispute to bring
pressure on the employers to satisfy their demands. Such a conduct was held to be a
very negation of carrying out some act authorised by the master, albeit in a wrongful
and unauthorised mode.

2. In Beard v London General Omnibus Co,the plaintiff was injured by the negligent
driving of the conductor of an omnibus, who, at the end of a journey, on his own initiative,
and in the absence of the driver, took charge of the omnibus and drove it round through some
neighbouring bye-streets apparently with the intention of turning it round, to be ready for the
next journey. It was held that the masters were not liable for the negligence of the conductor
in driving the omnibus as he was not authorised to drive the vehicle. In this case the driver
also did not authorise or permit the conductor to drive he vehicle and apparently he was not
negligent in leaving the vehicle in charge of the conductor. It could not, therefore, be said that
the driver was negligent in driving the chicle. As regards the conductor, the act of driving the
vehicle was outside his scope of employment for it was clearly an act which he was not
authorised to perform and so his negligence could not make the master liable.
3. In contrast in “Rickets V Thomas” Tilling ltd where the master was held liable, the
facts were that the conductor of an omnibus drove the omnibus with permission of the driver
who was sitting beside him for the purpose of turning it in the right direction for the next
journey and in that process by his negligence the vehicle mounted a foot pavement and
injured a person. It will be noticed that in this case the master's liability was for the
negligence of the driver whose wrongful act in permitting the conductor to drive the vehicle
was an unauthorised mode of performing the authorised act of driving the vehicle for the
master's business. Both these cases were referred to by the Supreme Court in “Sitaram
Motilal Kalal V Santanuprasad Jaishankar Bhatt”, where the facts were that the owner had
entrusted his car to a driver for plying it as a taxi. The driver lent the taxi to the cleaner for

17
taking it to the RT.O's office for driving test. The accident happened when the cleaner was
driving while giving the driving test. The driver was then not in the vehicle. It is clear from
the flats that at the time the accident happened, the car was not being used as a taxi for the
owner’s business. The car was then engaged in the work of the cleaner which had no
connection whatsoever with the owner's business. The driver in lending the car to the
Cleaner for taking a driving test did an act which he was not employed to perform and thus
clearly acted beyond the scope of his employment which was to drive the car as a taxi. The
owner was, therefore, held not liable. The result would have been the same had the driver
gone for a picnic or taken the car for giving a joy ride to his friends or had the owner himself
lent the car to the driver or cleaner for the latter's private work. In all these cases , use of the
vehicle would be outside the course and scope of employment.

5.4 Contribution between Employer and Employee

An employer is vicariously liable for the acts of an employee as long as the employee’s acts
are in the scope of employment. Thus, when an employee acts to further the employer’s
business, the employer will be vicariously liable (even for intentional torts). However, if the
employee commits an intentional tort for purely personal reasons unrelated to the
employment, most jurisdictions will not hold an employer vicariously liable. 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 authorized or be so connected with an authorized act that it
can be considered a mode, though an improper mode, of performing it. Courts sometimes
distinguish between an employee's "detour" vs. "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. Employer will
be held liable if an employer does an authorized act in an unauthorized way Generally, an
employer will not be held liable for assault or battery committed by employees, unless the use
of force was part of their employment (such as a police officer), or they were in a field likely
to create friction with persons they encountered . However, the employer of an independent
contractor is not held vicariously liable for the tortious acts of the contractor unless the
contractor injures someone to whom the employer owes a non-delegable duty of care, as
when the employer is a school authority and the injured party is a pupil. Employers are also
liable under the common law principle represented in the Latin phrase, "qui facit per alium

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facit per se" (one who acts through another acts in one's own interests). That is a parallel
concept to vicarious liability and strict liability, in which one person is held liable in criminal
law or tort for the acts or omissions of another.

Case;
Mohamud v. WM Morrison Supermarkets plc [2016]

Facts:The claimant entered a supermarket petrol station and was rudely refused service by
the tortfeasor (Morrison’s employee.) The claimant was subjected to threatening and racist
abuse and was followed to his car. The tortfeasor opened the passenger door to issue more
threats and physically assault the claimant.

Judgment: In accordance with the close connection test, the supermarket as the owner of
the tortfeasor are vicariously liable. Responding to customers was an aspect of the
tortfeasor’s job role and thus his abuse was closely connected. Following the claimant to the
car was an unbroken sequence of events associated with his employment. His actions did not
become unconnected as soon as he was outside, he was still working, following up on his
interaction, and his threats related to the claimant’s possible return to the defendant’s
premises. Being a criminal act also did not prevent the employers being vicariously liable.

5.5 Liability for the Torts of Independent Contractors

The employer appoints an independent contractor to turn out a piece of work.
He is different from a servant in as much as a servant is a person who works under the control
and supervision of the master. For the acts of an independent contractor, the general rule is
that the employer is not liable. There are several exceptions. These are the non-delegable
duties.
According to Winfield, the question is always whether the damage is caused due to the
employer's breach of duty. The duties of the employer are divided into delegable and non-
delegable. This means the employer himself must perform the non-delegable functions. But if
he delegates such a function to an independent contractor, the employer himself becomes
liable.
There are several non-delegable duties:

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 I. Delegation may be a breach of duty, and the employer may be negligent in giving
instructions or information to the independent contractor. In a case. a gas company
had no authority to interfere on the Highways. The Independent contractor's servant
negligently left a heap of stone over which the plaintiff fell and was injured. Held, the
employer was liable.
II. Obligations of the employer are to provide a competent staff of men, adequate
material, and a proper system of an effective supervisor. If he does not follow these,
the employer becomes liable.
III. When the employer personally interferes and gives directions to the independent
contractor, the employer becomes personally liable.

5.6 Liability of the parents for the torts of their children

Parents can be held liable for their own negligent acts, such as failure to supervise a child, or
failure to keep a dangerous instrument such as a handgun outside the reach of their children.
Guardians are not personally liable for torts committed by minors under their charge.
But guardians can sue for personal injuries to minors under their charge on their behalf.

5.7 Liability of State for the Acts of Its Servants in India

State liability refers to the liability of the state arising from the acts of omission/ commission
committed by its servants. It has been governed by written or unwritten laws and is not a
static concept. The State’s liability for the tortious acts of its servants, known as the tortious
liability of the State, makes it liable, voluntarily or involuntarily, for acts of omission and
commission, and puts it before the Court of Law in a claim for unliquidated damages to such
acts.

Case;

1.Municipal Corporation of Delhi v. Subhagwanti

Facts: Subhagwanti died because of the collapse of the Clock Tower at Chandni Chowk,
which belonged to Municipal Corp. of Delhi.3 Legal heirs of Subhagwanti filed 3 different
suits for damages in trial Court alleging MCD of being negligent.The clock tower was never

20
examined seriously to check for defects, making it unsafe. Trial Court decided in favor of
Subhagwanti. MCD appealed in High Court. High Court also held MCD liable for negligence
and used res ipsa loquitur. High Court relied on evidence by BS Puri, Retired Chief Engineer,
and Mr. Chakravarty, Municipal Engineer. Both of them said the condition of the top floor
was poor (exceeding its life span).Mr. Puri was of opinion that if examination had been done
on time, it could have prevented the fall. The mortar used also lost its cementing
property.This Appeal is by MCD in Supreme Court against the decision of HC and the Trial
Court.

Judgement: In these circumstances, the Supreme Court held that the fall of Clock Tower is
an inference of negligence on the part of the defendant. Since the defendants could not prove
the absence of negligence on their part, they were held liable. And also, a Clock tower in the
heart of the city will need extra care and if it falls and causes injury to several people, the
defendants will but obviously be held liable for the same under this principle. In such cases,
direct evidence of proving negligence is not important, but the plaintiff has to establish a
prima facie case, either by direct or circumstantial evidence of the defendant’s negligence.

2.Municipal Corporation of Delhi v. Sushila Devi

On 18th August, 1964, in the evening, late Suresh Chander and his brother Ramesh Chander
were going on a scooter from their office to their residence. The deceased was driving the
scooter and his brother was riding his pillion. While they were passing a blind relief building,
branch of the neem tree suddenly broke down and fell on the head of the deceased. His head
was crushed and he was dead the following day. Deceased was survived by a widow, three
minor sons and a minor daughter and his mother. All the six brought a suit for damages
claiming Rs.3 lacs. A learned Single Judge sitting on the Original side of the High Court held
the Municipal Corporation of Delhi liable for damages in torts and granted a decree of Rs.
90,000/- by way of compensation payable to the widow and the children of the deceased.

The Court observed that “it is well-settled that award of compensation against the State is
an appropriate and effective remedy for redressal of an established infringement of a
fundamental right under Article 21, by a public servant”, and observed that a responsible
Municipal Corporation consisted for the precise purpose of providing the basic public goods
cannot shirk off its responsibility by citing financial constraints.

5.7.1 General Observations

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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:

• Respondeat superior (let the principal be liable).

• Quifacit per alium facit per se (he who acts through another does it himself).
In India, while there is no clear law dealing with the vicarious liability of the State, Article
300 of the Indian Constitution specifies that the union of India or the Government of State
can sue and be sued like any ordinary person. Vicarious Liability of state is also known as the
tortious liability of the Government. State’s liability for the tortious actions of its employees
is called as tortious liability of the State. State is liable for the acts of negligence, wrongful
execution and omission or commission either voluntarily or involuntarily.

5.7.2 Legislative Provisions

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 their 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. In ancient India, under the Hindu jurisprudence, it was
an undisputed principle that no one is exempted from the operation of law. This liability to
equal punishment extended even to the king, relative of the king, a judge or an ordinary
citizen. The rule of law was considered supreme and binding on everyone alike. The
important functions of the king were concerned with protection of people, punishment of
crimes and maintenance of dharma or social order. In the medieval Indian history the
personal liability of officers for their wrongs was more vogues with evidences showing
equality between the ruler and the ruled subject. Only when the king considered it proper to
undertake the burden of public officer, it was then the state treasury used to pay the
compensation. The principle of personal liability of public servants for wrongs done to
citizens is already a part of Indian law based on English case laws. Presently State liability in

22
India is defined by the Article 300(1) of the Constitution that originated from Section 176 of
the Government of India Act, 1935.
5.7.3 Judicial Decisions ;
5.7.3.1 Sovereign and Non-Sovereign Function

Sovereign functions are those actions of the state for which it is not answerable in any court
of law. For instance, acts such as defence of the country, raising and maintaining armed
forces, making peace or war, foreign affairs, acquiring and retaining territory, are functions
which are indicative of external sovereignty and are political in nature. Therefore, they are
not amenable to jurisdiction of ordinary civil court. The State is immune from being sued, as
the jurisdiction of the courts in such matters is impliedly barred. The distinction between
sovereign and non-sovereign functions was considered at some length in N. Nagendra

Rao v. State of AP. All the earlier Indian decisions on the subject were referred to. The
court enunciated the following legal principles, in its judgment: In the modern sense, the
distinction between sovereign or non-sovereign power thus does not exist. It all depends on
the nature of the power and manner of its exercise.

❖ N Nagendra Rao v State of A.P.

FACTS;
The appellant, N. Nagendra Rao carried on a business and deals in fertilizers and food grains
under a license issued by the appropriate authorities. On 11 August, 1975 the Police Officer,
Vigilance Cell visited its premises and seized a huge stock of fertilizers, food grains and non-
essential goods. On 31 August, 1975 the report submitted by the Inspector, the District
Revenue Officer(hereinafter as DRO), in the exercise of powers under Section 6 -A of the
Act, directed the fertilizers to be placed in the custody of the Assistant Agricultural
Officer(hereinafter as AAO) for distribution to needy persons and the food grains and non-
essential goods in the custody of the Tehsildar. The role of Tehsildar was to dispose of the
food grains and non-essential goods immediately and deposit the sale proceeds in the
Treasury. But, the AAO did not take any steps to dispose of the fertilizers. Therefore, the
appellant made applications on 17 September, 1975 before the DRO and on 11 February,
1976 before AAO, no steps were being taken the fertilizers shall deteriorate and shall be
rendered useless causing a huge loss to the appellant. The request was made by the appellant

23
for diverting the fertilizers either to the place mentioned by the appellant as the demand was
more there or to release it in its favour for disposal and deposit of the sale price. But neither
any order was passed by the DRO nor any action was taken by AAO. On, 29 June, 1976 the
proceedings under section 6- A of the Act were decided and the stock of food grain was
confiscated as the appellant’s license had been cancelled. After repeated requests, the
collector ordered that the goods be returned to the appellant. However, the AAO did not
comply with the orders. After repeated consultations with various ministers, when the
appellant finally obtained the stock back but it was spoiled both in quantity as well as in
quality.

JUDGEMENT ;
The trial court held that the state while performing its duty under a statute has been negligent
and issued a decree for the payment of Rs. 1,06,125 towards the damaged stock along with
the interest at the rate of 6%.

The HC of A.P. struck down the order of the trial court and decided the case on the basis of
the ratio of Kasturilal case.

The appellant appealed in the SC against the judgment passed by the HC of A.P. The Apex
Court held that if the officers can be sued personally for negligence in discharge of public
property, there is no rationale for the proposition that even if the officer is liable the state
cannot be sued. The Apex Court dealt with the concept of sovereign immunity, meaning
sovereignty rests with the people, the state cannot claim any immunity. Thus, the State of A.P
was directed to pay the appellant the amount of Rs. 1,06,125 as decided by the trial Court
along with the interest at the rate of 6%.

Non Sovereign Functions – means functions that can be carried out by the private
individual without any delegation of power by the government. If a person commits a tort
while performing non-sovereign act state will not be held vicariously liable for such act of its
employee to whom such power was delegated.
Example :- Functions relating to trade, business and welfare act

5.7.3.2 Pre-Constitutional Decisions & Post-Constitutional Decisions

1. Pre-Constitutional

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1. Peninsular & Oriental Steam Navigation Company v Secretary:
In the course of their employment, a servant of the plaintiff Company was travelling from
Garden Beach in Calcutta in an exceeding carriage pulled by a pair of horses belonging to the
plaintiff and driven by the coachman. While the bus was travelling by Kidderpore Dockyard,
which may be a government dockyard overseen by the Superintendent of Marine, certain
government employees were riveting a piece of iron funnel casing. It weighed around 300
kilogrammes, was eight or nine feet long, and stood about two feet tall. The lads carrying the
cargo walked along the centre of the road. The coachman issued a warning to the youngsters
carrying the iron. The lads sought to induce their way out of the way, those ahead trying to go
to one side, and those behind attempted to travel to the opposite side. As a result of this, you
lost time, which caused the carriage to stop for them, even though they had left the centre of
the road.They were startled by the carriage’s proximity and abruptly dropped the iron and
ran. The iron landed with a respectable clap, which roused the aggrieved party’s ponies, who
rushed forward savagely and fell on the iron, injuring at least one pony. The action was
launched by the injured party Company to recuperate Rs. 350/ – due to the injury, and the
lawsuit against the Secretary of State was afterwards brought on the basis that a government
worker concluded the irresponsible exhibition.

Judgment;
The plaintiffs contend that the Secretary of State was given the benefit of the doubt.
Furthermore, the East India Company was not the sovereign, although having some royal
powers granted to them, and hence could not claim immunity in every instance.

2. Secretary of State v. Hari Bhanji :

The respondents had bought a batch of salt in Bombay and sent it off to certain ports in
Madras after paying the requisite excise duty as specified under the law in force at the time.
However, while this shipment was in transit, the Customs and Excise Act of 1787, was
amended, as a result of which, the rate of excise duty on salt was increased. Upon arrival at
the port, the defendant merchant was directed to pay the difference. After many objections,
the merchant made the payment unwillingly and under compulsion, only to obtain the
possession of the batch of salt. Subsequently, he filed a suit for the recovery of the same. In
this case, the Court held that the State will be as liable towards its subjects as any ordinary
25
employer would be.In this case, the Madras High Court held that State immunity was
confined to acts of State. It was defined that Acts of State, are acts done in the exercise of
sovereign power, where the act complained of is professedly done under the sanction of
municipal law, and in exercise of powers conferred by law. The mere fact that it is done by
the sovereign powers and is not an act which could possibly be done by a private individual
does not oust the jurisdiction of the civil court.
However, in Secretary of Secretary of State v. Cockraft, making or repairing a military road
was held to be a sovereign function and the Government was held not liable, for the negligence
of its servants in the stacking of gravel on a road resulting in a carriage accident that injured
the plaintiff.

2. Post Constitutional

1. State of Rajasthan v. Vidyawati

The respondents filed a suit for the damages made by an employee of a State and the case
questioned whether the State was liable for the tortious act of its servant – The Court held that
the liability of the State in respect of the tortious act by its servant within the scope of his
employment and functioning as such was similar to that of any other employer.
In the case, the claim for damages was made by the dependants of a person who died in an
accident caused by the negligence of the driver of a jeep maintained by the Government for
official use of the Collector of Udaipur while it was being brought back from the workshop
after repairs. The Rajasthan High Court took the view-that the State was liable, for the State is
in no better position in so far as it supplies cars and keeps drivers for its Civil Service. In the
said case the Hon’ble Supreme Court has held as under:
“Act done in the course of employment but not in connection with sovereign powers of the State,
State like any other employer is vicariously liable.”
In the aforesaid case, the Hon’ble Apex Court while approving the distinction made in Steam
Navigation Co.’s case between the sovereign and non-sovereign function observed that the
immunity of crown in the United Kingdom was based on the old feudalistic notions of Justice,
namely, that the King was incapable of doing a wrong. The said common law immunity never
operated in India.

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2. Kasturi Lal v. State of U.P.
The ruling, in this case, was given holding that the act, which gave rise to the present claim for
damages, has been committed by the employee of the respondent during the course of its
employment. Also, that employment belonged to a category of sovereign power. This removed
any liability on the part of the state. In this case, the plaintiff had been arrested by the police
officers on a suspicion of possessing stolen property.
Upon investigation, a large quantity of gold was found and was seized under the provisions of
the Code of Criminal Procedure. Ultimately, he was released, but the gold was not returned, as
the Head Constable in charge of the maalkhana, where the said gold had been stored, had
absconded with the gold. The plaintiff thereupon brought a suit against the State of UP for the
return of the gold or alternatively, for damages for the loss caused to him. It was found by the
courts below, that the concerned police officers had failed to take the requisite care of the gold
seized from the plaintiff, as provided by the UP Police Regulations.
The trial court decreed the suit, but the decree was reversed on appeal by the High Court. When
the matter was taken to the Supreme Court, the court found, on an appreciation of the relevant
evidence, that the police officers were negligent in dealing with the plaintiff’s property and
also, that they had not complied with the provisions of the UP Police Regulations.
However, the Supreme Court rejected the plaintiff’s claim, on the ground that “the act of
negligence was committed by the police officers while dealing with the property of Ralia Ram,
which they had seized in exercise of their statutory powers. The power to arrest a person, to
search him and to seize property found with him, are powers conferred on the specified officers
by statute and they are powers which can be properly categorized as sovereign powers. Hence
the basis of the judgment in Kasturi Lal was two-fold – The act was done in the purported
exercise of a statutory power. Secondly, the act was done in the exercise of a sovereign
function.
The supreme court ruled that the state was not liable as police officers were exercising
sovereign functions.

3. Satyawati Devi v. Union of India

The Delhi High Court held that the carrying of a hockey team in a military truck to
the Air Force Station to play a match is not a sovereign function. In this case, an Air
Force vehicle was carrying hockey team of Indian Air Force Station to play a match.

27
After the match was over, the driver was going to park the vehicle when he caused
the fatal accident by his negligence.
It was argued that it was one of the functions of the Union of India to keep the army
in proper shape and tune and that hockey team was carried by the vehicle for the
physical exercise of the Air Force personnel and therefore the Government was not
liable. The Court rejected this argument and held that the carrying of the hockey
team to play a match could by no process of extension be termed an exercise of
sovereign power and the Union of India was therefore liable for damages caused to
the plaintiff.

5.7.3.3 Cases Involving Fundamental Rights

1.Rudal Shah v. State of Bihar

FACT:

The case concerns a man who had been imprisoned for a time longer than his sentence. The
petitioner filed a habeas corpus petition seeking his release from jail on the grounds that his
detention following his release by the Sessions Court on June 3, 1968, was unconstitutional.
The petitioner, Rudul Sah, was arrested for the murder of his wife. After serving his sentence,
he was acquitted by the Sessions Court in Muzaffarpur, Bihar, on June 3, 1968. However, on
October 16, 1982, he was released from prison following a 14-year sentence. The petitioner
sought compensation for his wrongful detention by filing a writ petition of habeas corpus
with the Supreme Court under Article 32. He also requested state-funded medical treatment
and an ex-gratia payment for his recovery. The petition was presented to the court on
November 22nd, but he had already been released from prison. In the context of
supplementary relief, however, the court issued a show-cause notice to the state. The jailor
prepared an affidavit for the State in which he put forward two points. First, even after he was
acquitted, the Extra Sessions Judge in Muzaffarpur issued an order ordering the petitioner to
be held in prison until further orders from the State Government and the I.G. (Prisons), Bihar.
Second, he was deemed incompetent to stand trial by the Sessions Court when the order was
issued. When he was later evaluated by a civil surgeon, he was found to be normal. In
February 1977, the civil surgeons’ report was forwarded to the law department, and in

28
October 1982, it was issued in accordance with a letter from the legal department dated
October 14, 1982.

JUDGEMENT:-
The Judge issued the petition, concluding the imprisonment of Mr. Rudul Sah (the petitioner)
beyond the term of imprisonment was completely illegal. Article 32 empowers the apex court
to issue orders and implement the writs if the fundamental rights mentioned under part III of
a person are violated.This Court's jurisdiction is restricted to restraining unlawful detention,
Article 21, which guarantees the right to liberty.Compensation is a curative for the
wrongdoing of instrumentalities operating in the public good and utilizing the State's
authorities to hide.
Moreover, someone could not be detained for a longer length of time if he had been mentally
ill just at the time he was freed. The rationale is simple. Even a madman has rights under the
law during the course of his or her trial. The Court determined that the State's conduct was
disproportionate and lacked supporting facts. As a consequence, the Court found the
petitioner's imprisonment to be unreasonable.
Moreover, someone could not be detained for a longer length of time if he had been mentally
ill just at the time he was freed. The rationale is simple. Even a madman has rights under the
law during the course of his or her trial. The Court determined that the State's conduct was
disproportionate and lacked supporting facts. As a consequence, the Court found the
petitioner's imprisonment to be unreasonable.The Tribunal then assessed if it was appropriate
to grant the plaintiff's application for interim relief founded on its entitlement to relief. Article
21, which guarantees individual freedom, would be worthless if the Court were limited to
ordering the release of unlawful detainees without addressing their plight.

2.Saheli, A Women’s Resources v. Commissioner Of Police

In the case where a 9 year old boy died after being beaten by the Indian Police. The 9 year
old was, Naresh, who succumbed to his injuries, sustained while clinging to his mother while
she was being assaulted by the police.

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Kamlesh Kumari, his mother was attacked by Shambu Dayal and others. They beat Kamlesh
Kumari, tore her clothes and molested her. Her nine year old son clung to his mother to
protect her when Lal Singh took him away and forcibly threw him on the floor. Lal Singh
also asked Shambu Dayal to beat Naresh. Kamlesh Kumari was dragged away to the police
station and a criminal case was imposed upon her of trespass. She was sent to Tihar
Jail.Kamlesh Kumari on her release came back and found that her child, Naresh was in a very
bad condition. On the advice of the doctors, Naresh was admitted to Ram Manohar Lohia
Hospital on November 18, 1987. On November 26, 1987, Naresh died in hospital.The State
was held liable for the death of nine-year-old child by Police assault and beating. Delhi
Administration was ordered to pay compensation of Rs. 75000/-. The significance of this case
is that the Delhi Administration was allowed to recover money from those officers who are
held responsible for this incident.

3.Nilabati Behera vs State of Orissa

FACTS

• In the instant case, a letter was sent by Smt. Nilabati Behera to the Supreme Court stated
that her twenty-two-year-old son, Suman Behera had died in police custody after being
inflicted with several injuries.
• The honorable court took suo moto action and converted it into a writ petition under
Article 32 of the Indian constitution.
• The petitioner claimed compensation for the violation of her son’s fundamental right to
life guaranteed under Article 21.
• The Orissa police had arrested Suman Behara for investigation involving the offence of
theft and he was detained at the police outpost.
• The very next day, his dead body was found near the railway track. The lacerations on his
body indicated an unnatural death.
• The admitted facts are, that Suman Behera was taken into police custody on 1.12.1987 at
8 a.m. and he was found dead the next day on the railway track near the Police Outpost
Jeraikela, without being released from custody, and his death was unnaturally caused by
multiple injuries sustained by him.

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 • The burden is, therefore, clearly on the respondents to explain how Suman Behera
sustained those injuries which caused his death.

DECISION:

• The decision of this case, therefore, made sure that the state could no longer escape
liability in Public law and had to be compelled to pay compensation when it committed
such gross violations of one’s fundamental rights and very basic human rights.
• The liability of the State of Orissa in the present case to pay the compensation cannot be
doubted and was rightly not disputed by the learned Additional Solicitor General.
• It would, however, be appropriate to spell out clearly the principle on which the liability
of the State arises in such cases for payment of compensation and the distinction between
this liability and the liability in private law for payment of compensation in an action on
tort.

5.8 Uncertainty of Law

In the concept of vicarious liability, there is a lot of ambiguity and uncertainty in the law due
to different point of views. There is no certainty in this law due to the variations in facts from
case to case. The law of torts is an uncodified law which is why courts cite past cases while
passing a judgment with respect to torts.

5.9 Need for Legislation

Due to the uncertainty and ambiguity of law, with respect to the concept of vicarious liability,
there is a need for a proper implementation of laws with respect to vicarious liability where a
person can be held liable for the acts committed by another.

5.9.1 Law Commission of India First Report: Liability of the State in Tort
The liability of the Union and the States to be sued for tortious acts is uncertain. Article 300
of the Constitution of India regulates the liability of the state to be sued. The Law
Commission referred to a large number of legislations from different countries in order to

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determine the liability of the state for tortious activities. As noticed by the Law Commission
of India in its First Report, there is an urgent need for legislation in respect of liability of the
Union and the States for tortious acts.
General principles of tortious liability as referred to in the proposals of the Law Commission
of India in its first report.
• Liability of master to third parties for torts committed by servants.
• Liability of an employer for torts committed by an independent contractor,his servants
or agents.
• Liability of principal for torts of his agents.
• Liability of master to servant.
• Common law duties attaching to ownership, occupation, possession, or control of
property.
• Absolute liability for inherent dangerous things.
• Things not inherently dangerous.
The laws relating to the liability of the State in respect of contracts and property etc., is not in
doubt. But, the law relating to the liability of the State for tortious acts is in a state of
uncertainty and therefore an appropriate legislation is essential.

Other cases related to Vicarious Liability;

1. SKX v Manchester City Council [2021]

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