ESSAY WRITTING

Vicarious liability

The doctrine of vicarious liability lies in the heart of common law system. It is the loss
distribution device based on the grounds of social and economic policy. Vicarious liability
has been developed based on social and economic policy and on the very clear, logical or
legal principle. Vicarious liability is an exception to the general rule where liability arises not
because of one’s fault but because of others. This principle is based on the maxim that does
not act through another is deemed in law to do it himself. The liability in this case is based on
the maxim respondent superior which means let the superior be responsible. Vicarious
liability is a tort where a third party is held liable due to the negligence of another person for
whom they have a special relationship. For example, a employer may be held liable for a tort
committed by his or her employee. The concept of vicarious liability prevailed in the pre
-British era in Hindu and Muslim jurisprudence to deal with fraudulent conduct. The system
at that time was retributive and the scope was slender. The meaning of maxim Respondent
superior is let the master answer master is liable to the wrongs committed by his servant.
Master is superior thus he ought to take care hence he would be questioned if something
wrong happens. The other maxim that is applicable to this concept is que facit per alium facit
per se meaning is that he who act through another does the act himself. Basically, it throws
light on the notion that whatever the acts done by the master himself. If he had not employed
a person specifically for that work. Qui facit per alium facit per se is a simple untruth except
so far as it expresses the truism that one who deliberately carries out a design through the
instrumentality of another is the active agent throughout. It certainly is not true that what your
agents do, you do yourself. Vicarious liability comes into figure when there is a special kind
of relationship and those relationships are partners, master- servant and principle -agent. The
relationship which the partners have with each other is same as in between principal and
agent. For any tort committed by any partner o the company makes all the partners liable. The
liability of each partner is joint and several. There are several sections ion partnership act as
well which defines the mutual liability of all partners. In a partnership each partner acts on
the behalf of partnership. Thus, the partnership can be held liable vicariously for negligence
committed by partner. Consequently, the partnership may be held vicariously liable for the
client’s injury. Master and servant are terms used to explain a legal relationship among an
organization and employee In most instances, a master-servant agreement is a settlement for a
service wherein the employer has direct manage the actions of the servant. there is a test to
determine master servant relationship it includes contract of service and control. Master has a
command based nature towards his servant. A servant is a person who is employed by the
master to work under the directions and control of master, serves only one master at a point
of time and can be hired and fired by master. The principal agent relationship is an
association in which one entity legally appoints somebody to behave on its behalf. Principal-
agent relationship is considered to be legally binding when they have a written agreement
between them. There is a feeling of trust or fiduciary type of relationship exists when agents
start working under principal. This designates the agent appearing on behalf of the foremost
should carry out the assigned obligations with the principal’s satisfactory interest as a
priority. the acts done by servant must be under the course of employment. The act must be
authorized by the servant and there must be wrongful mode of doing some authorized act. If
the servant himself delegates the authority and instead of himself carefully performing the
duty allows the same to be negligently performed by someone else, the master will be liable
for such negligence of the servant thus if the driver of a bus permits another person to drive
the bus and other person makes the accident then the master will be liable for the
consequences. But if someone not authorized to drive and still drives the bus without any
such delegation from the driver and without the knowledge of the driver it is an unauthorized
act for which the master or principal is not liable. Master will not be held liable for assault or
battery committed by its employees unless the use of force was part of their course of
employment. A wrong must falls within the course of employment of the servant if it is
necessarily incidental to something which servant is employed to do. Like authorising a
servant to deal with client and he deals fraudulently then he will be held liable. In case Lloyd
v Grace smith and co. a managing clerk of a firm of solicitors fraudulently got the property of
client transferred in his own name. the firm was held liable. In case of State bank of India v
Shyama Devi, customer of bank gave some amount to the bank employee (as a friend) with
no proper entries In this case receipt was not issued and there was no proper entries therefore
bank was not held liable because there was no proof to show instead it showed the negligence
of the customer as he don’t asked for receipt. In case of Beard v London General Omnibus
co, the driver went for having dinner, during his temporary absence the conductor drove in
order to turn and an accident occurred here master was not held liable as there was no
delegation of authority. In the case of Limpus v London General Omnibus co . there were
general instructions by the owner to the driver that do not do racing while driving but driver
negligently raced and resulted in an accident. Here also driver was not held liable because
there were clear instructions from the master. There is an exception as well to this concept
that is employer liability in independent contract which includes strict liability and when
employer carelessly appoint contractor. In case of Mersey Docks & Harbour Board v Griffith
Liverpool ltd. , harbour board let out the mobile crane and a skilled worker for loading and
unloading of ship to Griffith Liverpool but due to negligence of driver damage was caused
and here harbour board was made liable. In case of Smt. Kundan Kaur v Shankar Singh ,
partners temporarily gave their truck with a driver to a transport company and driver drove
the truck rashly and negligently which caused injury and this case partners were held liable
because there was only transfer of service and not control of the driver. 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. It is a well established principle that the master
is vicariously liable for the torts of his servants if the alleged tortious act is committed in the
course of employment. The study reveals that the principles governing the liability of State
for the torts committed by its servants suffers from serious limitations in the absence of a
statute defining the contours of state liability and the inability of courts to liberate themselves
from the archaic precedents which are not in consonance with the modem requirements. A
number of statutes in force today contain protection clauses immunising the government or
it’s employees from liability. It is suggested that such protection clauses should not extend to
negligent acts however honestly done. The study makes out that the Supreme Court in its
great effort of fashioning new remedies against governmental lawlessness has evolved
constitutional tort remedy wherein compensation is awarded to the victims for violation of
fundamental rights.