Vicarious liability

College Name: Lords Universal College of Law

Name: Pooja Chandrapal Baghel

Class & Div: FY.LLB (B)

Roll no: 83

Subject: Tort & Consumer Protection Laws

Professor Name: Vibhuti Agrawal

Website: law.uok.edu.in

Remembering the great actress Divya Bharti on her Death Anniversary. Known for versatile acting
and beauty. Forever in our hearts ❤.
AKNOWLEDGEMENT
Introduction

Every person is liable for acts, the person commits and not liable for the acts done by others
but in some situations when a person is liable for the acts of another person is known as
vicarious liability. So, for this to happen there must be a specific kind of relationship between
both the people and the act must be connected with the relationship. These relationships can
be of a master and servant or principal and agent. 

Vicarious liability is the liability of a person for an act of another person because of their
relationship with each other. For eg: Saurav is the driver of Gaurav, and Gaurav sent Saurav
to drop his friend Suryash to the Airport. On their way, Saurav hits Mahesh because of his
reckless driving. In this situation, Gaurav was not even in the car while the car hit Mahesh,
but still, he was liable for the accident caused by Saurav. This is because of vicarious
liability. 

The general rule is that a person is liable for his own acts and he cannot be made liable for the
acts done by others. But to this general rule, certain exceptions were recognized when one is
made liable for the acts of others. This happens when one stands in certain relationship with
another. When one is made liable for the acts of another, this is known as vicarious liability.
Cases of liability for the acts of others arise mainly in reference to the following relationship:

a. Liability of the principal for the wrongs of the agent

b. Liability of the partner for the wrongs of other partners, and

c. Liability of the master for the wrongs of his servant

Liability of the Principal:

Where one person authorizes another to commit a tort, the liability for that will be not only of
that person who has committed but also of that who authorized it. The maxim is, an act of the
agent is the act of the principal. When an act is authorized by the principal and is done by the
agent, both are liable. The liability is joint and several. The authorization may be express or
implied. In fact, in most of the cases of vicarious liability of the principal, the authorization is
not direct. An agent acting in the ordinary course of the performance of his duties assigned to
him, may commit a wrong, and if he does so, not merely he but the principal is also liable.
But it is necessary that the agent must act in the ordinary course of his duties, otherwise the
principal will not be liable. In Lloyd vs. Grace Smith & Co., (1912) AC 716, One Mrs. Lloyd
approached the office of Grace Smith & Co., a firm of solicitors, to consult them about her
properties. She was attended by the managing clerk of the firm who advised her to sell two of
her properties and invest the sale proceeds in some venture. On her accepting the advice she
was made to sign two documents which were purported to be sale deed, but in fact gift deeds
in his favour. The clerk ultimately sold the properties and misappropriated the sale proceeds.
On her suit against the company, she succeeded as the court observed that the clerk, the agent
of the firm was acting in the course of his apparent and ostensible authority, the principal was
thus was held liable even though he had no knowledge and the agent had acted solely for his
personal benefit. For the purpose of application of the rule of vicarious liability, it is not
necessary that the authorization should be in so many words. You may ask your friend to
drive the car for you, and if in the course of driving the car, he negligently involves your car
into an accident, you are liable, as he was driving for you, and not for himself. Even when an
agent is not authorized by the principal, expressly or impliedly, to do an act, but if the
principal ratifies the act, he is liable. Of course the act must have been done for the principal.
If agent has done the act on his own behalf and not on behalf of the principal, no
authorization can be validly done. Secondly, the ratification must be unequivocal and with
the full knowledge of the act done by the agent.
Liability of Partners:

The Indian Partnership Act lays down that the relationship between the partners inter se is
that of the principal and agent and this applies in the cases of tortuous liability. Thus, in a
firm, all partners are liable to the same extent as principal is liable for the acts of his agents.
The liability of all the partners is joint and several. Master and Servant: Like an agent or a
partner, if a servant does some wrong in the course of employment, the master is liable.
Again, the liability of the master and servant is joint and several. This is based on the maxim
of respondent superior meaning let the principal be liable. The master’s liability is also based
on the principal, he who does an act through another is deemed in law to do it himself. The
liability of the master arises even when the servant acts against the express instructions of the
master. The master will be liable for the tort of his servant if the following two conditions are
satisfied:

a) The wrong should be committed by a person who is servant, and

b) The wrong should have been committed by him in the course of his employment. The
question is now, determining the liability of a person for the acts of his servant, is that the
latter comes within the meaning of the word ‘servant’. Servant is a person who is employed
by his master to do some work under him and under his directions and control. A servant
should not be confused with a person known as independent contractor. What distinguishes
an independent contractor is that he undertakes to do certain work and how that work is to be
done, he seeks no direction from anybody. He is not under the control of the person who has
given him contract. Thus, when you travel in your car which is being driven by your driver
(i.e. who is your employee) and if by his negligent driving an accident occurs, you would be
liable, but if you are going in a taxi and driver by his negligence causes accident, you are not
responsible. In the former case, the car-driver is your servant, while in the latter case, taxi
driver is an independent contractor. In Devinder Siungh vs. Mangal Singh, AIR 1981 P & H
53, where one D entrusted his truck for repairs for a workshop. While the owner of the
workshop was driving the truck, by his negligent driving, he injured a passer-by, one P. On
an action by P against D, it was held that D was not liable as the owner of the workshop was
an independent contractor. Exceptions: The rule that a person is not liable to the acts of an
independent contractor, the following exceptions are recognized:

a. Where the employer of an independent contractor authorizes the doing of an illegal act or
ratifies it, he is liable.

b. An employer of an independent contractor is liable in case of strict liability.

c. An employer of an independent contractor is liable for the danger caused on or near a

highway. d. An employer of an independent contractor is liable for nuisance. e. If the wrong
of the independent contractor results from master’s common law duties to his servant, he
would be liable.

Mater is not liable if the servant is not under his control : For instance, captain
of a ship or a surgeon in a hospital is not under the control of the ship-owner or the hospital
respectively. However, under the modern trends in the law of torts, the hire and fire rule is
applied in many cases. The rule means if one employs another person and pays him salary or
remuneration or wages and has power to dismiss him, one is liable to the acts of one’s
employees. Under modern law, hospital management is considered to be liable for the
professional negligence of their doctors, such as radiographers, surgeons, physicians etc.

Lending of one’s servant: When a person lends the service of his servant to a third
person, the question is: who is vicariously liable for the acts of servant, the original master or
the third person? The answer depends as to who has the control over the acts of the servant.
But it seems that the consensus of the authorities is that it is the general and permanent
employer who is liable. Thus, where a transport company lends its truck and the driver to
another transport, the driver on account of his rash and negligent driving causes injury to a
person, it is the original transport company which is liable [AIR 1966 Punj 395]. However,
where the relationship of master and servant has been constituted for a particular occasion,
the temporary employer is liable for the acts of the servant. It is necessary to establish that the
temporary employer was in the position of a master. In, Hull vs. Lees, (1904) 2 KB 602, an
association was engaged in supplying qualified nurses to attend on patients, and during the
course of such employment, they were paid by the patients. P has employed the services one
nurse, Q, through the good offices of the association but on account of the negligence of the
nurse, P got severe scalding. P sued the association. It was held that the association was not
liable.

Fraud & mistake of servant: When a servant while in the course of the performance of his
duties as such commits a fraud, the master would be liable for the same. The master’s liability
extends to the theft of the servant committed in the course of employment of another’s
articles entrusted to the master. The master is equally liable for the mistakes, or erroneous or
excessive use of the authority causing losses to the goods of the other entrusted to the master.
Since the servant has implied authority of the master to protect the property of the master and
if the servant in performing such duty uses excessive force, the master is liable to the
resultant loss or injury to the third person.

Delegation of authority by the servant: If the servant delegates the authority given to
him by his master to a third person and if that person commits a wrong, the master will be
liable. Thus, if a driver of a bus instead of driving it, allows a third person to drive, and if the
third person by his negligent driving causes injury to someone, the master will be liable. The
master is liable for his servants negligence for delegating the authority to a third person and
not that the third person is acting in the course of employment.

Doctrine of common employment: Under English Law doctrine of common

employment was recognized as an exception to rule of vicarious liability of the master for the
servant’s wrongful acts. It lays down that a master is not liable for the negligent harm done
by one servant to another acting in the course of their common employment. The essentials of
the doctrine are:

a. The wrongdoer and the person injured/harmed must be fellow servants, and

b. At the time of harm/injury or accident, they were engaged in common employment.

In England, the doctrine has been abolished by the Law Reform (Person Injuries) Act, 1948.
At one time, the doctrine of common employment was held to be applicable in India, but it
was limited later on under certain statutes, and has been abolished by the Employer’s
Liability Act, (Amending Act of 1951).

Vicarious Liability of the State

Although Article 300 of the Constitution of India lays down that the Union of India and the
States are juristic persons and can sue and can be sued, the circumstances in which the
tortuous liability of the State arises, has not been specified. It lays down that the Government
of India and the Indian States can be sued or can sue in the like manner as the Dominion of
India can be sued or can sue before the coming into force of the Constitution. Under the
Government of India Act, 1935, the liability of Government is same as that of the East India
Company. In Peninsular and Oriental Steam Navigation Co. vs. Secretary of State for India,
the question raised was, whether the Secretary of State for India is liable for the damages
occasioned by the negligence of the savants in the services of the Government. C.J. Peacock,
observed; ‘The East India Company were a company to whom sovereign functions were
delegated and who traded on their own account and for their own benefit, and were engaged
in transaction partly for the purpose of Government and partly on their own account, which
without such delegation of sovereign rights, might be carried on by private individuals. There
is a great and clear distinction between acts done in exercise of what are usually termed as
sovereign powers and acts done in conduct without such powers delegated to them.’ Further,
“But where the act is done or a contract is entered into, in the exercise of powers usually
called sovereign powers, by which we mean powers which cannot lawfully be exercised
except by a sovereign, no action will lie.” Further in KasturiLal vs. State of UP, Supreme
Court in 1965 made distinction between sovereign and non-sovereign functions of State. The
following position emerges from the various decisions:

1. The liability of the Union of India and States is same as that of the East India Company.

2. The Government is not liable for torts committed by its servants in the exercise of the
sovereign powers. The Government is liable for the torts committed in the exercise of non-
sovereign functions.

3. Sovereign powers means powers which can be lawfully exercised by only by a sovereign
or by a person to whom such powers have been delegated.

4. No defined tests to know what are the sovereign powers. Functions like— maintenance of
defence forces, maintenance of law and order and proper administration are included in the
sovereign powers. Functions like—trade, business and commerce and welfare activities are
amongst non-sovereign powers.