Vicarious Liability

Presented By
Dr. Jaswinder Kaur
Assistant Professor
RGNUL, Patiala
 Meaning of doctrine of Vicarious Liability

• The word ‘vicarious’ derived from Latin word vicar which literally means
acting as a substitute on behalf of someone else as a delegate.
• In other words, liability of a person for the tort of another.
• As a general rule, a person is liable for his own wrongful act and does not
incur liability for the wrongful act done by others. But in certain
exceptional circumstances a person may be held liable for the wrongful act
done by some other person. It is called as Vicarious liability rule. Under
this rule, there are certain kind of relationship which may give rise to
certain liabilities:
1. Principal agent relationship
2. Liability of partners
3. Master servant relationship
4. Liability of parents or guardian for their children/wards
5. Liability of the State for the tort of its employees.
 Basis of Vicarious Liability

Liability is based on two maxims

1. Qui Facit Par Alium Facit Per Se means “ a person who does an act through
another is deemed in law to do it himself”. In other words, A person who gets
his work done through another is liable for all consequences from that act.
2. Respondent Superior means “Let the master be liable”. The master is liable
for all such acts of his servants which he does in the course of his
employment, as the master is capable of meeting the liability.
Two reasons: Master largest Pocket and also ability to pass burden of liability
through insurance.
3. Modern View: Principle of Social Security.
justice Fredrick Pollock has said:
“I am responsible for the wrongful acts of my servant or agent because he
does my act and therefore it is my duty to see that he must do my act keeping
in view the security of others.”
 Liability of Principal for the wrongful acts of his
agent
• Main Points:
1. An act is authorized by the Principal and done by agent.
2. Authority given by principal may be express or implied.
3. An agent has done such an act in the ordinary course of the performance
of his duties.
4. Both can be made liable for the same wrongful act. They are considered as
joint tortfeasors and their liability is joint and several.
5. Plaintiff has a choice either to sue the principal, or the agent, or both of
them.
• Cases:
Lloyd v. Grace Smith & Co., (1912) AC 716.
State Bank of India v. Shyma Devi, AIR 1978 SC 1263.
Trilok Singh v. Kailash Bharti, AIR 2005 Ori 36.
 Master’s liability for torts committed by the
servant
• Essentials of Master’s liability:
1. The Tort was committed by the ‘Servant’.
2. The Servant committed the tort in the ‘course of his employment’.
• Meaning of Servant:
A servant is a person employed by another to do work under the directions
and control of his master. It implies ordering the servant what is to be
done and how and when it is to be done. It is also called as contract of
service.(Test of control)
Four test for determining the control of service:
1) The power of master to select his servant.
2) The power to pay wages or other remuneration.
3) Master’s right to control in the method of doing the work by the servant.
4) Master’s right to suspend and dismiss his servant.
Difference between Servant and Independent
Contractor
Servant
• A servant is an agent who is
subject to the control and
supervision of his employer
regarding the manner in
which the work is to be
done.
• A servant is bound by the
orders of his master.
• In vicarious liability master
is liable for wrongful act of
servant only.
Independent Contractor
• An independent contractor
is not subject to such
control. He is his own
master and exercise his own
discretion.
• Independent Contractor is
bound by the terms of his
contract.
• Master is not liable for
wrongful act of Independent
contractor.
 Liability of the employer for the act of an
independent contractor
• Employer not liable
Caselaw: Morgan v. incorporated central council (1936)
• Liability of Vehicle owners : cases of accidents caused by mechanics,
repairers or owners of workshop during test drive of vehicle entrusted to them
by the owners of the vehicles for repairs.
Davinder singh v. Mangal singh, AIR 1981P&H 53.
• Exceptions: In exceptional cases, an employer can be made liable for the
wrongs of an independent contractor.
1. If an employer authorizes the doing of an illegal Act, or subsequently ratifies
the same. In this case employer himself is a party to the wrongful act.
2. In strict liability rule (Rylands v. Fletcher)
3. Liability of employer for the dangers caused on or near the highway.
4. When the tort results in the breach of a master’s Common Law duties to his
servant. No defence to master that he was acting through an independent
contractor.
 Servant not under the control of his master
(Hire and Fire rule)
• Traditional Trend : Control Test
• Modern Trend : Hire and Fire test means the person who employs another
person and is his pay master, only that person has the power to fire
(discharge ) his servant. (Organisation Test)
For example: For the wrongful act committed by doctor, surgeon, engineer,
employed in Government department, their government is liable.
• In hospital cases, earlier hospital authorities were held not to be vicariously
liable for the negligence of the professional staff involving professional
care and skill, because they lacked the power to control over them. That
position no more good and now the authorities are liable for the
professional negligence of their staff.
Cases:
Subhagmal jain v. State of Rajasthan &others AIR 2006 Raj. 66.
Dr. Alice George &others v. Laxmi, AIR 2007 Mad 130.
 Course of employment

• An act is said to be done in the course of employment when:

1. The master has authorised the servant to do a wrongful act
2. Wrongful and unauthorised mode of doing an act authorised by the
master.
Illustrations:
1. If I authorize a servant to drive and he drives negligently,
2. I authorize a servant to deal with the clients and he deal with them
fraudulently.
3. Theft by servant
4. Mistake of servant
5. Negligence of servant. These acts comes within the course of
employment and master can be made liable.
 Cases where master is not liable for the act of
servant
• For deliberate wrongful acts of the servant: where master has done the wrongful act
for his selfish interest, benefit or amusement.
Case: State bank of India v. Shyama devi
• Theft by servant: where servant is doing something which is not at all concerned with
the master’s business.
• Is going to place of work and return home after work covered within the scope of
master’s employment?
To answer this questions, there are conflicted decisions by the courts. This issue involves
mainly three aspects:
1. After working hours, he is not treated as working within the course of employment.
2. Where the employer has assigned to the employee or servant some work which he
should perform while coming or going back from workplace, the employer will be
vicariously liable.
3. Where the servant is paid travelling allowance as a ‘commercial traveller’ and he is
required to go to some place for business purpose, while going to or coming back from
his work place to home, he will be deemed to be acting within the course of
employment.
Thanks