11/14/23, 9:39 PM Vicarious Liability in Tort

Subject-Wise Law Notes Law Of Torts Vicarious Liability In Tort

Vicarious Liability in Tort

Law Of Torts Subject-Wise Law Notes

LawBhoomi ● April 19, 2023

https://lawbhoomi.com/vicarious-liability-in-tort/ 1/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Harry Potter Gema bracelet Tom and Jerry Sunglass

Hedwig

Share & spread the love

In India, Vicarious Liability in Tort refers to a legal concept in which an individual

or entity is held responsible for the tortious acts committed by another person.
The concept of vicarious liability in tort is based on the principle of “respondeat
superior” which means “let the master answer” in Latin.

This principle holds that the employer is responsible for the actions of his/her
employees or agents, who are acting within the scope of their employment or
agency. This principle is important as it provides a means of holding an employer
accountable for the acts of his/her employees, who may cause harm to others.

https://lawbhoomi.com/vicarious-liability-in-tort/ 2/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Contents [ hide ]
1. Meaning of Vicarious Liability in Tort
2. Relations in which Vicarious Liability arises
2.1. Employer-Employee Relationship
2.2. Principal-Agent Relationship
2.3. Partnership Relationship
2.4. Parent-Child Relationship
2.5. Independent Contractor Relationship
3. Conditions for Vicarious Liability in Tort
3.1. Employer-Employee or Principal-Agent Relationship
3.2. Tortious Act Committed Within the Scope of Employment or Agency
3.3. Connection Between the Tortious Act and the Employment or Agency
3.4. No Personal Motive on the Part of the Employee or Agent
4. Exceptions to Vicarious Liability in Tort
4.1. Frolic and Detour
4.2. Intentional Torts
4.3. Independent Contractors
4.4. Acts Outside the Course of Employment or Agency
4.5. Acts of a Borrowed Servant
5. Tests for determining the master-servant relationship
5.1. Hire and Fire Test
5.2. Direction and Control Test
5.3. Multiple Test
6. Respondeat Superior
7. Various ways in which the liability of Master arises
7.1. Wrong done as a natural consequence of an act by Servant for Master with
due care
7.2. Wrong due to Negligence of Worker
7.3. Wrong by excess or mistaken execution of a lawful authority
7.4. Wrong committed willfully by a servant with the intention of serving the
purpose of the master
7.5. Wrong by Servant’s Fraudulent Act
8. Independent contractor
8.1. Conclusion

Meaning of Vicarious Liability in Tort

Under Indian law, vicarious liability in tort refers to a situation in which an
employer is held responsible for the tortious acts committed by his/her
https://lawbhoomi.com/vicarious-liability-in-tort/ 3/22
11/14/23, 9:39 PM Vicarious Liability in Tort

employees. The term “tort” refers to any civil wrong that causes harm or injury to
another person, and the term “vicarious liability” refers to the legal responsibility
that an employer has for the actions of his/her employees.

Tom and Jerry Passage Moon Phase

watch

For example, if an employee of a company causes injury to someone while

performing his/her duties, the company may be held liable for the employee’s
actions, even if the company did not directly cause the harm. The reason for this
is that the employee was acting within the scope of his/her employment, and the
company has a legal obligation to ensure that its employees act in a responsible
manner.

Relations in which Vicarious Liability arises

Vicarious liability in tort arises in specific relationships where one party (the
employer or principal) is held responsible for the tortious acts committed by
another party (the employee or agent). These relationships include:

Employer-Employee Relationship
Under the doctrine of vicarious liability, an employer can be held responsible for
the tortious acts of its employees. For example, if an employee of a company
negligently causes an accident while driving a company vehicle, the company
may be held liable for any resulting damages. This is because the employee was
acting within the scope of their employment at the time of the accident.

Principal-Agent Relationship

https://lawbhoomi.com/vicarious-liability-in-tort/ 4/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Similar to an employer-employee relationship, a principal can be held liable for

the tortious acts committed by their agent. An agent is someone who acts on
behalf of the principal and is authorized to do so. For example, if an agent of a
real estate company commits fraud while representing the company in a
transaction, the company may be held liable for the agent’s actions.

Harry Potter Ballpoint pen Sunglasses Luna pend

Hedwig

Partnership Relationship
In a partnership, each partner can be held vicariously liable for the tortious acts
committed by their fellow partners. This means that if one partner commits a tort
while acting on behalf of the partnership, all partners may be held responsible for
any resulting damages.

Parent-Child Relationship
In certain circumstances, a parent can be held vicariously liable for the tortious
acts committed by their child. For example, if a minor child causes a car accident
while driving a family vehicle, the parent who owns the vehicle may be held
responsible for any resulting damages.

Independent Contractor Relationship

In general, an employer is not held vicariously liable for the tortious acts
committed by an independent contractor. This is because an independent
contractor is not an employee and is generally considered to be operating as a
separate business entity.

Conditions for Vicarious Liability in Tort

https://lawbhoomi.com/vicarious-liability-in-tort/ 5/22
11/14/23, 9:39 PM Vicarious Liability in Tort

In order for vicarious liability in tort to apply, certain conditions must be met.
These conditions include:

Dextera bracelet and Dream Rock watch Gem

anklet

Employer-Employee or Principal-Agent Relationship

As mentioned earlier, vicarious liability in tort arises in specific relationships
where one party is held responsible for the tortious acts committed by another
party. This includes employer-employee or master-servant and principal-agent
relationships.

It is important to note that the relationship must be a legal one, meaning that the
employee or agent must be working under a contract or agreement with the
employer or principal.

Tortious Act Committed Within the Scope of

Employment or Agency
The tortious act committed by the employee or agent must have been
committed within the scope of their employment or agency. This means that the
act must have been done while the employee or agent was performing their
duties or acting on behalf of the employer or principal.

If the act was committed outside the scope of employment or agency, the
employer or principal may not be held liable.

https://lawbhoomi.com/vicarious-liability-in-tort/ 6/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Harry Potter Tom and Jerry Aladdin Magic Carpet Constel

Hedwig Ride Limited Edition cocktail r

Connection Between the Tortious Act and the

Employment or Agency
There must be a connection between the tortious act and the employment or
agency. This means that the act must have been committed in furtherance of the
employer’s or principal’s business or interests.

For example, if an employee is tasked with making deliveries for a company and
causes an accident while driving a company vehicle, the employer may be held
liable because the accident occurred while the employee was performing duties
related to the employer’s business.

No Personal Motive on the Part of the Employee or

Agent

The tortious act committed by the employee or agent must not have been done
for personal reasons or motives.

For example, if an employee commits a theft during work hours but the theft was
not related to the employer’s business, the employer may not be held liable.

https://lawbhoomi.com/vicarious-liability-in-tort/ 7/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Baron bracelet Constella cocktail ring Crysta

Exceptions to Vicarious Liability in Tort

While vicarious liability in tort is a well-established legal doctrine, there are

certain exceptions where an employer or principal may not be held liable for the
tortious acts committed by an employee or agent. These exceptions include:

Frolic and Detour

If an employee engages in an activity that is outside the scope of their
employment or agency, the employer may not be held liable for any resulting
tortious acts. This is known as the “frolic and detour” exception. For example, if
an employee is tasked with making deliveries for a company and, during the
course of their duties, takes a personal detour to run errands, any tortious acts
committed during the detour may not be the responsibility of the employer.

Intentional Torts
Generally, employers or principals are not held liable for intentional torts
committed by their employees or agents. This includes acts such as assault,
battery, and defamation. However, if the employer or principal knew or should
have known about the employee’s propensity for such behavior, they may still be
held liable.

Independent Contractors
As previously mentioned, an employer or principal is generally not held
vicariously liable for the tortious acts committed by an independent contractor.

https://lawbhoomi.com/vicarious-liability-in-tort/ 8/22
11/14/23, 9:39 PM Vicarious Liability in Tort

However, there are exceptions to this rule, such as when the contractor is
engaged in inherently dangerous activities or when the employer or principal has
retained control over the contractor’s work.

Crystalline Wonder watch Harry Potter Hedwig Aladdin M

Limi

Acts Outside the Course of Employment or Agency

If an employee or agent commits a tortious act outside the course of their
employment or agency, the employer or principal may not be held liable. For
example, if an employee gets into a fight with a stranger while on a lunch break,
any resulting tortious acts would likely be outside the scope of employment and
therefore not the responsibility of the employer.

Acts of a Borrowed Servant

When an employee is borrowed or loaned to another employer, the borrowing
employer may be held liable for any tortious acts committed by the employee
while under their control. This is known as the “borrowed servant” rule. However,
if the employee is under the control of their original employer, that employer
would still be held liable for any resulting tortious acts.

Tests for determining the master-servant relationship

Determining whether a master-servant relationship exists is crucial in determining

whether vicarious liability in tort applies. Courts have developed several tests to
determine whether a master-servant relationship exists, including:

Hire and Fire Test

https://lawbhoomi.com/vicarious-liability-in-tort/ 9/22
11/14/23, 9:39 PM Vicarious Liability in Tort

The hire and fire test is a common law test used to determine whether a master-
servant relationship exists. Under this test, if an employer has the power to hire
and fire an employee, the employer is considered the master and the employee is
considered the servant. The rationale behind this test is that the power to hire
and fire an employee implies a level of control over the employee’s work.

Harry Potter Crystal Shimmer Angelic necklace Gema brac

Hedwig ballpoint pen

This test is relatively simple, but it may not be determinative in all cases.

For example, an employer may hire an independent contractor for a specific

project but not have the power to fire them until the project is completed. In
such cases, the hire and fire test would not establish a master-servant
relationship.

Direction and Control Test

The direction and control test is another common law test used to determine
whether a master-servant relationship exists. Under this test, a master-servant
relationship exists if the employer has the right to direct and control the
employee’s work. This includes the ability to give instructions, the power to
supervise the work, and the authority to determine the methods and procedures
used in performing the work.

The direction and control test is often used in cases where the employee is an
independent contractor. In such cases, the employer may not have the power to
hire and fire the contractor, but they may still have the ability to direct and
control their work.

For example, an employer may hire an independent contractor to paint a house

but provide detailed instructions on the type of paint to use, the colour scheme,
and the time frame for completion. In such cases, the employer would be

https://lawbhoomi.com/vicarious-liability-in-tort/ 10/22
11/14/23, 9:39 PM Vicarious Liability in Tort

considered the master, and the independent contractor would be considered the
servant.

Multiple Test
The test for distinguishing between a contract of service and a contract for
service involves determining whether an individual is an employee or an
independent contractor. In Ready Mixed Concrete v Minister of Pensions and
National Insurance (1968) 2 QB 497, the court laid out three conditions that
must be met for a contract of service to exist:

The worker agrees to provide their skills and work to the employer in
exchange for wages or other compensation.
The worker agrees to be subject to a certain degree of control by the
employer in the performance of their work, indicating a master-servant
relationship.
The other provisions of the contract must be consistent with the notion of a
contract of service.

This same test was reaffirmed in The Management of Indian Bank v. The
Presiding Officer.

Other important factors may also be considered when determining the master-
servant relationship, including who owns the tools used in the work, whether the
employee is paid on a daily or monthly basis, and other relevant factors.

Gema bracelet Dream Rock watch Crysta

Respondeat Superior

https://lawbhoomi.com/vicarious-liability-in-tort/ 11/22
11/14/23, 9:39 PM Vicarious Liability in Tort

The doctrine of respondeat superior is the most common way in which the
liability of a master arises. Respondeat superior means “let the master answer.”
Under this doctrine, a master is held liable for the torts committed by a servant if
the tort was committed in the course of the servant’s employment.

This is also known as the “course of employment” test. If the tort was committed
outside the course of employment, the master will not be liable.

Various ways in which the liability of Master arises

In all of these scenarios, the master may be held liable under the doctrine of
vicarious liability in tort, as long as the wrongful act was committed by the
servant in the course of their employment.

Wrong done as a natural consequence of an act by

Servant for Master with due care

Under this scenario, the master may be held liable for the wrongful act of their
servant if the act was done in the course of employment and in a careful manner,
but still resulted in harm to a third party.

For example, if a delivery driver who was driving carefully and within the speed
limit accidentally hits a pedestrian while making a delivery, the master may be
held liable for the harm caused to the pedestrian. This is because the driver was
acting in the course of employment, even though they were being careful.

Wrong due to Negligence of Worker

https://lawbhoomi.com/vicarious-liability-in-tort/ 12/22
11/14/23, 9:39 PM Vicarious Liability in Tort

If the servant was negligent in their actions, and this negligence caused harm to a
third party, the master may be held liable for the harm caused. For example, if a
construction worker was negligent in securing a scaffold, and the scaffold
collapses and injures a pedestrian, the employer may be held liable for the harm
caused by their employee’s negligence.

Wrong by excess or mistaken execution of a lawful

authority
Under this scenario, the master may be held liable if the servant exceeded their
lawful authority, or if they mistakenly executed their lawful authority in a manner
that caused harm to a third party.

For example, if a security guard uses excessive force to apprehend a shoplifter,

and the shoplifter is injured as a result, the employer may be held liable for the
harm caused by their employee’s excessive use of force.

Wrong committed willfully by a servant with the

intention of serving the purpose of the master
If the servant committed a wrongful act with the intention of serving the purpose
of the master, the master may be held liable for the harm caused.

For example, if a security guard is instructed by their employer to forcibly remove

a peaceful protester from a public space, and the guard uses excessive force and
injures the protester, the employer may be held liable for the harm caused by the
employee’s willful act.

https://lawbhoomi.com/vicarious-liability-in-tort/ 13/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Wrong by Servant’s Fraudulent Act

If the servant commits a fraudulent act in the course of their employment, the
master may be held liable for the harm caused.

For example, if a bank teller embezzles money from a customer’s account, the
bank may be held liable for the harm caused by their employee’s fraudulent act.

Independent contractor
An independent contractor is a person who provides services to a business or
individual as a self-employed individual, rather than as an employee.
Independent contractors are typically hired to perform a specific job or task, and
are not subject to the same level of control and supervision as an employee.

Vicarious liability typically does not apply to independent contractors, as they are
not considered employees of the hiring party. Rather, independent contractors
are responsible for their own actions and are generally liable for any harm or
damages they cause while performing their work.

However, there are some situations where an employer may still be held
vicariously liable for the actions of an independent contractor. For example, if the
employer provides inadequate supervision or training to the independent
contractor, or if the employer directs the independent contractor to perform a
task that results in harm to a third party, the employer may be held liable for the
contractor’s actions.

Additionally, if an employer holds out an independent contractor as its own

employee, the employer may be held liable for the contractor’s actions under the
doctrine of “apparent authority.” This occurs when a third party reasonably
believes that the contractor is an employee of the employer, based on the
employer’s actions or representations.

Conclusion
Vicarious liability in tort arises when specific conditions are met, including the
existence of an employer-employee or principal-agent relationship, the tortious
act is committed within the scope of employment or agency, a connection

https://lawbhoomi.com/vicarious-liability-in-tort/ 14/22
11/14/23, 9:39 PM Vicarious Liability in Tort

between the act and the employer’s or principal’s business, and no personal
motive on the part of the employee or agent.

Attention all law students!

Are you tired of missing out on internship, job opportunities and law notes?

Well, fear no more! With 45,000+ students already on board, you don't want to
be left behind. Be a part of the coolest legal community around!

Join our WhatsApp Groups (Click Here) and Telegram Channel (Click Here)
and get instant notifications.

PREVIOUS POST NEXT POST

Order 21 Rule 54 CPC General Defences in Tort

You might like

https://lawbhoomi.com/vicarious-liability-in-tort/ 15/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Setting Aside of an ex-parte Order Requirements for a Valid Meeting

Differences Between Judicial

Review and Judicial Activism

Search LawBhoomi Search

https://lawbhoomi.com/vicarious-liability-in-tort/ 16/22
11/14/23, 9:39 PM Vicarious Liability in Tort

https://lawbhoomi.com/vicarious-liability-in-tort/ 17/22
11/14/23, 9:39 PM Vicarious Liability in Tort

https://lawbhoomi.com/vicarious-liability-in-tort/ 18/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Law Notes

Case Briefs

Law Notes for All Subjects

Administrative Law Notes

Arbitration & Conciliation Act Notes

Law of Contracts Notes

Constitutional Law Notes

Corporate Law Notes

https://lawbhoomi.com/vicarious-liability-in-tort/ 19/22
11/14/23, 9:39 PM Vicarious Liability in Tort

CRPC Notes

Cyber Law Notes

Environmental Law Notes

Law of Evidence Notes

Family Law Notes

Human Rights Law Notes

International Law Notes

Indian Partnership Act Notes

Indian Penal Code Notes

Intellectual Property Rights Notes

Jurisprudence Notes

Law of Torts Notes

Sale of Goods Act Notes

Transfer of Property Act Notes

Other Laws Notes

Leave a Reply
Your email address will not be published. Required fields are marked *

Name * Email * Website

https://lawbhoomi.com/vicarious-liability-in-tort/ 20/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Add Comment *

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Post Comment

About LawBhoomi

Started by NLU grads, LawBhoomi is a portal that provides information on the latest
internships, jobs, legal opportunities, law notes, career guidance, study materials, and books
for various exams like the judiciary, CLAT PG, AIBE, CLAT UG, etc. Apart from all these,
interviews and internship experiences help students explore more opportunities in law.

Privacy Policy | Terms of Service

Important Statistics

Site viewership: 1.5M+ per month

Instagram followers: 10,000+ (Click Here)

LinkedIn followers: 28,000+ (Click Here)

WhatsApp groups: 27,000+ members (Click Here)

https://lawbhoomi.com/vicarious-liability-in-tort/ 21/22
11/14/23, 9:39 PM Vicarious Liability in Tort

Telegram Channel: 6,500+ members (Click Here)

Contact Info

You may reach out to us by dropping an email to:

contact@lawbhoomi.com or lawbhoomi@gmail.com

Advertise with Us

Copyright © 2022 LawBhoomi.

https://lawbhoomi.com/vicarious-liability-in-tort/ 22/22