RESTRICTIONS AND ADVANCMENT IN VICARIOUS

LIABILITY
(Assignment no: 1)
Course: Jurisprudence-II
Submitted to: Ms. Hina Qayyum
Submitted by: Hira Bibi
(2020-LLB-027)
Semester: LLB-IV (2020-2025)
Session: Spring 2022
Date of submission: 16 June, 2022

Department of Law
Fatima Jinnah Women University, Rawalpindi
Table of Contents

1. Vicarious Liability 3
1.1 Definition 3
2.1 Qui facit per allium facit per se 4
2.2 Respondeat Superior 4
3.1 Liability by Ratification 4
3.1.1 Conditions for Ratification 4
3.2 Liability by Relation 5
3.2.1 Master and Servant Relation 5
3.2.2 Principal or Agent Relation 6
3.2.3 Servant and Independent Contractor 6
3.3 Liability Abatement 7
3. Advancement in Vicarious Liability 7
5.1 Barclays Bank Plc vs various claimants [2020] 7
5.2 WM Morrison Supermarket plc vs various claimants 8
6. Critical Analysis of the cases 9
7. Vicarious Liability in the light of Islamic Law 9
RESTRICTIONS AND ADVANCEMENTS IN VICARIOUS LIABILITY

INTRODUCTION
Vicarious liability is a rule of responsibility which is found across the common law of tort and
typically renders an employer strictly liable for the tort of its employees provided that the tort
takes place in the course of employment. The idea of holding an employer liable to pay
compensation to victims of its employee’s torts, regardless of the absence of personal fault, is not
unique to the common law. Ideas of strict liability for the torts of others may also be found in
civil law systems. Usually, we see that a person is not liable for the acts done by the other
person. However, under the law of torts, a person can be held liable for another person. Also, for
this person to be held accountable for the act of the other person. It is necessary that there exists
any form of relationship between the person who is accused and the other person. In short, there
must be some sort of connection between these people.1

1. Vicarious Liability

1.1 Definition

According to Sir John Salmond, "liability or responsibility is the bond of necessity that exists
between the wrongdoer and the remedy of the wrong. “The general principle of law is that a
person is liable for his own actions and not for the acts of others. 2 But in certain kinds of cases a
person is held liable for the act of another because of a special relationship subsisting between
them. A person is liable for his own wrongful acts, and one does not incur any liability for the
acts done by others. In certain cases, however, vicarious liability, that is the liability of one
person for the act of another person, may arise. In order that the liability of A for the act done by
B can arise, it is necessary that there should be a certain kind of relationship between A and B,
and the wrongful act should be, in a certain way, connected with that relationship. So, Vicarious

1 Krishnendra Joshi, Vicarious Liability by Authorization and Ratification under Tort Law, May 8, 2019,
https://blog.ipleaders.in/ratification-of-vicarious-liability-under-tort-law/
2 Id
Liability deals with cases where one person is liable for the acts of others. In the field of Torts, it
is considered to be an exception to the general rule that a person is liable for his own acts only.3

2. Principles of Vicarious Liability

2.1 Qui facit per allium facit per se

As per this maxim, a person who acts through another person is deemed by law to have done that
act himself. Thus, whenever a person authorized another person to act on his behalf, if any
liability arises out of such act the person who gave the authorization will be held liable
vicariously because as per the law, he has done that act himself through another person and
therefore he will be liable.

2.2 Respondent Superior

According to this maxim, the superior should be held responsible by law for the acts done by his
subordinate. Thus, whenever a subordinate person does an act for another person, the other
person who is his superior will be held liable for the wrongs arising out of the act and thus he
will be vicariously liable.4

3. Limitations in Vicarious Liability

3 michael a. jones, Textbook on Torts, 2000, p379.

5 Krishnendra Joshi, Vicarious Liability by Authorization and Ratification Under Tort Law, May 8, 2019,
https://blog.ipleaders.in/ratification-of-vicarious-liability-under-tort-law/
3.1 Liability by Ratification

Usually, when a person is acting through another person, that other person is given authority by
such a person to do an act. For e.g., if A is doing an act on behalf of B, it is done only when B
has given his authority to A to do such an act and if any liability arises because of A’s act then B
will be held liable because he had given his authority to A for doing such an act. Ratification
means that the person for whom an act is done by another approves of such an act after it has
been done. So, the authority for acting on his behalf is given after the act has already been done.
In the law of torts, the effect of ratification is that it will be treated as if the act was done with
authority from the beginning. It is based on Maxim Qui Facit per allium facit per se. 6

3.1.1 Conditions for Ratification

There are certain conditions which have to be fulfilled for ratification to be valid and hold the
person vicariously liable under the law of torts. These conditions are:
1. A person will be vicariously liable for only those acts which are done for him on his
behalf by another person.
2. The person who ratifies the act must have full knowledge about the tortious nature of the
Act.
3. Ratification should be done at such a time at which the person who is ratifying could have
done that act himself.
4. An illegal or void act cannot be ratified.7
Sunil v/s Maharashtra State Mining Corporation (2001):
The Managing Director of a company terminated the employee without giving any valid reason
for his termination. When the employee questioned the authority of the Managing Director, the
Managing Director stated that he has an important authority by being the Agent of the company,
the company however ratified the said act of the Managing Director. The matter when taken up

6 Sanam Mansoor, Vicarious Liability, JAY KAY LAW REPORTER PVT. LTD. AN SSI UNIT
F J&K,1, 2015
7 Farid Ahmed v Pakistan Burma Shell Limited (Civil Appeal No. 121 K of 1981, decided on 03 feb,1987
SCMR), https://cite.pakcaselaw.com/scmr-supreme-court/1987/1463
by the court held the termination to be illegal and held that a corporation cannot ratify an act with
an illegal objective, and which goes against the company laws and rights of an employee.8

3.2 Liability by Relation

These are the major relations in which vicarious liability of a person arises
1. Master and Servant.
2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.

3.2.1 Master and Servant Relation

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 for the liability of the master to arise
The following two essentials are to be present,
1. The tort was committed by the servant.
2. The servant committed the tort in the course of his employment.
A servant is a person employed by another to do work under the direction and control of his
master. As a general rule, a master is liable for the tort of his servant, but he is not liable for the
tort of an independent contractor. It, therefore, becomes essential to distinguish between the two.
A servant is an agent who is subject to the control and supervision of his employer regarding the
manner in which the work is to be done. An independent contractor is not subject to any such
control. He undertakes to do certain work and regarding the manner in which the work is to be
done. He is his own master and exercises his own discretion.9

8 paula giliker, rough justice in an unjust world, volume 65 no.2, ROUGH JUSTICE IN AN UNJUST
WORLD Published By Wiley, page 273, March 2020
9 ir Ahmed v The State 1985 SCMR 257, 2006 Y L R 366 [Karachi] , https://cite.pakcaselaw.com/ylr-
karachi-high-courtSindh/2006/366
3.2.2 Principal or Agent Relation

An individual is always liable for her own conduct. Whenever an individual is held liable for the
actions of another, this is known as vicarious liability. In the context of agency, the agent is
acting vicariously for the principal. A principal is responsible for the tortious acts of an agent
done within the Scope of Employment. This is pursuant to a doctrine known as "Respondeat
superior".10

3.2.3 Servant and Independent Contractor

A servant and independent contractor are both employed to do some work for the employer but
there is a difference in the legal relationship which the employer has with them. A servant is
engaged under a contract of services whereas an independent contractor is engaged under a
contract for services. The liability of the employer for the wrongs committed by his servant is
more onerous than his liability in respect of wrongs committed by an independent contractor. If a
servant does a wrongful act in the course of his employment, the master is liable for it. The
servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the
master as well. The doctrine of liability of the master for the act of his servant is based on the
maxim Respondeat superior, which means, let the principal be liable’ and it puts the master in
the same position as if he had done the act himself. It also derives validity from the maxim qui
facit per allium facit per se, which means ‘he who does an act through another is deemed in law
to do it himself. Since for the wrong done by the servant, the master can also be made liable
vicariously, the plaintiff has a choice to bring an action against either or both of them. Their
liability is joint and several as they are considered to be joint tortfeasors.11

3.3 Liability Abatement

Those who abet a tortious act are equally responsible with those who commit the act. A person is
to abet an act when he
1. Knowingly for his own benefits induces another to commit a wrong.

10 r glofcheski, university of hong kong faculty of law research paper Tort Law Review, Vol. 12, No. 2, pp.
18-39, 2004, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1815884
11 Hilary term, united kingdom supreme court,bailii.org , [2016] UKSC 10 (2 March 2016),
http://www.bailii.org/uk/cases/UKSC/2016/10.html
 2. By use of illegal means directed against a third party, induces a person to do an act which
is detrimental to that third party although the person induced may be entitled to do that
act.

3. Advancement in Vicarious Liability

This is a general Rule that a Master is liable for the tortious Act of his/her servant. Thus, if the
employee negligently commits any act which causes any damage to the other then the employer
will be held liable for the tortious act of an employee. The act of the employee must be within
the course of employment. However, some cases are an exception to this general rule like
Mohammad vs Morrison Supermarket in which the employer was held liable for the wrongful
action of His employee which he did for his own reasons. But after that the Supreme Court
clarified this matter through various Judgments by imposing limits to which one can be held
liable for the acts of another.12
5. Judgments Related to clarification of Vicarious Liability
Employers can be liable for acts committed by their employees if it is found that their actions are
sufficiently connected to their employment. However, this doctrine of vicarious liability has also
extended beyond employment into other employment relationships, including those between an
organization and an independent contractor. In establishing this liability, there is a two-stage test:

1. Is the relationship between the wrongdoer and defendant capable of giving rise to
liability?
2. Is their employment sufficiently connected to their act?
The Supreme Court clarified the issues regarding Vicarious Liability through two important
Judgments. These are Barclays Bank Plc vs various claimants and WM Morrison Supermarket
plc vs various claimants.13

12 l, 2020, https://www.carson-mcdowell.com/news-andevents/insights/barclays-bank-v-various-
claimants-2020-uksc-13
13 Joel Tay, the doctrine of the ultra-hazardous act after ng huat seng, SMU LEXICON, DECEMBER 29,
2017
5.1 Barclays Bank Plc vs various claimants [2020]

Facts
Back in the 1980s, the bank engaged a doctor as an independent contractor in order to examine
new employees, many of whom were young women. Although he was required to produce a
report on each person he examined, these all took place in his own home. The doctor also
maintained a client list separate to the bank. Three decades later, a significant number of
accusations were made against this doctor, claiming he had sexually assaulted numerous people
while examining them. He had since passed away; however, 128 claims were brought against the
bank, with claimants asserting it was liable for his actions as he had been engaged by them.
Issue
Whether the Bank will be held liable for the act of doctor who was an independent Contractor?
Decision
In this case, it was clear that the doctor had been acting for his own business; he had a list of
patients and clients that only included the Bank and had been conducting his duties as a doctor
when the acts were committed. Also, there was no close contention between the Act of the doctor
who was an independent Contractor and the course of employment. Thus, the Barclays Bank
cannot be held Liable.14

5.2 WM Morrison Supermarket plc vs various claimants

Facts
Mr. Skelton, Morrison’s’ former senior internal IT auditor, downloaded the payroll data of c.100,
000 employees onto a personal USB and took it home. He later uploaded the data onto a file-
sharing website and sent anonymous links to three UK newspapers, motivated by a grudge
against his employer following minor disciplinary proceedings earlier that year.9,263 employees,
whose personal data had been disclosed, issued a claim against Morrison’s for damages for
breach of the Data Protection Act 1998 (DPA) and/or for the misuse of private information
and/or for breach of confidence by Mr. Skelton, in respect of whose conduct Morrison’s was
alleged to be vicarious liable.

14 Richard W. Danyliuk and Claire MacDougail McDougail Gauley, Recent Developments in Vicarious
Liability,2, 2005
Decision
Morrison Supermarket Was not vicariously liable as the tortfeasor was not acting within the
scope of his employment.15

6. Critical Analysis of the cases

By Critically Analyzing the Both cases we see the Supreme Court reluctant to apply the label of
vicarious liability, focusing on the importance of the facts for each particular case and
establishing the nature of the business that was being conducted by perpetrators. Fundamentally,
by analyzing the Case of Barclays Bank Plc vs various claimants [2020] that vicarious liability
cannot arise when it involves a genuinely self-employed individual or independent contractors
who commits an act while conducting their own business. That said, employers should always
observe situations where contractors are abusing their position and be prepared to act quickly if
an issue such as the one outlined here arises. Staff should also be encouraged to come forward
with any particular accusations they have, both about colleagues and contractors. From this
perspective, the decision is an important restatement of the longstanding legal principle that there
is no vicarious liability for independent contractors.
Similarly, WM Morrison Supermarket plc vs various claimants the Morrison Supermarket was
not held liable for the act of his employee Mr. Skeleton It concluded that there was no such
“close connection” in this case as the Disclosure did not form part of Mr. Skelton’s “field of
activities” in that it was not an act that he was authorized to do by Morrisons and because Mr.
Skelton was not engaged in furthering Morrisons’ business when he made the Disclosure. He
was pursuing a personal vendetta. The decision and commentary reveal that the mere fact that an
employee’s job provides them with the opportunity to commit wrongdoing is not sufficient to
establish vicarious liability. However, this case is a further example of data breach class actions
16
in circumstances where the claimants suffer no financial loss.

15 Id
16 olutimilehin edun and abiye eziekel, vicarious liability and it's applicability in a contract of employment,
September 10, 2018, http://readersclubspot.blogspot.com/2018/09/vicariousliability-and-its.htm
7. Vicarious Liability in the light of Islamic Law

The Islamic Sharia discusses all matters of religion and life. Therefore, religious consideration
takes effect as an internal control of human acts. In practice of laws, a man who had done a
wrong had to bear the effect of the wrong himself. A wrongdoer is imposed on the burden of
liability as the result of his wrongdoings. This is the general rule in law of tort, which is upheld
by Islamic law of tort. In Islamic law of tort, the term vicarious liability specifically does not
appear in exact terms in the classical books of fiqh, and fuqaha did not clearly mention these
terms in their writings.1 In brief, Islamic vicarious liability may be defined as the liability
imposed on one person for the tortious act or omission of another which causes loss to a third
person. A person is deemed to have duty of care, in which if he had breached the duty of care
either by commission or omission, he is liable for the act. Islamic law of tort also upholds this
principle, where it was widely stated in Al-Quran and hadith of Prophet PBUH17
For example,
“No bearer of burden can bear the burden of another”. (Surah Al-An ‘am verse 164) & (Surah
35: verse 18)

"The blame is only against those who oppress men with wrongdoing and insolently transgress
beyond bounds through the land.”

“If anyone does a righteous deed, it rebounds to the benefit of his own soul, if he does evil, it
works against his own soul.” (Surah Al-Jathiyah: verse 15)
“Every soul will be (held) in pledge for its deed”. (Surah Al-Baqarah: verse 286)

Prophet PBUH said “Indeed, your son does not commit any offence against you, nor do you
commit any offence against him.” (Sunan Ibnu Majah).
All of these verses and hadiths denote that a person will be liable for his own action, not another.
But there are some cases in which a person is held vicariously liable in Islamic Law. There is
evidence of vicarious liability is allowed in Islamic law of tort as an exception of mas’uliyyah
syakhsiyyah (individual responsibility) in hadith of Prophet PBUH “Every one of you is a

17 Abdul Basir Mohamed. (2000). Vicarious Liability: A Study of the Liability of Employer and
Employee in the Islamic Law of Tort. Arab Law Quarterly. Pp197-205
guardian and is responsible for his charge, the imam (ruler) is a guardian and is responsible for
his subjects, the man is a guardian in the affairs of his family and is responsible for his charges, a
woman is guardian of her husband’s house and responsible for her charges,, and the servant is a
guardian of his master’s property and is responsible for his charge.” (Sahih al-Bukhari)In this
hadith, it was stated that the guardian such as ruler, a man, a woman, and servant are persons
who will be imposed on liability for the tortious act or omission of another person who is under
their charge. This imposition led to the discussion of vicarious liability in Islamic law of tort.
The rule of vicarious liability in Islamic law of tort includes other areas such as liability of
coercer (mukrih) for his coercion of another person (mulji’), liability of a commander (Amir) for
his command to another person, liability of the state for any injury done by its workers, liability
of an owner for his building, liability of a master for his slave, liability of an owner for his
animals, and etc.18
CONCLUSION
Under Vicarious Liability a person can be held liable for the torts committed by
another person if that person shares a Master-Servant relation with him. The servant does the act
on behalf of his master and therefore the law of torts provides that any wrongful act which is
done in the course of employment by the servant is bound to make the master liable for it. There
have been several tests for determining the relation of master and servant and the Court also
applies its discretion according to the facts of the case to determine such a relationship. Vicarious
Liability deals with cases where one person is liable for the acts of others. In the field of Torts, it
is considered to be an exception to the general rule that a person is liable for his own acts only. It
is based on the principle of qui facit per se per allium facit per se which means, He who does an
act through another is deemed in law to do it himself. So, in a case of vicarious liability both the
person at whose behest the act is done as well as the person who does the act are liable. Thus,
Employers are vicariously liable for the torts of their employees that are committed during the
course of employment. In order that the liability of A for the act done by B can arise, it is
necessary that there should be a certain kind of relationship between A and B, and the wrongful
act should be in a certain way, connected with that relationship. So, a master is liable for the acts

18 Azuwa, H. (2018) The Difference of Vicarious Liability between English Law of Tort and Islamic
Law of Tort. Retrieved from academia.com. (PDF)
of his servant if the act is done in the course of employment. But where someone employs an
independent contractor to do work on his behalf he is not in the ordinary way responsible for any
tort committed by the contractor in the course of the execution of the work.