What do you mean by vicarious liability? Explain with decided cases. (2017)
Category : Law of torts
Vicarious Liability, As a general rule, a man is liable only for his own act but there are certain circumstances in which a person is liable for the wrong committed by others. This is called “vicarious liability”, that is, liability incurred for another. The most common instance is the liability of the master for the wrong committed by his servants. In these cases liability is joint as well as several. The plaintiff can sue the actual wrong-doer himself, be he a servant or agent, as well as his principal. In the words of Salmond, “In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of another, however, blameless himself.” The doctrine of vicarious liability is based on principles which can be summed up in the following two maxims, (a) Qui facit per alium facit per se, The maxim means, ‘he who acts through another is deemed in law as doing it himself. The master’s responsibility for the servant’s act had also its origin in this principle. The reasoning is that a person who puts another in his place to do a class of acts in his absence, necessarily leaves to determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the manner in which it is done, consequently he is answerable for the wrong of the person so entrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done, provided what is done is not done from any caprice of the servant but in the course of the employment. (b) Respondeat superior, This maxim means that, the superior must be responsible or let the principal be liable. In such cases not only he who obeys but also he who command becomes equally liable This rule has its origin in the legal presumption that all acts done by the servant in and about his master’s business are done by his master’s express or implied authority and are, in truth, the act of the master. It puts the master in the same position as if he had done the act himself. The master is answerable for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorised by the former and committed by the latter. Modern View, In recent times, however, the doctrine of vicarious liability is justified on the principle other than that embodied in the above-mentioned maxims. It is now believed that the underlying idea of this doctrine is that of expediency and public policy. Salmond has rightly remarked in this connection that “there is one idea which is found in the judgments from the time of Sir John Holt to that of LordGoddard, namely, public policy.” Modes of vicarious liability, The liability for others wrongful acts or omissions may arise in one of the following three ways, (a) Liability by ratification, Where the defendant has authorised or ratified the particular wrongful act or omission. (b) Liability arising out of special relationship, Where the defendant stands to the wrongdoer in a relation which makes the former answerable for wrongs .committed by the other, though not specifically authorised. This is the most important form of liability. Liability arising out of master and Servant
In order that the master may be held liable for the tort of his servant following conditions should be fulfilled,
(1) Tort is committed by the ‘servant’, and
(2) The servant committed the tort while acting in the course of employment of his master.
Who is servant?, Lord Thankerton has said that there must be contract of service between the master and servant has laid down the following four ingredients.
(1) the master’s power of selection of his servant,
(2) the payment of wages or other remuneration
(3) the master’s right to control the method of doing the work, and
(4) the master’s right of suspension or dismissal.
Thus, a servant may be defined as any person employed by another to do work for him on the terms that he is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. A servant is thus an agent who works under the supervision and direction of his employer, engaged to obey his employer’s order from time to time. Applying this test, a son is not a servant of his father in the eye of law.
Difference between Servant and Independent Contractor
(1) A servant is an agent who works under the supervision and direction of his employer. Whare as An independent contractor is one who is his own master.
(2) A servant is a person employed to obey his master’s directions from time to time. Whare as An independent contractor is a person engaged to do certain works, but to exercise his own discretion as to the mode and time of doing it!
(3) A servant is bound by the orders of his master but an independent contractor is bound by the terms of his contract. Course of employment,
A servant is said to be acting in the course of employment if,
(1) the wrongful act has been authorised by the master, or
(2) the mode in which the authorised act has been done is wrongful or unauthorised.
It is the general rule that master will be liable not merely for what he has authorised his servant to do but also for the way in which he does that which he has authorised to do. An employee in case of necessity is also considered as acting in the course of employment, if he is performing his employer’s business. For instance, a Government employee was travelling in a jeep to deliver medicines in the course of his duties. He had licence to drive and had also been authorised to drive the Government’s vehicle in the case of necessity. The driver of the jeep suddenly took ill and, therefore, he had to drive, in order to ensure the medicines reaching their destination, While driving the jeep he negligently run over the deceased, It was held that he was acting in the course of employment and thus the Government was liable, The trend of the recent decisions of various High Courts is to allow compensation to the accident victim against the owner of the vehicle and through him, the insurance company. The aspect of the relationship of the independent contractor and employer between the mechanic or the workshop and the owner of the vehicle has been generally ignored, such liability has been recognised on the basis of the law of agency by considering the owners of the workshop or the mechanic as an agent of the owner of vehicle. The recent trend in law to make the master liable for acts which do not strictly fall within the term ‘in course of employment’ as ordinarily understood. The owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of the employment but also when the driver is with the owner’s consent, driving, the car on the owner’s business or for the owner’s purposes. Thus, although the particular act which gives the cause of action may not be authorised, yet, if the act is done in the course of employment which is authorised, the master is liable. In other words, “to hold master liable for the wrongful act of a servant it must be committed in the course of master’s business so as to form part of it, and not merely, coincident in time with it,” but if the torts are committed in any manner beyond the scope of employment the master is liable only if he was expressly authorised or subsequently ratified them. Main incidents of Master’s Liability, There are six principal ways in which a master becomes liable for the wrong done by servants in the course of their employment. 1. The wrong committed by the servant may be the natural consequence of something done by him with ordinary care in execution of his master ‘s specific orders. In
“Indian Insurance Corporation, Association Pool, Bombay Verses Radhabai” the driver of a motor vehicle belonging to the Primary Health Centre of the State was required to bring the ailing children by bus to the Primary Health Centre. The driver in the course of driving gave the control of the steering wheel to an unauthorised person. ’twas an unauthorised mode of doing the act authorised by the master. It was held that in such circumstances, the Government, viz., the owner of the vehicle is vicariously liable for the negligence of the driver in permitting unauthorised person to drive the vehicle. 2. Master will be liable for the negligence of his servant. In Baldeo Raj Verses Deowati, the driver of a Truck sat by the side of the conductor and allowed the conductor to drive. The conductor caused an accident with a rickshaw as a result of which a rikshaw passenger died. It was held that the act of the driver in permitting the conductor to drive the vehicle at the relevant time was a breach of duty by the driver, and that was the direct cause of the accident. For such negligence of the driver his master was held vicariously liable. 3. Servant’s wrong may consist in excess of mistaken execution of lawful authority. Here two things have to be established.
In the first place, it must be shown that the servant intended to do on behalf of his master something which he was, in fact, authorised to do. Secondly, it has to be proted that the act if done in a proper manner, would have been lawful. 4. Wrong’ may be a wilful wrong but doing on the master’s behalf and with the intention of serving his purpose. If a servant performs some act which indicates recklessness in his conduct but which is within the course of his employment and calculated to serve the interest of the master, then the latter will be saddled with the responsibility for it. 5. Wrong may be due to the servant’s fraudulent act. A master is liable also for the wrongful acts of his servants done fraudulently. It is immaterial that the servant’s fraud was for his own benefit. The master is liable if the servant was having the authority to do the act, that is, the act must be comprehended within his ostensible authority. The underlying principle is that on account of the fraudulent act of the servant, the master is deemed to extend a tacit invitation to others to enter into dealings or transactions with him. Therefore, the master’s liability for the fraudulent acts of his servants is limited to cases where the plaintiff has been invited by the defendant to enter into some sort of relationship with a wrong doer. Consequently, where there is no invitation, express or implied, the acts will be treated as the independent acts of his servant himself, and outside the scope of his employment, 6. Wrong may be due to the Servant’s Criminal Act. Though there is no such thing as vicarious liability in criminal proceedings, yet in a civil action, a master is liable in respect of the criminal acts of a servant, provided they are committed in the course of his employment