Presentation

Law of Torts and Disaster

Management

Topic – IV

Vicarious Liability
 Introduction
• Whenever a person commits an act which is unlawful, that person is held liable for
violating the law and thus he is punished accordingly.
• For e.g. A enters into the property of B without his permission, such an act of A
amounts to trespass and thus he is liable.
• This is the general rule of torts but in some situations a person can be made liable
even if he has not done any wrong, if it is done by some other person with whom he
shares a certain relation, such as master and servant or principal and agent and in
these cases his liability is called vicarious liability.
• What is vicarious liability?
Vicarious liability means the liability of a person for an act committed by another
person and such liability arises due to the nature of the relation between the two.
Vicarious‟ is derived from 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 the statute.
The term is claimed to be invented by the English jurist Frederick Pollock in the
1880s.
• Vicarious can be defined as „a concept used to impose strict liability on a person who
does not have primary liability, that is, not at fault‟. Vicarious liability is not a tort.
Literally, it means that one person is liable for the torts of another. The employer is
liable for the torts of his employee.
• For e.g. A, is a driver who works for B and while driving B’s car for taking him to his
office, he hits C, a pedestrian due to his negligence in driving. In such a case even
though B was not driving the car he will still be liable for the accident which was
caused due to the negligence of A.
• “Liability based not on a person’s own wrongdoing, but rather on that person’s
relationship to the wrongdoer”.
• This liability arises only when the employee is acting in the course of his or her
employment.

Liability for another's wrongful acts or omissions may arise in following three ways

• 1-Liability by ratification : where the defendant has authorized or ratified

• subsequently the particular wrongful act or omission having full knowledge of its
• tortious character whether it be to his detriment or advantage. It is explained through
maxim “Omnis ratihabitio retrotrahitur, et mandato priori
• aequiparatur” which means that - every consent given to what has already been
done, has a retrospective effect and equals a command.
• 2-Liability arising out of a special relationship : where the defendant stands to the
• wrongdoer in a relationship which makes him answerable for wrongs committed
by the latter, though not specially authorized, e.g., master-servant relationship.

• So the constituents of vicarious liability in special relationship are:

• (1) There must be a relationship of a certain kind.
• (2) The wrongful act must be related to the relationship in a certain way.
• (3) The wrong has been done within the course of employment.

• 3-Liability by abetment : where the defendant has induced another to commit a

wrong.
• A person who procures the act of another is legally responsible for its
consequences-
• (1) if he knowingly & for his own ends induces another person and
• (2) when the act complained of is within the right of the immediate actor i.e. the
person actually doing it but is detrimental to a third party & the inducer procures
his object by the use of illegal means directed against that third party.
 Relations in
which Vicarious Liability arises
• These are the major relations in which vicarious liability of a person arises

• Master and Servant.

• Partners in a Partnership Firm.
• Principal and Agent.
• Company and its Directors.
• Owner and Independent Contractor.

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 master and thus a special relation 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 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
then the person is viewed to be doing such an act himself.
• Illustration: If A is the owner of many trucks and employs drivers to drive them for the purpose of trade and
in case one of his drivers gets into an accident because of his rash driving, then even though A did not drive
the truck himself, he will be liable for the accident.
• 2. Respondant 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 the development of the law of vicarious liability of the
master.
 Essentials of Vicarious liability in Master-Servant Relationship

• These essential conditions have to be followed for the vicarious liability of master to arise: –
• 1. The servant has committed an act which amounts to a tort.
• 2. Such a tortious act is committed by the servant during the course of his employment under
the master.

• Reasons for liability of the Master

• 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.

• 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 unskilfulness 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”.
• Test for Determining Master-Servant Relationship
For the determination of a Master-Servant relationship, certain tests have been developed
over a long period of time.

• 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 power exists then as per this test, the master and servant
relationship exists between the two.
• Illustration: A is the owner of a big area of land on which farming activities are carried out
and he has hired many workers for farming. A, not only instructs them how to do their jobs
but also how to do it. Here, by the test of control, the relation between A and his employees
is established as that of a master-servant.
• Modern View
• The old Control test is not applicable as an exhaustive test because in cases of work requiring
skill such as a doctor working in a hospital, the owner of the Hospital cannot instruct the
doctor on how to treat a patient and can only instruct him to treat patients. Thus certain
other tests have been developed for determining the Master and Servant Relationship.
• The test of work being an Integral Part of Business
• In the case of Stevenson Jordan & Harrison Ltd. V Macdonald & Evans (1952) 1 TLR 101, the
test of an integral part of the business was applied. Here, a contract of service was held to be
a contract for such work which is an integral part of the business and a contract for
service was held to be a contract for such work which is not an integral part of the business.
• Illustration: In an IT company the programmers are the employees of the company and there
is a master-servant relationship but if the company has hired catering services, the company
does not have a master-servant relationship because the act of providing food is not an
• Multiple Test
• This test provides that people who are in a contract of service are deemed to be
employees whereas the people who are in contract for service are independent
contractors. In the case of Ready Mixed Concrete v Minister of Pensions and National
Insurance (1968) 2 QB 497, three conditions were laid down for a contract of service

• 1.The servant agrees to provide his skill and work to the master for performing some
service in exchange for wages or some other consideration.
• 2.He agrees to be subjected to such a degree of control so as to make the person his
master in performance of his work.
• 3.The other provisions of the contract are consistent with this provision of being a
contract of service.
• This view was also reiterated in the case of
The Management of Indian Bank v. The Presiding Officer.
• This test also includes other important factors that are used to determine the master-
servant relationship such as who owns the tools being used for the work, is the employee
paid wages monthly or on a daily basis and all other relevant factors.
• Thus the old view of using Control test is no longer the only method of determining the
relation of master and servant as it has been realized that in the present complex world
where there are a wide number of factors which affect the process of determining the
relation between the employee and the employer, it is not possible to use just one test
and thus the various aspects of a case are seen to determine the nature of the
relationship and to decide whether such a relation is that of master and servant or not.
 Indian Medical Association v. V.P.Shantha, AIR 1996 SC 550
Brief Facts

These appeals, special leave petitions and the Writ Petition raise a common question i.e., whether and, if
so, in what circumstances a medical practitioner can be regarded as rendering ‘service’ under Section 2(1)
(o) of the Consumer Protection Act, 1986. Connected with this question is the question whether the service
rendered at a hospital/nursing home can be regarded as ‘service’ under Section 2(1)(o) of the Act. These
questions have been considered by various High Courts as well as by the National Consumer Disputes
Redressal Commission (NCDRC).

Ratio of the Case

NCDRC’s order decreed that the doctor – patient relationship is a contract for personal service and it is not
master – servant relationship. A doctor is an independent contractor and the doctor, like the servant, is
hired to perform a specific task. However, the master or principal (the hirer) is allowed to direct only what
is to be done, and done, and when. The ‘how’ is left up to the specific discretion of the independent
contractor (doctor). So, the doctor-patient relationship is a contract for personal service and as such,
cannot be excluded from Consumer Protection Act.

The deficiency in service means only negligence in a medical negligence case and it would be determined
under Consumer Protection Act, by applying the same test as is applied in an action for damages for
negligence in a civil court.
• Various ways in which liability of Master arises

• A master becomes liable in the following situations

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

If the employee does an act which is done 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 all due care is taken by the employee in
discharging his work.
• In Gregory v. Piper(1829) 9 B & C 591, the defendant and plaintiff had some disputes between them and the
defendant, therefore, ordered his servant to place rubbish across a pathway to prevent the plaintiff from
proceeding on that way and 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 Worker -A master is also liable for an act of servant which he does
negligently or fails to take due care in carrying out.
State of Rajasthan v. Vidyawati
The respondents filed a suit for the damages made by an employee (driver) of a State (Collector of
Udaipur) 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
ortious act by its servant within the scope of his employment and functioning as such was similar to that
of any other employer.
It was held in this case that the State should be as much liable for tort in respect of tortious acts
committed by its servant within the scope of his employment and functioning as such, as any other
employer.
• .
• In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P), 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 on the grounds
that the accident does not make the respondent company liable. But the Supreme Court in its
judgement overruled the judgement 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

• For making the master liable in such a case it has to be shown that: –
• The servant had intended to do an act on behalf of his master, which he was authorized to
do.
• The act would have been lawful if it was done in those circumstances which the servant
mistakenly believed were true or if the act would have been lawful if done properly.
• In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, 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 act of the porter
because it was done in the course of his employment and this act would have been proper if
the plaintiff was indeed in the wrong carriage.
The Chairman Railway Board & Ors v. Mrs. Chandrima Das & Ors (2000) 2 SCC 465;AIR
2000 SC 98

• Facts of Chairman Railway Board v Chandrima Das Case:

• Mrs. Chandrima Das(respondent herein), a practicing advocate of the Calcutta High Court, filed a
petition under Article 226 of Constitution against the Chairman of Railway Board(appellant
herein), claiming compensation for the victim (Smt. Hanuffa Khatoon), a Bangladeshi National
who was gang-raped by many including employees of the Railways in a room at Yatri Niwas at
Howrah Station.
• The HC awarded a sum of Rs. 10 lakhs as compensation for Smt. Khatoon. The HC was of the
opinion that the rape was committed at the building belonging to the Railways and was
perpetrated by the railway employees and thus the Railway board is vicariously liable.
• This appeal is against the HC judgement in favor of Chandrima Das.

Contentions & Issues:

• Is it right to contend that for claiming damages for the offence perpetrated on Smt. Khatoon, the
remedy lay in the domain of private law and not under public law and, therefore, no
compensation could have been legally awarded under Article 226?
• Is it correct to say that Advocate Chandrima Das could not have legally instituted these
proceedings as she had no locus standi and was, in no way, connected to the victim?
• Is it correct to say that since Smt. Khatoon was a Bangladeshi national and she can’t complain of
the violation of Fundamental Rights as FRs are available only to citizens?
• Is it right to contend that the Central Government can’t be held vicariously liable for the offence
of rape committed by the employees of the Railways?
 Ratio & Decision:

• The HC has jurisdiction not only to grant relief for the enforcement of fundamental rights but also for
‘any purpose’ which would include the enforcement of public duties by public bodies.
• This is done to prevent the State or the public bodies from acting in an arbitrary manner. SC, in a
number of cases, has awarded compensation for the personal injuries caused by the officers of the
government, like in Rudal Shah vs State of Bihar. Therefore, compensation can be legally awarded in
this case under public law, i.e. Article 226.
• The reliefs in the petition also contained to eradicate anti-social and criminal activities at Howrah
Railway Station and since the nature of petition is in public interest, therefore, there is a locus standi
to Mrs. Chandrima Das.
• Fundamental Rights such as Article 14 and 21 are available to ‘persons’ and ‘Rape amounts to the
violation of FR guaranteed to a woman under Article 21’, therefore, she can complain of a violation of
FR even being a Bangladeshi national.
• The Court said that the theory of absolute sovereign immunity is no longer in any welfare State. The
Railways are a commercial body of Union of India which is not merely sovereign body and can be
held vicariously liable for the damage caused by the employees otherwise there will be responsibility
for the government bodies and will behave in arbitrarily.
• In Anita Bhandari & Ors. v. Union of India, The husband of the petitioner went to a bank
and while entering inside it, the cash box of the bank was also being carried inside and as
a result, the security guard in a 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 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 the act of giving him gun
amounted to authorize him to shoot when he deemed it necessary and while the guard
had acted overzealously in his duties but it was still done in the course of employment.
• Wrong committed wilfully by a servant with the intention of serving 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 out of such act, if such an act is done in the course of
employment.
• In Limpus v. London General Omnibus Co. (1862) EngR 839, 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 obstruct the omnibus of the plaintiff. In the case,
the Court held that the defendant company was liable for the act of driver 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) N.Z.I.R. 136, The plaintiff was a customer who
on being intoxicated was refused further drinks by the barman, who was employed under
the respondent and thus the plaintiff threw a glass at him. The barman took a piece of
the glass 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 relation 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) A.C. 716, the plaintiff was a widow who
owned 1000 pounds as dues on a mortgage and a cottage. She went to the
manager of the defendant, which was a firm of solicitors, and she asked for his
advice to get richer. The manager told her to sell her cottage and to call up the
amount of mortgage. She authorized the manager to sell the property and to
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 a fraudulent act is not authorized, the manager
was authorized to take her signature and 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.

• State Bank of India v. Shyama Devi, AIR, 1978 SC 1263.

• In this case it was held that bank cannot be made liable because the act of the
servant in this case has been done outside the course of employment. The
employee when he committed the fraud was not acting within the scope of bank‟s
employment but in his private capacity as the depositor‟s friend.
 Vicarious Liability of State in India ‘State Liability’
To what extent the administration or state 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:

• Respondent superior (let the principal be liable).

• Qui facit per alium facit per se (he who acts through another does it himself).
• Socialization of Compensation.

• Unlike the Crown Proceedings Act, 1947 (England), we do not have any statutory
provisions mentioning the liability of the State in India. The law in India with
respect to the liability of the State for the tortious acts of its servants has become
entangled with the nature and character of the role of the East India Company
prior to 1858. It is, therefore, necessary to trace the course of development of the
law on this subject, as contained in article 300 of the Constitution.
 In order to a certain the vicarious liability of the state Article 300 is seen, though the very
Article does not say anything about the vicarious liability ,however, it tells if anyone wants to
file a case against the Union it should be in the name of Union of India or against any state
then should be in the name of the state e.g state of Maharasthra v.Rajender Singh

Presently vicarious liability of state is defined by Article 300(1) of the Constitution which
originated from Section 176 of the Government of India Act, 1935. This could be traced back to
Section 32 of the Government of India Act, 1915, the genesis of which can be found in Section
65 of the Government of India Act, 1858. It will thus be seen that by the chain of enactment
beginning with the Act of 1858, the Government of India and the Government of each State
are in the line of succession of the East India Company. In other words, the liability of the
Government is the same as that of the East India Company before, 1858.
In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for
India, the Supreme Court of calcutta,classified the functions of secretary of state into two –
• Sovereign functions
• Non-Sovereign functions

• Sovereign Functions: These are the functions of the state for which the state is not liable under
any provision for the wrongful acts of its employees. For example, functions like defence
activities, preserving armed forces, maintaining peace and war, diplomacy are some of the
sovereign functions for which the state is not liable.

• Non Sovereign Functions: These are the functions of the state which are other than the
Sovereign Functions
• Pre-Constitution Judicial Decisions Relating to Vicarious Liability of State:
• 1. Peninsular & Oriental Steam Navigation Company v Secretary of state
• A consideration of the pre-Constitution cases of the Government’s liability in tort
begins with the judgment of the Supreme Court of Calcutta in the case. P. & O.
Steam Navigation Co. v. Secretary of State. The principle of this case holds that if
any act was done in the exercise of sovereign functions, the East India Company or
the State would not be liable. It drew quite a clear distinction between the
sovereign and non-sovereign functions of the state for the purposes of vicarious
liability of state.
• As the facts of the case go, a servant of the plaintiff’s company was proceeding on
a highway in Calcutta, driving a carriage which was drawn by a pair of horses
belonging to the plaintiff. He met with an accident, caused by negligence of the
servants of the Government. For the loss caused by the accident, the plaintiff
claimed damages against the Secretary of State for India.
• The Supreme Court holds that if any action was done in the exercise of sovereign
functions, the East India Company or the State would not be liable. It drew quite a
clear distinction between the sovereign and non-sovereign functions of the state.

• Distinguishing between sovereign and non-sovereign functions it was held that if

a tort were committed by a public servant in the discharge of sovereign functions,
no action would lie against the Government.
• This doctrine of immunity, for acts done in the exercise of sovereign functions, was applied by the
Calcutta High Court in Nobin Chander Dey v. Secretary of State. The plaintiff, in this case,
contended that the Government had made a contract with him for the issue of a licence for the sale
of ganja and had committed a breach of the contract. The High Court held that upon the evidence,
no breach of contract had been proved. Secondly, even if there was a contract, the act had been
done in the exercise of sovereign power and was thus not actionable.

• 2. Secretary of State v. Hari Bhanji

• In this case, the Madras High Court held that State immunity was confined to acts of the State. In
the P & O Case, the ruling did not go beyond acts of State, while giving illustrations of situations
where the immunity was available.
• 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 the 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.
• The Madras judgment in Hari Bhanji holds that the Government may not be liable for acts
connected with public safety, even though they are not acts of the State. This view was re-iterated
in Ross v. Secretary of State. The Allahabad High Court took a similar view in Kishanchand v.
Secretary of State .
• 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.
• Post-Constitution Judicial Decisions Relating to Vicarious Liability of State
• State of Rajasthan v. Vidyawati
• The respondents filed a suit for the damages made by an employee (driver) of a State (Collector of
Udaipur) 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.
• It was held in this case that the State should be as much liable for tort in respect of tortious acts
committed by its servant within the scope of his employment and functioning as such, as any other
employer.

Kasturilal v. State of UP

• 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 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.
• Judgment
• 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 the 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 statutory power. Secondly, the act was done in the exercise of a sovereign function.
• Rudal Shah v. State of Bihar
• In this case it was laid down a most important principle of compensation against government
for the wrong action of its official the important judgment was handed down by the Supreme
Court against the Bihar Government for the wrongful and illegal detention of Rudal Shah in
Muzaffarpur jail for as many as 14 yrs after he was acquitted by the Sessions Court in June 1968.
The Court ordered compensation of Rs 30,000 for the injustice and injury done to Rudal Shah
and his helpless family.

• Bhim Singh v. State Of Jammu And Kashmir

• In this case, the Court awarded the exemplary cost of Rs 50,000 on account of the authoritarian
manner in which the police played with the liberty of the appellant.
 Sovereign and Non-Sovereign Functions

N. Nagendra Rao v. State of AP.

• 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:
• No civilized system can permit an executive as it is sovereign. The concept of public interest has
changed with structural change in society. No legal system can place the state above the law as it
is unjust and unfair for a citizen to be deprived of his property illegally by the negligent act of the
officers of the state without remedy. The need of the state to have extraordinary powers cannot
be doubted. But it cannot be claimed that the claim of the common man be thrown out merely
because the act was done by its officer even though it was against law.
Present Position
• The distinction between sovereign or non-sovereign power does not exist. It all depends on the
nature of the power and manner of its exercise.. It would be in conflict with even modern
notions of sovereignty.

• Sovereignty now vests in the people. The legislature, the executive and the judiciary have been
created and constituted to serve the people. In fact the concept of sovereignty in the Austinan
sense, that king was the source of law and the fountain of justice, was never imposed in the
sense it was understood in England upon our country by the British rulers.
…

.
 Law on state liability in tort in the United Kingdom

Background
The sovereign in the United Kingdom enjoyed immunity from liability for tortious acts
for a very long time. However, even then, limited relief was provided to the individuals
as a matte of grace- the Crown would meet the liability of the officer or servant who
committed the tort. This slowly developed into a practice whereby the government and
the claimant would identify a nominal defendant who would stand in place of the
government. The policy behind this involved:

a) the recognition of certain rights of the individuals as against the state, and not just
against fellow citizens;

b) increased interactions with the citizens due to increased activities of the Crown.
However, this practice was not very satisfactory as the servants could not always be
held liable, especially in cases where they owed duties only to the Crown and not the
public.

The immediate impetus for law reform in the UK was given by two cases- Adams v
Naylor and Royster v Cavey. These cases highlighted the problems associated with the
practice of holding the Crown liable through a fictitious defendant who would be
substituted for the Crown in the actual proceedings. In light of this, Crown Proceedings
Act 1947 (“CPA”) was enacted which overhauled the legal regime completely.
• Liability under the CPA,1947
• The most significant change brought about by the CPA was to impose a general liability in tort
on the Crown for the acts of its employees and agents (S 2(1)(a)). Thus, the Crown’s liability
was made analogous to that of a private employer under common law the Crown would be
liable for all acts or omissions of its employees or agents during the course of his
employment.
• Further, s 2(1)(b) and (c) impose liability on the Crown for breaches of duties owed to the
employees or agents by virtue of the employment relationship and for breaches of common
law duties attaching to the ownership, occupation, possession or control of property
respectively. Ss 2(2) and 2(3) lay down the liability of the Crown for breach of statutory duties.
S 2(2) excludes liability of the Crown for public duties and governmental functions by limiting
its liability for breach of statutory duty to cases where the statutory duty is binding on persons
other than the Crown and its officers.
• Further, s 2(3) specifies that the Crown shall be liable for torts committed by officers of Crown
in the exercise of or purported exercise of functions imposed by common law or statute as if
those functions were conferred or imposed by the lawful instructions of the Crown. The scope
of the Crown’s vicarious liability under all these provisions also extends to independent
contractors as well, such liability being akin to that incurred by a private person in respect of
the acts or omissions of the independent contractor.The vicarious liability of the Crown under
these provisions can be restricted through limitation of liability or immunity clauses
contained in statute which limit or negative the liability of government departments or
officers of the Crown.
• Further, the Crown’s vicarious liability is restricted to that for torts committed by officers
directly or indirectly appointed by the Crown. This is a big drawback as it results in the
exclusion of a number of officials such as the police who are appointed by the local
• The nature of relief that can be granted against the Crown is akin to that which can be given in proceedings
between subjects. However, the Court cannot grant an injunction or make an order for specific performance,
an order for recovery of the land or delivery of the property against the Crown. Further, the Court cannot
grant an injunction or make an order for specific performance against an officer of the Crown if the effect of
such an order is given a relief against the Crown that could not have been obtained otherwise.
• Exceptions from liability
• Instead of making a distinction between sovereign and non-sovereign functions, as done in India, the CPA
lays down specific exceptions to the vicarious liability of the Crown in tort. Such a system avoids the pitfalls
of either a narrow or a broad classification of sovereign functions.The most notable exception to the position
of vicarious liability of the Crown under the CPA is that the immunity of the Crown for a tort committed in its
private capacity is retained. Other key exceptions are as below:

• a) Judicial acts- S 2(5) grants immunity to the Crown for acts or omissions of persons in the exercise or
purported exercise of responsibilities of a judicial nature or responsibilities in relation to the execution of
judicial process. Thus, liability of the Crown is excluded for quasi-judicial acts as well as administrative errors
in the exercise of judicial functions.

• b) Armed forces- S 10 pertains to an exception for tortious acts or omissions by members of the Armed
Forces which result in the death or injury of another member of the Forces who was either on duty or if not,
was on service property. Such an exception is available so long as the Secretary of State certifies that the
death or injury could be attributable to service. Further, there is immunity for injury or death suffered by
members of the armed forces where such death or injury is caused due to the condition of the service
property. This section was repealed by the Crown Proceedings (Armed Forces) Act 1987 prospectively;
however, the Secretary of State has limited power to apply the immunity under s 10 for the “purpose of any
warlike operations in any part of the world outside the United Kingdom.” Even if such immunity does not
apply, it has been held that there exists no common law duty of care owed by a soldier towards his fellow
soldier in battle conditions; neither is there any obligation on the Crown to provide a safe system of work in
such a situation.
• c) Exercise of prerogative or statutory powers- S 11 provides an exception from liability
for the Crown for torts committed by its servants in the exercise of prerogative or
statutory powers conferred on the Crown, especially those powers exercised for the
defence of the realm and training of the armed forces.

• d) Acts of State- it is an accepted rule that Crown servants enjoy immunity from personal
liability in case of acts of State. This immunity is preserved for the Crown as well. Thus,
acts done in pursuance of executive policy in the course of relations with another state or
its subjects are protected from being challenged.Thus, it is seen that the fundamental
nature of the legal regime in the UK is one that holds the state liable for torts of its
servants like any private employer. However, the exceptions strike a fair balance in
protecting the Crown from hindrance in executive policy-making, exercise of judicial
functions etc.
• English Common Law the maxim was "The King can do no wrong" and Change of
position by the Crown ProceedingsAct, 1947. Now the Crown is liable for a tort
committed by its servants just like a private individual.
 Law in the United States
• Background
• The common law rule of state immunity held influence in the United States even though historical
reasons did not justify the presence of such a rule in the US where there has never been a monarch. This
position was fortified by the Eleventh Amendment and subsequent judicial decisions. Reasons that have
been advanced for the same include that of immunity from suits being a privilege of sovereignty,
grounds of necessity and consistency with the supremacy of executive power.While this situation was
changed through legislative action in 1887, tort claims were excluded. Relief in case of torts committed
by public officials could only be obtained through the private bill procedure. In practice, this procedure
proved to be cumbersome, often unjust, took up a lot of Congressional time and led to political
favouritism. Thus, dissatisfaction with the private bill procedure led to the enactment of the Federal Tort
Claims Act (FTCA) in 1946.

• Liability under FTCA

• The FTCA, s 1346(b) authorizes actions in tort to be brought against the US by victims of tortious acts
committed by government employees and federal agencies while acting within the scope of office or
employment subject to certain exceptions. The vicarious liability of the United States for the torts of its
employees is analogous to the liability of private employers for the torts of their employees “under like
circumstances”. This had raised the question of whether the FTCA impliedly permitted distinguishing
between governmental and non-governmental functions, giving the state immunity for torts committed
while discharging governmental functions. However, the decision in Indian Towing Co v United States of
America clarified that the phrase in s 2674 was not to be construed as giving immunity to the
government for torts committed while carrying out an activity or enterprise not carried on by private
individuals. Thus, there is no distinction between sovereign and non- sovereign functions as in India.
• Unlike the CPA, the FTCA does not provide for liability of the state for torts of independent contractors.
However, through case law, it has been recognised that ‘derivative sovereign immunity’ may be available
to government contractors and agents acting on behalf of the government if their
• acts are so closely connected with the work and policy of the government that they can be
considered as government agents. Such immunity is available only when the federal government
enjoys immunity from liability under any of the exceptions to the FTCA.
• The FTCA may also cover liability for the acts of employees of government corporations if the
corporation acts as an agency or instrumentality of the US. Further, the presence of an
administrative settlement procedure for tort claims is another unique feature as compared to the
CPA.

• Exceptions to liability

• The FTCA is more restrictive of state liability in tort than the CPA. The key exceptions are:

• a) Intentional torts- Unlike the position in the UK, the vicarious liability of the state under the FTCA
is restricted to claims for injury or loss of property, or personal injury and death. It excludes
vicarious liability of the state for claims arising out of intentional torts such as assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights etc.There seems to be no coherent
rationale for the exclusion of such torts from the purview of the FTCA.

• b) Limited exception for torts committed in the exercise of statutory powers- In respect of statutory
duties, the liability of the state for the acts or omissions of the employee is excluded as long as “due
care” was exercised in the execution of the statute. Such an exception is necessary as imposing
liability on the state for activities normally authorized by the statute would unduly restrict the
carrying out of statutory duties. The scope of this exception depends on the construction that would
be placed on what acts can be considered as related to the execution of the statute. Committee
hearings and reports on the draft Bill have suggested that a narrow construction is to be adopted.
• c) Discretionary function exception- The state is also immune from liability for claims “based upon
the exercise or performance or the failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government, whether or not the discretion
involved be abused.
• This exception is designed to prevent claims from hindering governmental policy making in the
economic, social and political spheres. The scope of this exception was explained in Dalehite v
United States as covering executive decision-making in designing programs and activities as well as
the determinations necessary for such decisions. In order to be covered within the discretionary
function exception, the conduct of the employee must follow the specific directions contained in
statute, regulation or policy of the government. It must require “judgment or choice”and such
judgment or choice must be “susceptible to policy analysis.”The scope of the exception is rather
broad as it covers even operational decisions made at the lower level.The problem with such a
broad exception is that it can capture a wide variety of actions- by covering even instances of
negligent conduct or wilful malice, it leaves the affected individual without any effective remedy. In
Dalehite itself, the discretionary function exception protected the government from vicarious
liability for the negligence of its employees in the planning and execution of shipment of unstable
fertilizer which caused the deaths of over 560 persons and wiped out an entire dock.

• d) Armed forces- an exception is provided for torts committed by armed forces in their combatant
activities during the time of war. The Feres doctrine also provides immunity to the state from
compensation claims for injuries caused to members of the armed forces where such injuries are
caused due to or are sustained the course of the activity incident to service.Other exceptions
include immunity from liability from claims for tortious acts or omissions of the postal department,
claims arising in respect of the assessment or collection of any tax or customs duty including those
regarding detention of any property by tax, customs or law enforcement officers,
• claims for damages caused by the imposition or establishment of a quarantine; claim for
damages resulting from the fiscal operations of the Treasury or by the regulation of the
monetary system;claims arising in a foreign country etc.
• Thus, it is seen that the FTCA, although it follows the same approach as taken in the UK
towards state liability in tort, i.e., legislative intervention, has restricted the liability
considerably.

• Liability under state laws

• While the FTCA has, for most part, done away with sovereign immunity of the federal
government, sovereign immunity continues to play a huge role in the case of states which
constitute the Union. Such immunity of the states has been preserved through the rulings
in two landmark cases- Seminole Tribe of Florida v Florida and Alden v Maine that have
interpreted the US Constitution as incorporating the principle of state sovereign immunity
which is applicable both in federal and state courts. These cases held that the Eleventh
Amendment was to be construed widely to accord sovereign immunity to the states that
make up the Union. While the Congress can abrogate the operation of such state
sovereign immunity by virtue of the Fourteenth Amendment in certain circumstances, by
finding a constitutional basis for state sovereign immunity, these cases have limited the
power of the Congress.Most state laws seek to preserve the immunity of the state in tort
through provisions which prohibit actions in tort being brought without governmental
consent or which negate the liability of the state under various circumstances.Certain
other statutes make the government liable only in particularcases. In addition, most state
laws also contain limitation of liability clauses which restrict the quantum of damages that
• There also exist state laws which prohibit actions being brought against public employees
for tortious acts or omissions while acting in the course of their employment.Public
employees are often given protection from liability through provisions which require
indemnification or payment of judgment debts by employers for torts committed by
employees in the course of their employment, except in cases of serious individual
misconduct.Thus, the US position, while it has waived sovereign immunity of the federal
government for certain categories of torts under the FTCA is far from satisfactory insofar as
liability of state governments in tort is concerned.
• Constitutional torts: Bivens actions
• The rule in the United States is that immunity of the federal government is preserved
against actions for damages arising out of constitutional torts committed by its employees.
This is unlike the position in India where a constitutional remedy is provided under A.32
and A.226 of the Constitution. However, since the landmark ruling in Bivens v Six
Unknown Named Agents,a remedy in damages can be given against federal officials when
there is a violation of the plaintiff’s constitutional rights. Such a remedy for monetary
damages is available when there is no adequate alternative remedy. The scope of such
actions is circumscribed by the requirement of an actual or compensable loss under
common law.
• Further, the official also enjoys qualified immunity from liability which is available as long
as his actions do not violate clearly laid down constitutional rights or statutory rights which
would have been known to a reasonable person. The states also enjoy immunity from
constitutional torts by virtue of the Eleventh Amendment, although the application of such
immunity can be curtailed by the Congress under its powers to enforce the Fourteenth
Amendment. It must be noted that such immunity under the Eleventh Amendment does
• Law in France
• Background
• The French law on state liability in tort has gradually evolved from limited immunity for the
sovereign to that of absolute liability of the state. Immunity of the state was provided for by
two provisions in the Constitution of the Year VIII: a) denial of jurisdiction to courts to try
cases relating to acts of the administration; b) requirement of governmental consent for
suing government agents, barring Ministers, for acts done in the discharge of their official
duties. The state was liable, according to the provisions of the Civil Code, only in case of
torts committed due to the fault or negligence of its servants. Further, a distinction was
made between sovereign acts of the state, for which it could not be held liable in tort and
non-sovereign functions. The cumulative effect of these provisions was to act as a deterrent
to litigation against the state.Following protests, this system of ‘administrative guarantee’
was done away with by decree in 1870. Thus, suits could now be brought against the state
for acts of its employees or agents in administrative courts.

• Liability under administrative law

• The development of French law on state liability in tort has been through case law. The
Blanco case did away with the determination of state responsibility according to principles
contained in the Civil Code- the Civil Code had fixed responsibility on the state only in case
of fault or neglect and determined such responsibility according to the rules governing
principal-agent or master-servant relationships. State liability in tort depended on a
distinction between personal faults (faute personnelle) carrying only personal liability of the
officer, and service- related faults (faute de service), for which the remedy lay against the
• It is of specific interest in the Indian situation that a distinction between acts of public
power (actes d'autorite) and acts of management (actes de gestion) or business acts was
also made to restrict the liability of the state- the state was not liable for the former
category of acts. However, unlike in India where such a distinction continues to be made, in
France it was slowly rendered redundant: state responsibility was established, through
judicial decisions, for almost all administrative acts without considering whether the act
involved the exercise of a sovereign or non-sovereign function.The state was held liable for
the tortious acts of its officers irrespective of whether they were engaged in law
enforcement, military activities, tax collection activities or in activities of a
businessnature.From 1919 onwards, the regime of state liability changed to one based on
risk. Thus, the present position is that a state, its departments, communes and public
establishments can be held liable for the risk involved in its operations, even in the
absence of fault on the part of the body. The affected individual need only show that
injury was caused due to the functioning of the body.Thus, French law now takes a very
liberal stance towards the issue of governmental liability in tort.
 Liability of public authorities under Human Rights Act 1998

• The enactment of the Human Rights Act 1998 (“HRA”) is a development in public law
which can be seen as roughly analogous to the development of constitutional remedies
for compensation in India. The HRA provides for damages to be awarded for breaches of
human rights by public authorities.The remedy of compensation for loss caused is a
discretionary one- it is to be awarded when it is necessary to provide “just satisfaction” to
the victim. The Human Right Act,1998 route can provide an alternative where tort law
does not always provide a remedy. This is so, especially in the case of omissions by public
servants where tort law does not often provide a remedy- tort law usually provides
protection for negative rights whereas human rights approach can be used to protect
positive rights which may be affected due to omissions by public servants. The HRA
approach might also work better in those cases where there has been an incursion into
rights which an individual has against the state and which rely upon the special
responsibility of the state vis-à-vis the citizen. Thus, the HRA, to a great extent,
supplements the regime of governmental liability under private law.
•
 Conclusion

• The concept of vicarious liability is seen as an exception of gereral rule of liability in which an
individual is held liable for another’s tortious act, hence it is also regarded as strict liablity from
which the person so liablied for another’s wrongful act cannot skip from the liablity so arised due to
his relation with wrongdoer,e.g servent or agent wrongful act or omission
• Vicarious liability deals with only those cases when one person is liable for the actions of another
person. And the liable person must be superior to the other person. The person who commits
wrong must be in the course of employment. The course of employment is essential for vicarious
liability.
• State’s liability for the acts or omissions of statutory authorities arises only in cases where the
statutory authority acts outside his legal authority while purporting to act pursuant to the legal
authority conferred upon him and the act or omission, which causes or results in damage to a
person, is not within the ambit of the statutory protection, if any, contained in such enactments.
This rule is evolved for the obvious reason that an act done under a statute and in accordance with
the statute can never amount to tort as was said by the Supreme Court “A result flowing from a
Statutory provision is never an evil”.

• The system of state liability gradually developed in French law upon establishment of post-revory
limited the imlution statutes, which often held authorities liable in damages, and with the later
occurrence of the Blanco case of 1873. In parallel, the evolution of English proceedings in the
nineteenth century of the Crown and allowed public bodies to incur civil liability, which shaped the
formation of its modern state liability through the Proceedings Act in 1947.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 his servants. But, in England, the position of the old Common Law maxim has been
• In England the law relating to state liability defines the area where the state can enjoy
privileges. So there is certainty of law in this area whereas inUSA exceptional clause is a
great flaw and the state is exempted from liability. In England there is no other courts
except the ordinary courts where aggrieved has to file suit against the public officer.
When comparing these three system the French system is the most suitable one and it
defines the area where the sovereign can enjoy privilege and state would be liable like
that an ordinary person in most of the negligent acts. In England, no court is competent
to enquire into the allegation against the officials of the state. In USA the Federal Torts
Claims Acts 1946 consists of exception clause which exempts the state from liability.
The defects of English system is that the application of ‘Act of state’ is limited whereas
in USA more exemption clause is a real flaw. This exemption clause exempted the state
from liability even for negligence acts. In India while determining the liability of the
state,application of sovereign and non-sovereign would affect the right of the citizen
guaranteed by the Constitution. So the French system is more adaptable to the modern
conditions making the country more responsible towards the citizens rights and justice.
The French administrative law succeeded in developing a new machinery and evolved a
new technique in determining the liability of the state. The French legal system is a
notable one and it is a well developed and balanced system of state liability and it can
be used as a model for equipping and shaping the law of state liability.