VICARIOUS LIABILITY: A LEGAL STUDY

SUBJECT: TORTS 1.6

SUBMITTED BY:

SHUBHAM KASHYAP KALITA

UID: SM01107048

YEAR: 2017-2022

SEMESTER: 1ST SEM

FACULTY IN CHARGE:

MS. MOUNMI BORGOHAIN

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

 TABLE OF CONTENTS

1. INTRODUCTION

1.1 OVERVIEW

1.2 LITERATURE REVIEW

1.3 SCOPE AND OBJECTIVES

1.4 RESEARCH QUESTIONS

1.5 RESEARCH METHODOLOGY

2. CONCEPT OF VICARIOUS LIABILITY

2.1 BACKGROUND OF VICARIOUS LIABILITY

3. VICARIOUS LIABILITY BY RELATION

4. PRINCIPLE OF VICARIOUS LIABILITY

4.1 INDEPENDENT CONTRACTOR

4.2 EXCEPTIONS

5. EXCEPTIONS OF VICARIOUS LIABILITY

5.1 ACTS OUTSIDE THE COURSE OF EMPLOYMENT

5.2 HOSPITAL CASES

5.3 GIVING LIFT TO UNAUTHORISED THIRD PARTY

6. CONCLUSION

7. BIBLIOGRAPHY
 1. INTRODUCTION
1.1 OVERVIEW

The doctrine of vicarious liability lies at the heart of all common law systems of tort law. It
represents not a tort, but a rule of responsibility which renders the defendant liable for the torts
committed by another. The classic example is that of employer and employee: the employer is
rendered strictly liable for the torts of his employees, provided that they are committed in the
course of the tort feasor’s employment. In such circumstances, liability is imposed on the
employer, not because of his own wrongful act, but due to his relationship with the tort feasor.
The claimant is thus presented with two potential defendants: the individual tort feasor and a
third party, likely to be with means and/or insured and usually clearly identifiable in
circumstances where it may be difficult to identify the actual culprit in question.

Any study of vicarious liability cannot therefore avoid consideration of its role in determining
who ultimately bears the burden of paying compensation. Nevertheless, it is a principle at odds
with tort’s traditional focus on general principles of individual responsibility. Traditionally
described as ‘the law of civil wrongs’, a basic formulation of tort law may be summed up as
rendering the tort feasor liable for committing a wrong which has caused harm to another. A
more sophisticated analysis may be stated in terms of corrective justice: ‘Corrective justice is the
idea that liability rectifies the injustice inflicted by one person on another.’ Vicarious liability
breaks this causal link. It is, as Lord Nicholls commented in the House of Lords, ‘at odds with
the general approach of the common law. Normally common law wrongs, or torts, comprise
particular types of conduct regarded by the common law as blameworthy. In respect of these
wrongs the common law imposes liability on the wrongdoer himself. The general approach is
that a person is liable only for his own acts.’ Neither is it consistent with the core principles of
fault found in civilian systems.

Yet, this is a topic which has attracted surprisingly little theoretical interest, despite the fact that
it runs counter to the basic principle of tort law which maintains that a person should only be
held accountable for the wrongs he or she commits against another. In examining the role of
vicarious liability in these post-industrialised States, a number of points should be noted. First, it
is important to clarify the question of terminology. The term ‘vicarious liability’ derives from the
common law, and civilian systems will generally refer to ‘liability for the acts of others’. This
latter term is, however, more inclusive and will extend to strict liability in both contract and tort,
and even liability for actions not amounting to torts. On this basis, this book will use the term
‘vicarious liability’ in a neutral transsystemic sense to signify rendering one person/body strictly
liable for the torts of another in the law of tort. Liability in contract law will not be covered,
except where it is necessary to distinguish it from the law of tort. 1

1
Paula Giliker Excerpt, What is vicarious liability? , Cambridge University Press, 978-1-107-62748-2 - Vicarious
Liability in Tort: A Comparative Perspective .
 1.2 LITERATURE REVIEW

WINFIELD AND JOLOWICZ , TORT , EIGHTEENTH EDITION, W.V.H

ROGERS
In this book the author says that vicarious liability is a frequent feature of legal
systems and those which donot have in its “pure” form, but which in theory require
some fault in the employer, have tended to go to considerable lengths to create a
liability without fault in practice. The author also says that the expression “vicarious
liability” signifies the liability which D may incur to C for damages caused to C by
the negligence or other tort of A. The commonest instance of this in modern law is
the liability of an employer for the torts of his servants done in the course of their
employment. The relationship required is the specific one, that arising under a
contract of service, and the tort must be referable to that relationship in that sense that
it must have been committed by the servant in the course of his employment.2

PREETI SINGH, LEGAL SERVICES INDIA, VICARIOUS LIABILITY:

In this article the author depicts that vicarious liability is the liability of one person
for the acts of the another person. In the field of torts it is considered to be an
exception to the general rule that a person is liable for his own acts only. The author
also says that in a case of vicarious liability both the person at whose behest the act is
done as well as the person who does the act are liable. Thus, Employers are
vicariously liable for the torts of their employees that are committed during the course
of employment.3

PAULA GILIKER, VICARIOUS LIABILITY IN TORT: A COMPARATIVE

PERSPECTIVE, CAMBRIDGE UNIVERSITY PRESS
In this article the author says that vicarious liability is a doctrine which is a “cuckoo”
in the nest. To commit vicarious liability there need to be a specific type of
relationship, the existence of a wrongful act and the requirement that the victim be
2
Winfield and Jolowicz, Tort, W.V.H Rogers
3
Preeti Singh, Legal Services India, Vicarious Liability
 harmed within the ambit of the specific relationship. The author describes various
relationships like master-servant, partners and principal-agent in different chapters. It
also depicts the role of independent contractor and also the greatest challenge to the
idea of acting in the course of employment.4

DR. R.K BANGIA, LAW OF TORTS, ALLAHABAD LAW AGENCY

In this book the author expresses that in general, a person is liable for his own
wrongful acts and one does not incur any liability for the acts done by others. But in
certain cases, however, vicarious liability, that is the liability of one person for the act
done by another person, may arise. The author also describes the specific
relationships. When an agent commits a tort in the course of performance of his duty
as an agent, the liability of the principal arises for such a wrongful act. The principal
is liable vicariously because of the principal-agent relationship between the two.5

1.3 SCOPE AND OBJECTIVES

The present paper tries to study and concept of Vicarious Liability. The scope of this very
project is limited with the findings of the constituents and causes of Vicarious Liability.

The objective deals with the finding of the legal concept of Vicarious Liability and its
constituent and finding out the causes for Vicarious Liability. The main objectives are –
i. To discuss (in brief) the concept of vicarious liability and its principle.
ii. To study the subject matter of Test of Control and its position in India.
iii. Discuss and analyze various case law related to test of control for establishing
vicarious liability

1.4 RESEARCH QUESTIONS

4
Paula Giliker, Vicarious liability: A comparative perspective, Cambridge University press, ISBN 978-0-521-76337-0
5
Dr. R.K Bangia, Law of Torts, Allahabad Law agency, Law publishers
 1. What is Vicarious Liability ?
2. What are the principles and ingredients for Vicarious Liability ?
3. What are some of the exceptions in case of Vicarious Liability ?

1.5 RESEARCH METHODOLOGY

The researcher conducted mixed type of methodology. Researcher conducted doctrinal

type of research to collect proper data and gather appropriate information about Vicarious
Liability. Various article pertaining to the subject have been immensely helpful in
guiding the research.
To ensure a quality study of the subject matter, the researcher collected the Secondary
type of data. Though primary data is very valuable and precious; still the importance of
the secondary data cannot be overlooked. So, the researcher collected secondary data
through various books, articles, journals and other sources.

CHAPTER 2. CONCEPT OF VICARIOUS LIABILITY

Generally, a person is liable for his own wrongful acts and one does not incur any liability for the
acts done by others. In certain cases, however, vicarious liability, that is the liability of one
person for the act of another person, may arise. In order that the liability of A for the act
done by B can arise, it is necessary that there should be certain kind of relationship between A
and B, and the wrongful act should be, in certain way, connected with that relationship.
The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.

So Vicarious Liability deals with cases where one person is liable for the acts of others. In the
field of Torts it is considered to be an exception to the general rule that a person is liable for his
own acts only. Reasons for vicarious liability. Several reasons have been advanced as
a justification for the imposition of vicarious liability:
(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access
to resources via insurance, has in some cases had an unconscious influence on the development
of legal principles.
(2) Vicarious liability encourages accident prevention by giving an employer a financial interest
in encouraging his employees to take care for the safety of others.
(3) As the employer makes a profit from the activities of his employees, he should also bear any
losses that those activities cause. The one reason for fixing his liability is historical. The
personality of the servant is deemed to be merged with the master and this principle has survived
the era of slave emancipation where servant were treated as slaves and they did not had any
individual personality for identity.
Deeper pocket theory- The second reason for fixing liability on master is based on public policy
and master is supposed to be in better position to pay for loss cause to the aggrieved party
through insurance for the tortuous act of his servant because of his deeper pocket.
The third reason is expressed in the twin maxim of “respondent superior” which means let the
master be liable and “Qui facit per alium facit per se” which means that the act of the agent
is the act of the principle.6

‘ Vicarious’ is derived form Latin term ‘vice’ i.e., in the place of. By this phrase we mean the
liability of a person for the tort of another in which he had no part. It may arise under the
common law or under statute.

Several reasons have been advanced as a justification for the imposition of vicarious liability:

(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access
to resources via insurance, has in some cases had an unconscious influence on the development
of legal principles.

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

6
R.K Bangia, Law of torts, Allahabad Law Agency
(3) As the employer makes a profit from the activities of his employees, he should also bear any
losses that those activities cause.7

1.1 BACKGROUND OF VICARIOUS LIABILITY

If a master choose to give orders to his servant, no one can fail to understand why he should
be held liable for the consequences of their commission.' Nor is the case in substance
different when he ratifies his servant's act. To stamp what is done for him with the seal of his
approval is tacitly, but obviously, to accept the act as his own ; and that is true no less where
the ratification is implicit, than where it is expressly made manifest. No one, however,
deems it necessary to take objection to liability which is consequent upon a general
negligence. In cases such as these, where the master is directly involved, it is essential to any
scheme of law that he should be held liable for such damage as his servant may cause. 8

CHAPTER 3. VICARIOUS LIABILITY BY RELATION

7
Preeti Singh, Legal Services India, Vicarious Liability
8
Harold J. Laski, The basis of Vicarious Liability, The Yale Law Journal Company, Inc.,
http://www.jstor.org/stable/786314
In Vicarious liability, in order to make A liable or the tortuous act of B, then it is necessary
that there should be a certain kind of relationship between A and B, and the tortious act
should be a certain way connected with that relationship. The common examples are-

1. Principal and Agent

Where one person authorizes another to commit a tort, the liability for that will be not only of
that person who has committed it but also of that who authorized it.It is based on the general
principle “ Qui facit per alium facit per se” which means that the act of the agent is the act of
the principle. The authority to do the act may be express or implied. So, when an agent
commit a tortious act in the ordinary course of employment, then principle will be made
liable for the same. For any act authorized by the principal and done by the agent, both of
them are liable. Their liability is joint and several.
In Lloyd v. Grace Smith $ co. , Mrs. Llyod who owned two cottages was not satisfied with
the income therefrom, approached the office of defendant , a firm of solicitors and she was
advised to sell the two cottages and invest money in better way. The agent of the company
played a fraud and made her sign documents which was in really a gift deed in the name of
the agent himself. He then disposed of the property and misappropriated the proceeds. He
had acted solely for his personal benefit without the knowledge of the principle. It was held
that since the agent was acting in the course of his apparent authority, the principle was liable
for the fraud.
2. Partners
The relationship as between partners is that of principle and agent. The rules of law of
agency apply in case of their liability also. For the tort committed by any partner in the
ordinary course of business of the firm, all the other partners are liable to the same extent as
the guilty partner. The liability of each partner is joint and several. Whether the acts of the
partner is one done in the course of the business of the firm is a question to be determined on
the same considerations as those which determine the responsibility of a master for the acts
of his servants.
The relation of partners inter se is that of principal-agent, and therefore, each partner is liable
for the act of his fellows. Every partner is liable to make compensation to third person in
respect of loss or damage arising from the neglect or fraud of any partner in the management
of the business of the firm. Some cases related to this-
1. Mclaughin v. Pryor, (1942)
2. Poland v. Johan Parr & Sons,(1927)
3. S. 26, Indian Partnership Act, 1932
In Hamlyn v. Houston & CO.,One of the two partners of the defendant’s firm, acting within
the general scope of his authority as a partner, bribed the plaintiff’s cleark and induced him
to make a breach of contract with his employer by disclosing secreats relating to his
employer’s business. It was held that both the partners of the firm were made liable for the
wrongful act committed by only of the partner.
3. Master and Servant
The common law principle states that a person is made liable for the tortious act of his
servant but the question is why a master should be made liable for the wrongful act of his
servant during the course of employment. The principle of master’s liability for the wrongful
act of his servant is based on following reason-
  The one reason for fixing his liability is historical. The personality of the servant is
deemed to be merged with the master and this principle has survived the era of slave
emancipation where servant were treated as slaves and they did not had any individual
personality for identity.
 Deeper pocket theory- The second reason for fixing liability on master is based on public
policy and master is supposed to be in better position to pay for loss cause to the aggrieved
party through insurance for the tortuous act of his servant because of
his deeper pocket.
 The third reason is expressed in the twin maxim of “respondent superior” which means let
the master be liable and “Qui facit per alium facit per se” which means that the act of the
agent is the act of the principle. Consequently the act of the servant becomes the act of the
master.
In the words of Lord Chelmsford: “It has long been established by law that a master is liable
to third persons for any injury or damage done through the negligence or unskillfulness of a
servant acting in his master’s employ. The reason of this is, that every act which is done by
servant in the course of his duty is regarded as done by his master’s order, and, consequently
it is the same as if it were master’s own act”.9
For the liability of the master to arise, the following two essentials are to be present:
1) The tort was committed by the “servant”
2) The servant committed the tort in the “course of employment”10

Who is a servant ?
A servant is a person employed by another to do work under the directions and control of his
master. As a general rule, master is liable for the tort of his servant but he is not liable for the
tort of an independent contractor. It, therefore, becomes essential to distinguish between the
two.
In Limpus v. London general omnibus Co., The driver of an omnibus, seeking to disturb
the omnibus of another company, drove his own across the path of another. His employers
had furnished him and other drivers with a card saying they ‘must not on any account race
with or obstruct another omnibus.’ Baron Martin had directed the jury that, if the defendant’s
driver did it for the purposes of his employer, the defendants were liable: but if it was an act
of his own, and in order to effect a purpose of his own, the defendants were not responsible.
The jury found for the plaintiff.
It was held that the employer was liable for the ensuing accident despite written instructions
to the driver to exercsie care. The employer was liable because the injury resulted from an act
done by the driver in the course of his service and for his master’s purposes; it was not done
by the servant for his own purposes, but for his master’s purposes.
Lord Blackburn said: ‘A footman might think it for the interest of his master to drive the
coach, but no one could say that it was within the scope of the footman’s employment, and
that the master would be liable for damage resulting from the wilful act of the footman in
taking charge of the horses.11

Other relations:

9
Asif tufal, Vicarious Liability, The Law Teacher, www.lawteacher.net/Tort-law
10
Winfield and Jolowicz, Tort, W.V.H Rogers
11
R.K Bangia, Law of torts, Allahabad Law Agency
 a) Company and director:
The ordinary principles of agency apply to companies which are consequently
liable for the negligence of their servants, and for torts committed by them in
the course of their employment. Directors are personally liable for any torts
which they themselves may commit or direct others to commit, although it
may be for the benefit of their company.

b) Guardian and ward:

Guardians are not personally liable for the torts committed by minors under
their charge. But guardians can sue for personal injuries.12

12
Ratanlal and Dhirajlal, The Law of Torts, 26th edition
 CHAPTER 4. PRINCIPLES OF VICARIOUS LIABILITY

The law is settled that a person is vicariously liable for the acts of his servant acting in the
course of his employment. Unless the act is done in the course of employment. Unless the act
is done in the course of employment , the servant’s act does not make the employer liable. In
other words, the master’s liability to arise, the act must be a wrongful act authorized by the
master or a wrongful and unauthorized mode of doing some act authorized by the master. If
the servant, at the time of accident, is not acting within the course of employment but is
doing something for himself, the master is not liable.
Generally, the legal concept of vicarious liability tends govern the accidents by giving the
employer some financial interest in accidents that happen in his business (Cheeseman, 2009).
In this regard, it gives responsibility to the employer to cater for any loss that happens to the
employee while discharging his mandate. The principle of vicarious liability recognizes that
the wealth of the employer should have some interest in protecting the damages that may
arise while the employees are discharging their mandate.

The expression of vicarious liability signifies liabilities which the person running his own
business may incur to the employee for damage caused by the employee for negligence
caused by the employer. It is not necessarily that the employer running his own business
might not have participated in any way in the commission of the tort, nor than a day owed in
law by the employer to the employee shall have been broken. Generally, whatever is required
is that the employer should stand in particular relationship to the employee and that the tort
from the employee should be referable in a certain manner to their working relationship. In
most cases, the concept of vicarious liability arises from the contract of service with the
commonest instance being the liability of the master for the torts of his servants. For the
principle of vicarious liability to arise, there must be a clear relationship between the two
people in their working contract. It is worth noting that vicarious liability does not arise from
the contract of services (independent contractor), but it arises from the contract of services. In
this regard, the person running his own business is liable for torts committed by the servant,
but is not liable for the tort committed by independent contractors.13

Course of employment:
The commonest cases these days of vicarious liability are those where a master is held liable
for negligence of his servant in driving his vehicle in the course of employment and where
otherwise the servant was obviously acting in the course of employment. A master can be
made liable as much for unauthorized acts as for the acts he has authorized. However, for an
unauthorized act, the liability arises if that is within the course of employment, i.e. it is a
wrongful mode of doing that what has been authorized.
In National Insurance Co., Kanpur v. Yogendra nath , the owner of a car, authorized his
servants and orderlies to look after the car and to keep the same dusted while he was out of
town for a long period. One of the servants took the car to a petrol pump for getting the tyres
inflated and for checking the oils, etc, and negligently knocked down and injured two boys,
aged about 11 years and 13 years, who were going on a cycle. The act of the servant in this
case was held to be within the course of employment of his master, for which the master was

13
The principles of vicarious liability and how it applies to the employer wishing to start his own business,
http://www.academicscope.com/principles-vicarious-liability-applies-employer-wishing-start-business/
 liable, and the master’s insurers, therefore, could be made liable for to indemnify the master
for the sum awarded against the owner.14

4.1 INDEPENDENT CONTRACTOR

An independent contractor is one who undertaken to produce a given result without being
in any way controlled as to the method by which he attains that result. In actual execution of
the work he is not under the order or control of the person for whom he does it, but uses his
own discretion in things not specified beforehand. A servant is an agent who works under the
supervision, control and direction of his employer. This is the traditional distinction between
an independent contractor and a servant and is now subject to many qualifications. If an
independent contractor as distinguished from a servant is employed to do some work and in
the course of the work he or his servants commit any tort, the employer is not answerable.
Employer’s right to inspect works to decide as to the quality of materials and workmanship,
to stop the works or any part thereof at any stage, to modify and alter them, and to dismiss
disobedient or incompetent workmen employed by the contractor, does not render him liable
to third persons for the negligence of the contractor in carrying out the work.

Liability of the employer for the acts of an independent contractor:

As a general rule, the master is liable for the torts committed by his servant, but an employer
is not liable for the torts committed by an independent contractor employed by him.
In Morgan v. incorporated central council, the plaintiff, while he was on a lawful visit to
the defendant’s premises, fell down from an open lift shaft and got injured. The defendant
had entrusted the job of keeping the lift safe and in proper order to certain independent
contractors. It was held that for this act of negligence on the part of the independent
contractors in not keeping the lift in safe condition, the defendants could not be made liable.15

4.2 EXCEPTIONS
The general rule that an employer is not liable for the cats of an independent contractor
is subject to some exceptions. In following exceptional cases, an employer can be made
liable for the wrongs of the independent contractor :
i. If an employer authorizes the doing of an illegal act, or subsequently
ratifies the same, he can be made liable for such an act.the real reason
for such a liability is that the employer himself is a party to the
wrongful act, along with the independent contractor, and, therefore, he
is liable as a joint tort feasor.
ii. An employer is liable for the acts of an independent contractor in cases
of strict liability. In Rylands v. Fletcher, the employer could not escape
the liability for the damage caused to the plaintiff, when the escape of
water from a reservoir got which was constructed by the defendant
from an independent contractor, flooded the plaintiff’s coalmine.

14
Dr. R.K. Bangia, Law of Torts, Allahabad Law agency, Law Publishers
15
Ratanlal and Dhirajlal, The Law of Torts, 26th edition
 iii. Similar is the position in case of extra hazardous work which has been
entrusted to an independent contractor, and in a case of breach of
statutory duty. In Maganbhai v. Ishwarbhai, the chief trustee of the
properties of a temple called upon an electric contractor to illegally
divert the electric supply given for agricultural purpose, to the temple
for one month, for providing facility of lighting and mike in the
temple. The job was executed in a palpably obvious hazardous
manner, and without informing the electricity board. After about a
fortnight, the service line was snapped and the agriculturist, who was
working in his field, got injured by electric current. It was held that the
trustee, who got the hazardous job done, as well as the owner of the
field, from whose meter and with whose knowledge such connection
was taken, were liable.
iv. The liability of the employer also arises for the dangers caused on or
near the highway. In Tarry v. Ashton, the plaintiff was injured by the
fall of a lamp, overhanging the footway adjoining the defendant’s
house. The lamp was attached to his house by the defendant through
some independent contractors. It was held that it was the defendant’s
duty to see that the lamp was reasonably safe there and he could not
escape his liability by getting the job done through independent
contractors.
v. If the wrong caused to the plaintiff is nuisance in the form of
withdrawal of support from the neighbor’s land, the defendant would
be liable irrespective of the fact the act causing the said damage was
done by an independent contractor.
vi. When the tort results in the breach of a master’s common law duties to
his servant, he would be liable for the same and it is no defence that
the master was acting through an independent contractor.16

CHAPTER 5. EXCEPTIONS OF VICARIOUS LIABILITY

16
Dr. R.K. Bangia, Law of Torts, Allahabad Law agency, Law Publishers
 There are certain exceptions of vicarious liability where the master may not be
liable for the act of the servant.

5.1 ACTS OUTSIDE THE COURSE OF EMPLOYMENT

Though master has control over the manners in which work is to be done but in certain
cases when a servant does any act which is not in the course of master’s business, the same is
deemed to be outside the course of employment. In Beard v. London General Omnibus
Co.,14 at the end of the journey, the driver of the bus went to take dinner. During the
temporary absence of the driver, the conductor drove the bus for next journey without the
knowledge of driver and met with an accident. In this case master was not made liable
because the act done by the conductor was outside the course of employment. So it is clear
that when the wrongful act by the servant has not been done in the ordinary course of his
master’s business, the act is obviously outside the course of his employment. Such act will
not come within the course of employment merely because the servant would not have had
the opportunity to commit the wrong but for being in the master’s service.

Servants not under the control of the master-

Though generally, a servant is under the control of his master regarding the manner of his
doing the work, there are various cases in which the master does not or cannot control the
way in which the work is to be done. For example, the captain of a ship or a surgeon in a
hospital may be servants even they are not to be directed regarding they are to don their
work. The trend of modern authorities is to apply “hire and fire test”, viz., a person, who
employs another person and is his pay master, and has the power to “fire” (discharge) him, is
the master for the purpose of vicarious liability. If it is only the “control” test which was to
be applied in every case, then the house surgeons and medical assistants ofstate owned
hospitals cannot be regarded as servants of the state. Consequently, the state cannot be held
liable for the torts committed by these doctors.
In Rajasthan state road corporation v. K.N. Kothari, it has been held by the supreme
court that the transfer of effective control over a servant, would make the transferee of the
vechicle liable for vicarious liability.
In this case, the RSRTC hired a bus and a driver for running a bus on a specified route. The
RSRTC engaged a conductor, who managed the bus, collected fare from passengers and also
exercised control over the driver. It was held that for an accident caused by the driver, the
hirer (RSRTC) was vicariously liable, notwithstanding the fact that the driver continued to be
on the payroll of the original owner.17

5.2 HOSPITAL CASES

Consistent with the control test which was earlier followed, a hospital authority was not held
liable for the negligence of his staff in matters requiring professional skill but with the
17
P.S.A pillai, Law of Tort, 9th Edition, Eastern Book company
 change in the legal position that the control test is not decisive in all cases and it breaks down
when it applied to skilled and professional work, a hospital authority has now been held
liable for negligence of its professional staff and the distinction earlier drawn between
professional duties and ministerial or administrative duties has been approved.
In Hillyer v. Bartholomew’s Hospital, the 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 of control over them. That position no more holds good
and now the hospital authorities are liable for the professional negligence of their stuff
including radiographers, resident house surgeons, assistant medical officers and nurses and
part time anaesthetists.
In Cassidy v. Ministry of health, the hospital authorities were held liable where, due to the
negligence of the house surgeon and other stuff, during post operation treatment, the
plaintiff’s hand was rendered useless.18

5.3 GIVING LIFT TO UNAUTHORIZED THIRD PARTY

It was held in Twine v. Beans Express Ltd., that the act of giving lift by a driver to an
unauthorized person in that case fell outside the course of employment. The position
regarding lift to strangers, as emerging out of various decided cases, is being discussed
hereunder:
In Conway v. George Wimpey and Co. Ltd., the position was similar to that of Twine’s
case. There, the defendants, who were a firm of contractors, engaged in a building workat an
aerodrome, had provided lorries for coveying their employees to various sites. A notice was
displayed in every lorry that the driver was under strict order not to carry passengers other
than those employed by the defendants and that any other person travelling in the lorry did so
at his own risk. Oral instructions to that effect were given to the driver as well. The plaintiff,
who was a labourer in another firm, was given lift by the driver of one of the defendant’s
lorries and was injured due to the driver’s negligence. It was held that the act of the driver in
giving lift being outside the scope of his employment, the defendants were not liable to the
plaintiff. It was observed that giving lift to an unauthorized person “was not merely a
wrongful mode of performing the act of the class this driver was employed to perform but
was the performance of an act of a class which he was not employed to perform at all.19

18
Ratanlal and Dhirajlal, The Law of Torts, 26th edition
19
Dr. R.K. Bangia, Law of Torts, Allahabad Law agency, Law Publishers
 6. CONCLUSION

Vicarious Liability deals with cases where one person is liable for the acts of others. In the
field of Torts it is considered to be an exception to the general rule that a person is liable for his
own acts only. It is based on the principle of qui facit per se per alium facit per se, which means,
“He who does an act through another is deemed in law to do it himself”. So in a case of vicarious
liability both the person at whose behest the act is done as well as the person who does the act
are liable. Thus, Employers are vicariously liable for the torts of their employees that are
committed during the course of employment. So a master is liable for the acts of his servant if
the act is done in the course of employment. The servant and independent contractor are under
contract of service and contract for service respectively. The traditional view to distinguish
between the two was the control test exclusively. But in modern scenario this is not sufficient
test as there is no single test. The significant outcome can be achieved only by balancing
different factors. And we get to know that vicarious liability can be traced through various
relations like mater-servant, partners in a firm or principal agent. The master or the principal is
liable for the acts of his servant in the course of employment. Certain basic exceptions are there
in vicarious liability where the master may not be held liable.

7. BIBLIOGRAPHY

1. Ratanlal and Dhirajlal, The Law of Torts, 26th edition

2. Dr. R.K. Bangia, Law of Torts, Allahabad Law agency, Law Publishers
3. P.S.A pillai, Law of Tort, 9th Edition, Eastern Book company
4. The principles of vicarious liability and how it applies to the employer wishing to start
his own business, http://www.academicscope.com/principles-vicarious-liability-applies-
employer-wishing-start-business
5. Asif tufal, Vicarious Liability, The Law Teacher, www.lawteacher.net/Tort-law
6. Winfield and Jolowicz, Tort, W.V.H Rogers
7. Paula Giliker Excerpt, What is vicarious liability? , Cambridge University Press, 978-1-
107-62748-2 - Vicarious Liability in Tort: A Comparative Perspective
8. Preeti Singh, Legal Services India, Vicarious Liability