VICARIOUS LIABILITY IN LAW OF TORTS – DJN Law Journal (2024)

Introduction

Generally a person is liable for his own wrongful acts and one does not incur any liability for the wrongful acts of another. However , in certain cases, a person gets vicariously liable for the wrongful acts done by other. Here comes the concept of “Vicarious Liability” which is mainly applicable in civil cases.

The word “vicarious” came from a Latin word ‘vicarious’, meaning ‘substitute’. The term was originated in England, under the English law, then spread all over the world. There are many significance of the concept of “ Vicarious Liability” and many critics too. This research paper talks about the concept of vicarious liability in various relationships. The famous “ Master- Servant” relationship is presented vastly including the torts, which give rise to the vicarious liability of the master. This research paper also give a small glance on the vast subject of “ Vicarious liability of the state”. Started with the meaning of legal maxim “Qui facet per alium facit per se” , this research paper covers most of the important topics included in “ Vicarious liability” including the landmark case.

Qui facit per alium facil per se

“Qui facit per alium facit per se” is a Latin legal maxim. It translates to, “he who does an act through another is deemed in law to do it himself. The maxim is shortened form of the complete formation from the 18^thcentury :

“qui facit per aluim, est perinde uc si facit per se ipsum”[1]

The maxim is the general principle for implying the vicarious liability in the civil cases, especially in principal agent relationship.

Elements of vicarious liability

Vicarious liability; the liability of one person for the act done by another person, may arise in certain cases. But only after it meets all the constituents of vicarious liability.

Three important constituents of vicarious liability are as follows :

1. There must be a relationship of a certain kind: Vicarious liability arises only when there is a relationship of ‘principle – agent’ or ‘master- servant’ or partners. Sometimes, applicable in the relationship of employer and independent contractor also. If, none of the above relationship is there, there would be no implication of vicarious liability.

2. The wrongful act must be related to the relationship in a certain way: There would be no vicarious liability of the superior, if the wrongful act done by his servant or agent is not at all related to their relationship with the superior or it can said that the wrongful act done was outside the course of employment.

3. The wrongful act must be done within the course of employment : An act is said to be done in the course of employment, if it is either a wrongful act authorized by the master, or an unauthorized mode of doing some wrongful act (authorized by the master).

Relation

According to one of the element of vicarious liability, there must be a certain kind of relationship between the wrongdoer and the person, being vicariously liable for the act of wrongdoer. The relationships which enforce the vicarious liability of the superior are mentioned below :-

1. Principal and agent relationship:

In any act, authorized by the principal and done by the agent, both of them are liable. Here the principal would be vicariously liable. It does not matter whether the authority given was express or implied. The liability in this kind of relationship would be joint and several.

Example: Lloyd v. Grace , smith and co.[2]

In principal agent relationship, the vicarious liability is enforced on the basis of a general principal, “Qui facil per alium facit per se”.

2. Partners

The relationship of partners is same as that of principal- agent. Therefore, the general principle applies here also. For the tort committed by any partner in the ordinary course of the business, all the other partners ( including the wrong doer himself ) would be liable to the same extent as the guilty partner. There liability would be joint and several.

Example: Hamlyn v. Houston and co.[3]

3. Master- Servant relationship:

For all the wrongful acts , done by the servant in the course of employment, the master would be held liable. The principle of ‘Respondeat Superior’ meaning ‘ let the principal be liable’ is a Latin legal maxim. It is the basis of liability along with ‘Qui facit per allium facit per se’ for the liability under master- servant relationship. The liability arises in this kind of relationship is joint and several, as they are considered to be joint tortfeassors.

There are two essential elements for the liability of the master to arises. They are:

1) The tort was committed by the servant

2) The servant committed the tort in the “course of his employment”

4. Employer- Independent Contractor relationship

According to the general rule, no liability arises of the employer for the acts done by an independent contractor. The reason for the same is that an independent contractor is not subject to the control and supervision of his employer regarding the manner in which the work is to be done.

Case: B Govindarajulu v. MLA Govindaraja Mudaliar[4]

However, there are some exceptions to the general rule involved in the employer-independent contractor. In the following exceptional cases, an employer can be made vicariously liable for the wrongs of the independent contractor.

· Strict liability: the employer, along with the independent contractor is liable in the case if strict liability.

Example: Rylands v. Fletcher[5]

· If an employer authorizes the independent contractor to do an illegal act: contract to do an illegal both would be liable act, both would be held liable.

Example: Maganbhai v. Ishwarbhai[6]

· Employer also gets liable for the dangers caused on or near the highway. Example: Tarry v. Ashton[7]

· Employer would be liable, if the wrongful act results in the breach of a master’s common law duties to his servant.

Example: Wilson’s & Clyde co v. English[8]

· Employer also gets liable for the tort of nuisance, if that nuisance leads to withdrawal of support from the neighbour’s land.

Example: Bower v. Peate[9]

Torts where master/superior is vicariously liable

Negligence

If a servant, while performing his authorised duty commits a tort of negligence, the master will be held liable under the concept of vicarious liability.

When a servant causes any harm or loss to the third party, while carelessly performing his duty, within the course of employment; the superior will be held liable.

Example: Williams v. Jones[10]

Theft

In the concept of theft by servant, there are two conditions:-

1) Theft of goods bailed to the master:

In this condition, third-party’s property is bailed to the master, which has nothing to do with the servant. It wasn’t under his authorised duty and course of employment. Hence, if he commits the theft of bailed good, the master wouldn’t be held liable for the wrongful act of his servant.

Example: Morris v. C.W. Martin & Sons Ltd.[11]

2) Theft of goods not bailed to the master:

If a person commits the theft of non bailed property in the course of his employment and in the relation to his duty, the master will be held liable.

Example: Roop Lal v. Union of India[12]

Fraud

If a tort of fraud is committed(in the course of employment) by a servant, the master of that servant would be held liable vicariously for the tort of fraud. The liability here would be several and joint. The servant and the master would be considered as joint tortfeassors. The fact, that weather the act was done for the benefit of the master or not is not necessary for the implication of liability. It is a settled principle in the law of tort that master is answerable for every wrongful act done by his servant.

Example: State bank of India v. Shyama devi[13]

Mistake

An enormous or excessive use of the authority to do some act, resulting in loss of plaintiff, comes under the mistake of servant. Master is held liable for such wrongful act of the servant, if the wrongful act done was in the course of employment and was related to his authorised work.

Example: Poland v. Parr & sons[14]

Vicarious liability of the state

The concept of vicarious liability works same when it comes to the liability of the state. Tortious liability of the government is another term used for the vicarious liability of the state. The concept works on the “hire” and “fire” and control of authority basis. Therefore, the main authority that is the government of state gets vicariously liable for the tortious actions obits employees. It does not matter the act done was voluntarily done or involuntarily done. For example, the acts of omission, commission, wrongful execution, negligence etc. The concept of vicarious liability of State was evolved in 1858 by East India Company. In Indian law, the concept came into effect in 1950. It is stated in the Article 300 of the Constitution of India.

In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India[15], the plaintiff’s menial was travelling in a steed driven came and was passing by the Kidderpore Dockyard in Calcutta, which is the government property. Due to negligence on the part of the defendant’s servants a heavy piece of iron, which they were carrying for the form of a steam fell and its whang frighted the steed. The steed rushed forward against the iron and was injured. The complainant filed a suit against the Secretary of State for India in Council for the damage which was caused due to the negligence d the retainers employed by the Government of India. The Court tried to look to the liability of the East India Company. A distinction was drawn between the autonomous andnon-sovereign functions of the East India Company. It was held that, if the act was done in the exercise of autonomous functions, the East India Company would not have been liable, but if the function was anon-sovereig one, Le, which could have been performed by a private existent without any delegation of power by the Government, the Company would have been liable. Conservation of the shipyard was considered to be anon-sovereign function and, as similar, the Government was held liable.

Conclusion

The research paper is about the concept of “Vicarious liability in the Law of Torts”, a vast topic to study every inch. This research paper is written with the aim of covering at most concepts, terms and legal maxims included in “ Vicarious liability”. In making , the author used secondary data for the research work to meet the requirements. The research paper used descriptive and analytic methods to cover the important topics of “ Vicarious Liability in the Law of Torts”, like elements of vicarious liability, relationships required to apply the rule of vicarious liability, literal meaning of the legal maxims, four important wrongful acts where the superior gets vicariously liable for the acts of his savant and the important concept of the vicarious liability of the state.