VICARIOUS LIABILITY- LIABILITY FOR WRONG

COMMITTED BY OTHERS
• The term “vicarious liability” is made up of two words: “vicarious” and
“liability.” Vicarious means feeling or experiencing something by reading or
watching about someone else doing it rather than doing it yourself. Liability,
on the other hand, refers to the state of being legally liable for something.
• As a result, vicarious liability can be described as a term that is used to
enforce strict liability on someone who does not bear primary liability, i.e.,
someone who is not at fault.
• A party can be charged with vicarious liability in a number of circumstances.
For example, an employer may be held responsible for an accident caused by
an employee as a result of a delivery vehicle’s careless activity. Parents are
often held vicariously accountable for their children’s negligence.
• When an employer’s duty of care is violated, but the complainant is
unable to determine which employee did so, vicarious liability may be
created. An employer would not be exempt from responsibility if a
specific person cannot be confirmed as the perpetrator of the violation.
• In Roe v Minister of Health, it was held that if the claimant
established negligence on the part of one or more of the defendant
hospital’s employees, the defendant authority was vicariously liable,
even if the claimant could not prove which of the employees was
negligent.
 PRINCIPLES OF VICARIOUS LIABILIITY
1.QUI FACIT PER ALIUM FACIT PER SE Any individual who permits or procures
the commission of a tort by another is liable for the tort as though he had committed it
himself. The doctrine is based on the principle “Qui facit per alium facit per se,” which
means “he who does an act by another does it himself.” In this case, the individual who
authorizes the tort is responsible not just for the tort itself, but also for its direct effects.
2.RESPONDEAT SUPERIOR Even if no express order or privity of the master is
proven, the master is liable for any wrong done by the servant or agent during the
course of the service. Let the superior/principal be liable/responsible, according to the
maxim. The rule stems from the legal presumption that all acts performed by a servant
in and about his master’s business are done with his master’s express or implied
authority, and are therefore the master’s acts. In this age of trade and business, the
injured party/innocent claimant has been granted the right to sue a financially liable
defendant. As a result, the injured party would receive an adequate remedy if a superior
individual was held liable.
• REASONS FOR VICARIOUS LIABILITY
1.The master has the “deepest pockets.” In certain instances, a defendant’s
wealth or the fact that he has access to capital through benefits has had an
unintentional impact on the formulation of legal standards.
2.Vicarious liability promotes injury avoidance by providing a financial
incentive for an employer to allow his workers to consider the welfare of
others.
3.Because the employer profits from his employees’ operations, he should
therefore cover any expenses incurred as a result of such activities.
• CONSTITUENTS OF VICARIOUS LIABILITY
1.There must be a specific type of relationship.
2.The wrongful act must be somehow connected to the relationship.
3.The error occurred during the period of employment.
• ESSENTIALS OF VICARIOUS LIABILITY
1.The servant was the one who committed the wrongdoing.
2.The servant committed the wrongdoing while on the employment.
 LIABILITY ARISING OUT OF SPECIAL RELATIONSHIPS

• When the person who commits the act and the person who seeks to be
held responsible are connected to each other, vicarious liability may
occur as:
1.Master and Servant
2.Master/Owner/Employer and Independent Contractor
3.Principal and Agent
4.Company and Directors
5.Firm and Partners
6.Guardian and Ward
1.The relationship between an Agent and the Principal:
• The agent and the principal share a fiduciary relationship i.e. a relationship based on trust. In
this relationship, the principal employs the agent and authorises him to act on his behalf and
discharge duties that have been imputed upon him by the principal. The person who is
authorised to act as such is the agent.
• The authorisation of the principal can be expressed or implied. If the agent commits a tort in the
due course of his employment or in discharge of his duties, liability can also be imputed upon
the principal who authorised such an act in the first place.
• Here, the principal stands in a position of power and control over his agent. Therefore, both the
agent and the principal are joint tortfeasors and their liability is joint and several. The plaintiff
has the right to sue both or either.
• In, State Bank of India v. Shyama Devi,
• The plaintiff's husband had handed over cheques to be deposited in his account to a friend who
was an employee of the defendant bank. No receipts of the deposits were collected and the
friend misappropriated the amount. It was held by the Court that the employee was not acting in
his scope of bank employment but as a depositor's friend when he committed the fraud.
Therefore, the defendant bank could not be held liable by vicarious liability.
2. The relationship between a master and his servant:
• It is a general rule of law, that if a master authorises or orders certain acts to be
performed by his servant, then the master must be held liable for any tort that the
servant commits. Again, here the master stands in a position of control or authority
over the servant who works under his supervision. The master's liability arises
because he enjoys the benefit of acts done by his servant.
• However, for the master to be made liable for the acts of his servant the
following essentials must be fulfilled:
The tort was committed by the servant. The servant is a person employed to fulfill
all the duties delegated by his master.
• The servant committed the tort in the "course of employment." An act is said to be
in the course of employment when the wrongful act is expressly authorised by the
master or if it is a wrongful or unauthorised mode of performing an act authorised
by the master.
• It is pertinent to note that this liability arises even when the servant acted against
the express instructions and for no benefit of his master. Like in the agent and
principal relationship, the liability of the master and servant is joint and several and
both are joint tortfeasors.
3.Liability of partners:
• The relationship between partners is that of a principal and agent
and the rules of agency also apply to them. All actors in a
partnership act on behalf of each other while representing
themselves as a collective. These partnerships can take forms of
firms, companies, a trustee or even a Karta representing a Hindu
joint family. Therefore, a partner can be held vicariously liable for a
wrongful or negligent act by another partner under the rules
enumerated in Indian Partnership Act, 1935.
• In Hamlyn v Houston & Co. one of the partners of the form, acting
within the scope of his authority, attempted to bribe the clerk of
the plaintiff to induce him to commit a breach of his employment
contract. It was held by the court that the other partner can be
held vicariously liable for a tort committed by one of the partners.
• MASTER/OWNER/EMPLOYER AND INDEPENDENT
CONTRACTOR
• In general, a master is responsible for the torts of his servants, but not
for the torts of independent contractors.
• Morgan v. Incorporated Central Council held that defendant was
not responsible when plaintiff was injured on his property after falling
from an open lift because the job was under the supervision of an
independent contractor, and it was his responsibility to keep the lift
secure.
• The control test, the organization test, and the multiple test are the
three forms of tests that will assess the relationship between the
employer and the employee.
 Vicarious Liability Of The State

• The doctrine of sovereign immunity is a legal principle that states that a sovereign state
or government cannot be sued without its consent.
• In other words, the government has immunity from civil and criminal lawsuits, and
individuals cannot sue the government or its agents without permission from the
government itself.
• The concept of sovereign immunity is founded on the notion that the state is the
supreme authority and cannot be held accountable for its decisions since it is acting in
the best interests of the nation and the general populace.
• This principle is derived from the legal maxim “rex non potest peccare,” meaning “the
king can do no wrong.” The doctrine of sovereign immunity is based on the Common
Law principle that the King can’t commit any wrong and that he cannot be guilty of
personal negligence or misconduct, and as such cannot be responsible for the
negligence or misconduct of his servants.
• Position in England
• At common law, initially, the position was that the Crown could not be sued in tort
either for wrong authorized by it or committed by its servants, in the course of
their employment.
• This position has been entirety changed after passing of the Crown Proceedings
Act, 1947. Now the crown is liable for the tort committed by its servant, just like a
private individual.
• Federal sovereign immunity
• While discussing sovereign immunity at a federal level an individual can’t sue the
federal government as an entity unless it says otherwise. Suits can be filed against
federal employees under the Federal Tort Claims Act (FTCA) for violating rights
while they are performing their roles, only in case of negligence of a factor.
• If such an act is done the individual should determine whether they can sue under
the FTCA. If they cannot be sued under the Act their claim may get barred.
 Vicarious Liability of State in India

• According to Article 300 of the Constitution, the position of State liability is as

follows: In accordance with Clause (1) of Article 300 of the Constitution, the
Government of India may sue or be sued by the name of the Union of India and
the Government of a State may sue or be sued by the name of the State.
• Additionally, the Government of India or the Government of a State may sue or
be sued in relation to their respective affairs in similar circumstances to those in
which the Dominion of India and the corresponding Provinces or the
corresponding Indian States might have sued or been sued "if this Constitution
had not been enacted"
• Thirdly, any provisions that may be made by an Act of Parliament or the
Legislature of such State, enacted in accordance with authority granted by the
Constitution, shall be subject to the second mentioned rule.
 Evolution of the doctrine of Sovereign immunity

• Pre-Constitutional era
• Peninsular and oriental steam Navigation Company v. Secretary of State for
India– This was the first case in which the Sovereign immunity of the state was
debated. There was a heavy piece of iron made which was being carried by some
workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven
carriage as a result plaintiff’s horse was injured. The plaintiff filed a suit against the
government for damages due to negligence on the part of the servants employed
by the government.
• Held- If the act was done in exercise of sovereign functions, the East India Company
would not have been liable, but if the function was a non-sovereign one, the
company would have been liable. Maintenance of the dockyard was considered to
be a non-sovereign function and, as such the government was made liable.
 Post-Constitutional Era

• The Supreme Court gave one of the earliest decisions in the post-constitutional era in the case
of State of Rajasthan v. Vidhyawati on the issue of the liability of the state for the acts of
government servants. In this case, the driver of a jeep for the official purpose of Collector drove
negligently and rashly while taking the jeep from to the collector’s bungalow for collector’s use
injured a plaintiff’s husband, who suffered injuries. The Supreme Court held that like any private
employer, the government of Rajasthan will be liable for the negligent act of its servant. According
to Dave J. State should not be treated differently from other ordinary employers when it is
engaging itself in activities in which any private person can engage himself.
• In spite of the decision of the Supreme court in Vidyawati’s case, the position is not very certain
and satisfactory. In the case of Kasturi Lal v. State of U. P, the police constable misappropriated
the property kept in government malkhana and fled to Pakistan, the Supreme court held that state
was not liable as police authorities were exercising sovereign functions. In this case, the court has
again stated that if the act of the government servant was one which could be considered to be in
the delegation of sovereign powers, the state would be exempt from liability.
 The concept of Joint Tortfeasors

• All persons who aid, or counsel, or direct or join in the committal of a

wrongful act, are joint tortfeasors. In other words when two or more persons
unite to cause damage to a third person then they shall be called as joint
tortfeasors. Joint tortfeasor in itself signifies the combined liability to
wrongdoers in case of civil wrong.
• It is said that each tortfeasor in case of joint liability shall only be liable to pay
for his amount of damage caused that means the compensation of damage gets
divided among the tortfeasors as per the respective losses caused by them.
• The principal of contribution also states that in case a person has already paid
for more than his share to the plaintiff then, he later, can recover the amount,
which he was earlier not liable for, from the other tortfeasor.
 Joint Tortfeasors in India

• In India there is no statutory law that specifically talks about the joint liability
of tortfeasors but the courts here in India have followed the law as laid down
in Merryweather case, but in some cases, the courts expressed doubts about
its applicability in India.
• The Supreme Court of India, in Khushro S. Gandhi vs. Guzdar, refused to
follow the common law of England that originally talked about principals and
rules such as each tortfeasor must be liable for whole damage and not
individually. They refused this.
• The court held that in the case of joint tortfeasors, in order to release all joint
tortfeasors, the plaintiff must receive full satisfaction or which the law must
consider as such from a tortfeasor before other joint tortfeasors can rely on
accord and satisfaction.
 Instances of Liabilities of a Tortfeasors

1.Agency- when one person acts on behalf of some other person, he is said to be
the agent of such person. In cases of agent-principal when a tort is committed
by an agent under the course of his business then the principal will be jointly
liable along with the agent. And both of them will constitute joint liability
2.Vicarious liability – when a person is liable for the tort that is committed by
another person, the liability of both of them is combined together as joint
liability. For example the tort committed by a servant shall not be independent;
it will always constitute the joint liability of the master also. Therefore they
both shall be joint tortfeasors
3.Joint Action- when two or more persons physically commit an act which is a
civil wrong, they both are jointly and severally liable for the act.
 Difference between Joint and Several Liabilities

• When we talk about the concept of joint tortfeasor, it is often read as jointly and severally liable but
the thin difference between the two is barely known to people. Jointly means both the parties have
joint liability, of the offence. Meaning that each one of them shall be equally and wholly liable for the
offence committed by them and shall take the full responsibility together.
• In cases of joint liability one or both of the parties can be sued for full obligation. But in the cases of
several liabilities the share of responsibility is divided, and the parties are only responsible for their
share of the wrong and not responsible for the share of the wrong committed by the other party.
• In torts, a claim against a party with joint liability may or may not include all the parties. If the
plaintiff by default leaves someone out, then there is no remedy to re-compensate from the remaining
parties, as the defendant is jointly as well as wholly liable to pay compensation for the wrong that is
not even committed by him.
• But in the cases of several liabilities, this gap is covered. It does not matter if a joint tortfeasor is
covered in the suit or not, he can still be sued later by the defendant to re-compensate him for the
extra that he has beared. The other party can be sued by the defendant in this case later. Thus several
liabilities amplify the course of justice and divide the share of joint liability in torts.