ASSIGNMENT-1

LAW OF TORTS AND MOTOR VEHICLES

ARGUMENTS FOR AND AGAINST VICARIOUS LIABILITY

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1st YEAR,BA.,LLB.B,FYIC

ARGUMENTS FOR AND AGAINST VICARIOUS LIABILITY

The fact that people usually tend to take things for granted if we need something to be done,
its doing is only as remote as our telephones, or the local community business centre. Most of
the things we do in our daily lives are done at least in part through the help of employees, or
other agents, servants etc. The convenience of having others do one's work on one's behalf, is,
however, fraught with pitfalls. Among them is the possibility that the people one employs
will not do the work sought to be done with all the care and attention that one would take, if
were to do the job himself; that injury to third parties and their property will result; and that
one may be held responsible for such injury. who will be responsible, the one who employed
or the one being employed? Or both of them? Now here comes the concept of Vicarious
liability for the justification. Vicarious Liability, often referred to as “imputed liability” is a
legal concept that assigns the liability to an individual who did not actually cause the harm,
but who has a specific superior legal relationship to the person who did cause the harm. It is
also known by the latin term “respondeat superior” is the holding of a person or entity
responsible for damages or harm caused by someone else. Most commonly thought of in
employee- employer relationship, it applies in other situations in which a person or entity
holds a superior position to an agent. For instance, a hospital is responsible for its doctor’s
actions. The concept of vicarious liability is rooted in the fact that the superior party has
induced, facilitated, or otherwise contributed to its agents act. Vicarious liability is a liability
that is imposed on one person (B) for the torts of another (A) in situations where B has not
committed any legal wrong. While the historical or jurisprudential origins of this liability are
not entirely clear,' it has been well entrenched in the common law for several centuries. The
central features of the doctrine of vicarious liability are four-fold. First, a tort must have been
committed by A, it not being enough that A's actions merely had an adverse impact on the
plaintiff. Second, at the relevant time, A must be an employee or agent of B. Third, A's tort
must be committed in the course of A's employment with B. And finally, the fact that B also
is liable for A's tort does not insulate A from liability - i.e. A and B become joint tortfeasors
both amenable to suit by the tort victim. These are the central features for which any theory
of vicarious liability will have to be able to account. Two principles – control and
cost-allocation – justify imposing vicarious liability on an employer for an employee’s
misconduct. First, an employer determines the nature and scope of an employee’s job
responsibilities and has the authority to control the manner in which an employee performs
work-related tasks. Second, the goal of the civil justice system is to compensate victims.
Companies have the resources to spread the costs of compensating injured victims across
their customer bases. A company could, for example, raise its prices slightly to cover
potential liability for the inevitable occasional injury. It’s fairer and more efficient to let the
company bear the cost of the victim’s injury than to assign the whole cost to the unlucky
victim by declining to impose liability on the company.
 
One of the traditional explanations of vicarious liability is that the employer should be
vicariously liable since the employer controls the activities of her employees. Unfortunately,
control cannot explain the contours of vicarious liability for number of reasons. Control
cannot be treated as either sufficient reason for always imposing liability, or as necessary
reason without which there should never be vicarious liability. Control has never per se been
a ground for imposing vicarious liability, e.g., parent is not liable for the torts of his children,
superior servant is not liable for the torts of subordinate servants, schoolteachers are not
liable for the torts of their pupils and so forth Conversely the absence of control although at
one time thought to preclude vicarious liability in the case of skilled and professional servants
is today not a serious obstacle to such liability.

Conduct considered to be within the scope of employment is that which is authorized or

similar to regularly authorized conduct. Unauthorized conduct, however, can also fall within
the scope of employment under certain circumstances. A master may be liable even if the
servant's act is specifically forbidden. Furthermore, a master is not free from liability merely
because such an act is consciously criminal or tortious. When determining whether the
conduct of an employee was within the scope of employment, courts generally look to see
whether the servant had engaged in the activities to serve the interest of the master, or was on
a "frolic. In Lloyd v. Grace, Smith &Co., Mrs Llyod, who owned two cottages but was not
satisfies with the income therefrom, approached the office of Grace, Smith & Co., a firm of
solicitors, to consult them about the matter of her property. The managing clerk of the
company attended her and advised her to sell the two cottages and invest the money in a
better way. She was asked to sign two documents, which were suppose, to be sale deeds. In
fact, the documents got signed where gift deeds in the name of the managing clerk himself.
He then disposed of the property and misappropriated the proceeds. He had acted solely for
his personal benefit and without the knowledge of his principle. It was held that since the
agent was acting in the course of his apparent or ostensible authority, the principle was liable
for the fraud. The traditional justification is that the master controls, or at least has the right to
control, the servant. Justification for respondent superior is that because the master selected
and hired the servant, she should be responsible for the servant's actions. Imposing liability is
desirable because it encourages the master to use the highest care which is reasonable when
selecting and hiring the servant. Some commentators support vicarious liability simply
because the master generally has "deeper pockets" than the victim or the employee, or at least
may be able to spread the cost to all the consumers of the master's service or product which is
another vague justification, However these justification, are not completely satisfactory
because an employer rarely has complete control over employees; moreover, the master can
still be held liable for acts he has expressly forbidden

The compensation explanation of vicarious liability holds to ensure that innocent plaintiffs
have solvent defendant against whom to enforce their legal rights and that as between
employees and employers, this is most likely to be the employer who is wealthier and/or
carries insurance. This justification of vicarious liability is flawed for three primary reasons.
First, it does not explain why compensation must come from the employer, since the plaintiff
would be equally well compensated if the payment came from any other source. Moreover,
even if the concern is "effective compensation" as opposed merely to "possible
compensation," the government, in most cases, has deeper pockets than any employer.
Second, the compensation explanation, when taken seriously, also tends to destroy the
employee/independent contractor distinction. Third, the compensation rationale cannot
explain why the plaintiff must have suffered tort at the hands of the employee or why this tort
must have been committed in the course of employment. This need, however, is unaffected
by the way the injury was produced. Thus, since the rationale of compensation cannot explain
why the compensation must come from the employer, nor justify three of the central doctrinal
requirements of the law of vicarious liability, it cannot be persuasive explanation of the
doctrine.

Another leading explanation of vicarious liability is that of loss-spreading, namely that in

fixing liability on the employer, the burden of the injury will be spread out among his
customers and insurers. As Traynor J. argued in Escola v. Coca-Cola Bottling Co., the cost of
an injury and the loss of time or health may be an overwhelming misfortune to the person
injured, and needless one, for the risk on injury can be insured by the [employer] and
distributed among the public as cost of doing business." Much like the other explanations of
vicarious liability, loss-spreading suffers from numerous difficulties in accounting for the
doctrine of vicarious liability. First, it cannot explain why vicarious liability is imposed in
situations where the loss cannot be spread , for example, it is clear that an employer of
domestic servant is vicariously liable for her employee's torts even though this cannot be
spread through customer base and regardless of insurance.Likewise, it is difficult to envisage,
in the absence of insurance which might or might not be readily available, how charity might
distribute these losses onto the community, yet it is trite law that they may be held vicariously
liable. Second, the rationale does not explain why the loss-spreading "vehicle" must be the
employer as opposed to scheme of social insurance or through vicarious liability imposed on
the government." Third, the rationale could be used to impose vicarious liability for the torts
of independent contractors if it turned out empirically that the employer could better spread
the loss than particular contractor or class of contractor. And fourth, the loss-spreading
justification does not explain why the loss to be dissipated must be both tort and committed in
the course of employment, as opposed to naturally caused catastrophic illness or an accidental
self-inflicted injury." Therefore, because of its inability to account for the central features of
the doctrine, loss-spreading is not an adequate explanation of vicarious liability

Under Vicarious Liability a person can be held liable for the torts committed by another
person if that person shares a Master-Servant relation with him. The servant does the act on
behalf of his master and therefore the law of torts provides that any wrongful act which is
done in the course of employment by the servant is bound to make the master liable for it.
There have been several tests for determining the relation of master and servant and the Court
also applies its discretion according to the facts of the case to determine such a relationship.
In conclusion, the concept of vicarious liability is a very complex issue, as it is torn between
trying to protect the right of the victim to gain sufficient compensation and trying to protect
the employer from being overburdened by their employees. Although it goes against the
principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability
seems appropriate as it does serve a useful purpose; it contributes to the maintenance of
safety standards and it enables the victims of negligence by employees to be reasonably
certain that someone will be in a position to pay them compensation.

Works Cited
1. Shana L. Malinowski, A Matter of Trust: Imposing Employer Vicarious Liability for the Intentional
Torts of Employees, 3 D.C. L. REV. 167 (1995)
2. Gary T. Schwartz, Hidden and Fundamental Issue of Employer Vicarious Liability, The , 69
S. CAL. L. REV. 1739 (1996)
3. R.K. Bangia, Narendra Kumar, The Law of Torts: Including Motor Vehicles Act, Consumer Protection
Act and Competition Act, Allahabad Law Agency (25 th ed.2020)
4. Fleming James Jr., Vicarious Liability, 28 TUL. L. REV. 161 (1953-1954).