Vicarious liability in tort

This Article discusses about the Principle of Vicarious Liability in tort law.

Introduction to 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” in tort, 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.”

Principles of vicarious liability in tort

The doctrine of vicarious liability in tort is based on principles which can be summed up in the following two maxims,

1. 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.
2. Respondent 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.

Contemporary View on Vicarious Liability

In recent times, however, the doctrine of vicarious  liability in tort 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 Lord Goddard, namely, public policy.”

Modes of vicarious liability in tort

The liability for others wrongful  acts  or  omissions also called vicarious liability in tort law, may arise in one of the following three ways,

1. Liability by ratification, Where the defendant has authorised or ratified the particular wrongful act or omission.
2. Liability arising out of special relationship, Where the defendant stands to the wrong- doer 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.
3. 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. Where 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. Where 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 authorized by the master, or
2. the mode in which the authorized act has been done is wrongful or unauthorized. It is the general rule that master will be liable not merely for what he has authorized his servant to do but also for the way in which he does that which he has authorized 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 authorized 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.

• 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 v.  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.  ‘this was 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 personto drive the vehicle.

• Master will be liable for the negligence of his servant.

In Baldeo Raj v. 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.

• 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  proved that the act if done in a proper manner, would have been lawful.

• Wrong’ may be a willful 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.

• 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,

• 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.

Cases of vicarious liability in tort

In State of Rajasthan v. Vidhyawati, the driver of a Rajasthan Government’s jeep which was meant for the use of the collector was taking it from the repair shop to the collector’s residence. On way, owing to rash and negligent driving, a pedestrian was knocked down and killed. The widow of the victim sued the Government for  damages.  Held, the State Government was vicariously liable for the tortious acts of  its servants, like any other employer.

In Fatima Begum v. State of Jammu & Kashmir, a truck belonging to the Government Transport Undertaking knocked (town a cyclist while it was engaged in transporting police personnel from the place of duty to barracks. The High Court rejected plea of defence of sovereign immunity and held the  State  Government  liable.

In lqbal Kaur v. Chief of Army Staff, an accident occured due to the  negligent driving by a driver of the Government while he was going with a truck for imparting training in motor driving to new recruits. Held, the act did not constitute an act in exercise of sovereign power and the Union of India was liable for damages.

In Union of India v. Savita Sharma, soldiers were being transported in an army vehicle. Negligence on the part of its driver resulted in an accident to a private tempo. An occupant of ths tempo was injured in the accident. Held, the State was liable for damages.

In State of Tamil Nadu v.M.N. Shamsuden, the death of a person was caused by an ambulance belonging to the Government which was being used for transporting a patient for emergency treatment. The Madras High  Court disallowed  the protection  of immunity on the ground that transporting of the patient to the hospital could be done even by private individuals.

In Surjit Singh Bhatia v. Segalla Ramula, a military vehicle dashed against a motor cycle and caused injuries to the pillion rider. The Punjab & Haryana High Court rejected the plea of sovereign immunity.

In Indian Insurance Corporation Asson Pool v. Radhabai, it has been held that taking ailing children to Primary Health Centre in a vehicle belonging to the State Government is not a sovereign function and the State is liable  for  the  accident  caused by the negligence of the driver of such vehicle. It was a case decided on the lines of Vidyawati’s case.

In Union of India v. Harbans Singh, meals were being carried from the cantonment, Delhi for being distributed to military personnel on duty. The truck carrying the meals belonged to the military department and was being driven by a military driver.  It caused accident resulting  in the death of a person.  It was held that the act was  being done in the exercise of sovereign powers, and therefore, the State was not liable for the same.

In Pushpa Thakur v. UOI, where the truck involved in accident was engaged in carrying ration and sepoys within the country during peace time in the course of movement of troops after the hostilities were over, held that this is a “routine duty”  not directly connected with carrying on of war, the traditional sovereign function.

In  Ram Ghulam v. State of Uttar Pradesh,  the  police  authorities  recovered  some stolen property and deposited the same in the Malkhana. The property was again stolen from the Malkhana. The Government of U.P.  was held not liable for the same to   the   owner   of   the   property   as   the   Government   servants   were  performing obligations imposed by law. Similar decision was given  in  Mohd. Murad v. Govt. of Uttar Pradesh.

In State of U.P. v. Hindustan Lever Limited, the act of the Government servants was in exercise of statutory powers but the powers in that case were not  sovereign  powers, and therefore, the State was held liable. In People’s Union for Democratic Rights v. Police Commn, Delhi, the State was ordered to pay compensation to victims of police firing.The police fired without any warning on a group of poor peasants who had collected for a peaceful meeting.

In order to exempt the State from liability it is further necessary that the statutory functions which are exercised by the Government servants were exercised   by way  of delegation  of  the  sovereign  power of  the  State.  In case  the tortious  act committed by the servant was in discharge of non-sovereign functions die State would be liable for the same (Kasturi Lal’s case; State of U.P. v. Hindustan Lever)

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