Unit IV- Vicarious Liability

I.Introduction
Whenever a person commits an act which is unlawful, that person is held liable
for violating the law and thus he is punished accordingly. For e.g. A enters into
the property of B without his permission, such an act of A amounts to trespass
and thus he is liable.

This is the general rule of torts but in some situations a person can be made
liable even if he has not done any wrong, if it is done by some other person with
whom he shares a certain relation, such as master and servant or principal and
agent and in these cases his liability is called vicarious liability.

II.What is Vicarious Liability?

Vicarious liability means the liability of a person for an act committed by
another person and such liability arises due to the nature of the relation between
the two. For e.g. A, is a driver who works for B and while driving B’s car for
taking him to his office, he hits C, a pedestrian due to his negligence in driving.
In such a case even though B was not driving the car he will still be liable for
the accident which was caused due to the negligence of A.

III. Principles on which vicarious liabilityis

based-
1.Qui facit per alium facit per se: – It means that whenever a person gets
something done by another person then the person is viewed to be doing such an
act himself.

Illustration: If A is the owner of many trucks and employs drivers to drive them
for the purpose of trade and in case one of his drivers gets into an accident
because of his rash driving, then even though A did not drive the truck himself,
he will be liable for the accident.

2. Respondant Superior: – It means that the superior should be held

responsible for the acts done by his subordinate.
3. Public policy- According to modern social view the concept of public
policy serves social purpose i.e. the master employing servant is better able
to make good , and any damage caused to other by srrvant within course of
his employment.

IV.Essentials of Vicarious Liability

The essentials of vicarious liability are:

1. There must be a certain type of relation between the parties.

2. The wrongful act must be committed by another person.
3. The wrongful act must happen during the course of employment.

V. Modes of Vicarious liability

1. Vicarious liability by Authorisation
When the vicarious liability arises because of an act which is done by another
with the authority being given to act on their behalf, such liability is known
as a vicarious liability by authorisation.

In such cases, there is an express or implied authority which is given to

another person and since the act is done on behalf of another person, such a
person for whose benefit the act has been done will be held liable.

In these situations, a person also becomes liable for the direct consequences
which occur in the commission of the authorised act.

Illustration

B is a driver of A who is driving the car with A’s authority and while driving it
he causes an accident due to his negligence. Here even though A was not the
one driving the car, he will be liable because it was done on his behalf by B
with his authority.

2. Vicarious Liability by Ratification

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
the authority from the beginning.

Illustration

A is an agent of B who enters into an agreement on B’s behalf with C for an

unlawful act without B’s authority. Later B approves of such contract thereby
ratifies it. So, B will be vicariously liable for such unlawful act because he has
ratified it.

In the case of Commissioner of Police of the Magistrate Metropolis v.

Woks (2012) EQLR 209, it was held that for an employer to be liable for
the acts of his employee, he must have given his authority to such a person
to act in that manner and such an authority can be given either expressly or
impliedly and it may be done before the commission of the act, or after the
act has been done.

Thus, in the above case, the validity of the vicarious liability by ratification
was upheld and therefore such an act will make the ratifying person liable for
the tortious act of another.

3. Liability arises out of special relationship-

-Master and Servant
Vicarious liability in tort arises in specific relationships where one party (the
employer or principal) is held responsible for the tortious acts committed by
another party (the employee or agent). These relationships include:

The reasons behind holding the master liable for the actions of his servant are:

A servant is just an agent who is controlled and supervised by his employer. So,
the servant works according to the master which means he works in the manner
the master wants the work to be done. So, the liability for the actions of the
servant must be of the master.

The master always enjoys the profit derived from the efforts of the servant, so
he must also bear the loss that occurred by the activity of the servant but only in
the course of employment.
The master is financially stable than that of a servant. So, the master is more
suitable to pay for the damages caused by the tortious act of the servant. But the
masters are allowed to take reasonable care and precautions to prevent himself
from such situations.

Vicarious liability of Government for tort committed by its servants-

State of Rajasthan v/s Vidhyawati (1962)

Facts
A state employee negligently drove a government jeep, killing Jagdishlal, a
pedestrian walking on the footpath. Jagdishlal's widow and daughter sued the
state and the driver for damages.
Decision
The Supreme Court ruled that the state was liable for the driver's
negligence. The court held that the state is vicariously liable for the actions of
its employees, similar to any other employer. The court also rejected the idea of
sovereign immunity, which states that the king can do no wrong.

-Employer-Employee Relationship
Under the doctrine of vicarious liability, an employer can be held responsible
for the tortious acts of its employees. For example, if an employee of a company
negligently causes an accident while driving a company vehicle, the company
may be held liable for any resulting damages. This is because the employee was
acting within the scope of their employment at the time of the accident.

-Principal-Agent Relationship
Similar to an employer-employee relationship, a principal can be held liable for
the tortious acts committed by their agent. An agent is someone who acts on
behalf of the principal and is authorized to do so. For example, if an agent of a
real estate company commits fraud while representing the company in a
transaction, the company may be held liable for the agent’s actions.

-Partnership Relationship
In a partnership, each partner can be held vicariously liable for the tortious acts
committed by their fellow partners. This means that if one partner commits a
tort while acting on behalf of the partnership, all partners may be held
responsible for any resulting damages.
-Parent-Child Relationship
In certain circumstances, a parent can be held vicariously liable for the tortious
acts committed by their child. For example, if a minor child causes a car
accident while driving a family vehicle, the parent who owns the vehicle may be
held responsible for any resulting damages.

-Independent Contractor Relationship

In general, an employer is not held vicariously liable for the tortious acts
committed by an independent contractor. This is because an independent
contractor is not an employee and is generally considered to be operating as a
separate business entity.

VI. Difference between Servant and

Independent Contractor
A servant and independent contractors are quite similar as they both work for
the employer, which means both of them can not decide their choice of work,
the employer will assign the work to them but in the case of liability of tort, the
master is liable for the wrongful act of the servant but he is not liable for the
wrongful act of the independent contractor because the servant is engaged under
the contract of services while the independent contractor is engaged under the
contract for services. The work of an independent contractor can not be
controlled by the master.

VII. Exceptions to Vicarious Liability in Tort

Intentional Torts
Generally, employers or principals are not held liable for intentional torts
committed by their employees or agents. This includes acts such as assault,
battery, and defamation. However, if the employer or principal knew or should
have known about the employee’s propensity for such behavior, they may still
be held liable.

Independent Contractors
As previously mentioned, an employer or principal is generally not held
vicariously liable for the tortious acts committed by an independent contractor.
However, there are exceptions to this rule, such as when the contractor is
engaged in inherently dangerous activities or when the employer or principal
has retained control over the contractor’s work.

Acts Outside the Course of Employment or Agency

If an employee or agent commits a tortious act outside the course of their
employment or agency, the employer or principal may not be held liable. For
example, if an employee gets into a fight with a stranger while on a lunch break,
any resulting tortious acts would likely be outside the scope of employment and
therefore not the responsibility of the employer.

VIII. Conclusion.

Note-

1. add some more case law.

2. In unit IV there is another long question asked on Strict or absolute liability based on case

Rylands v/s Fletcher.