VICARIOUS LIABILITY

Author: Tanisha Pandey, 1st Year, BBA LL.B, New Law College, Bharati Vidyapeeth Deemed University, Pune.

The article has been written by the author while pursuing the internship programme with us.

Introduction

Whenever an individual commits an act which is unlawful, that individual is held liable for damaging the law and in this manner he is rebuffed appropriately. For example, A goes into the property of B without his consent, such an act of A adds up to trespass and accordingly he is punished. This is the general rule law of torts, however, in certain circumstances, an individual can be made liable regardless of whether he has not done any wrongful act, in the event that it is done by some other individual with whom he shares a specific relationship, for example, master-servant relationship or in a relationship of principal and agent, in such cases, his liability is called vicarious liability.

Vicarious liability implies the liability of an individual for an act committed by someone else and such liability emerges because of the kind of the relationship between the two. For example, A is a driver who works for B and while driving B’s vehicle for taking him to his workplace, he hits C, a person on foot because of his carelessness in driving. In such a case despite the fact that B was not driving the vehicle he will, in any case, will be held liable for the injury which was caused to C because of the carelessness of A.

Relationship Governed by Vicarious Liability

A. Master-Servant Relationship

Master and servant are terms used to clarify a lawful relationship among an institution (master) and worker (servant). In many cases, a master-servant accord is a settlement for services wherein the master has to directly control the activities of the servant. In a Master-Servant relationship, the master utilizes the services of the servant and he takes any action at the order of the master and accordingly an exceptional relationship exists between the two and if by any chance there is the occurrence of a tort committed by the servant, his master is likewise held liable. There are many instances wherein the servant does an act for his master and thus in law, it is considered that the master was doing that act himself, in this way if the servant commits an unlawful act the master will likewise be held liable for the equivalent. This liability of the master is based on the following two maxims :

Qui facit per allium facit per se – It implies that at any instance when an individual gets something done by someone else then the individual is seen to do such an act himself. For example, If A is the owner of a cab company and employs drivers to drive them for the purpose of availability of cab services in the city and in case one of his drivers gets into an accident because of his rash driving, then even though A did not drive the cab himself, he will be liable for the accident.

Respondent Superior– It implies that the superior is to be considered answerable for all the acts done by his subordinate. These two maxims have assumed a huge job in the advancement of the law of vicarious liability of the master.

Case Law: ICI vs. Shatwell – In this case, there were two brothers who were employed by the defendant. These brothers were carrying out an experiment for the defendant and there was a shortage of the wire. The other worker went to bring more wire but these brothers went ahead and did the experiment with the short wire later claimed damage from the defendant on the basis of rough justice but the defendant was held not liable because it was voluntary not fit injuria.[1]

B. Principal and Agent

Whenever a principal recruits an agent to accomplish his work it frames a principal-agent relationship between them. In such a relationship, the principal is held liable for the acts of his agent, if the agent has done a wrongful act while following the orders of the principal. There are two most significant elements of this relationship which are derivative authority where the principal needs to give his power to his agent when the agent is working for the benefit of principal and representative character where the agent working on the behalf of the principal must have the authority of representing the principal.

Case Law: State Bank of India Vs Shyama Devi– In this case, a person who was an employee of the bank was given a sum of money to be deposited in a bank by Shyama Devi who never checked the deposit receipts. the bank was not held liable even if that employee never deposited the money because he was not acting in the course of employment. [2]

C. Partners Relationship

All partners of an organization are held liable for all the wrongful acts done by any of them. So if any partner does an illegitimate act in the customary course of business of the firm all partners are held liable joint and several. A partnership firm can be held vicariously liable for carelessness done by any partner. Thus, the firm can be held vicariously liable for the customer’s damage.

Essentials of Vicarious Liability in Master-Servant Relationship

1. The person hired must be a servant:

If any individual recruited is working under the direction and control of the master, he is a servant. A servant is different in relation to an independent contractor as an independent contractor entity works under “contract for business”. This implies the independent contractor is one who is just determined what could possibly be done not how it is to be done. In this way, an independent contractor is allowed to work in his own particular manner thus the individual recruiting him isn’t in charge of him. So he can’t be held liable for the acts of an independent contractor.

2. The course of employment:

Another essential to prove this relationship is that the servant must have done the wrongful act while he was working in the course of employment. The course of employment essentially covers all situations that may happen while the servant is carrying out the task given by the master for a specific purpose that the master needs to accomplish. So the acts of the servant would fall under this class if he is doing the act which has been approved by his master or when the master himself has approved a wrongful method for doing the act. In the event that the servant does an act totally different in relation to the act which he has been approved to do by his master, it won’t be considered as done in the course of employment.

Case Law: Beard vs London General Omnibus Co.– In this case, the conductor during the absence of driver drove the bus to turn it around and caused a mishap. It was held that the conductor was not approved to drive the bus and subsequently was not working in course of employment, so the master of the bus was not held to be liable.[3]

The doctrine of Common Employment

The doctrine of common employment is a special case to the vicarious liability of a master for the acts of a servant working in the course of employment. This principle expresses that the master should not be held liable for the careless act of the servant done against another servant both acting under the common course of employment. The reasoning given behind this standard was that there is an inferred agreement of service by the servant where he has consented to face common challenges accidental to the employment. In India this doctrine was recently expressed to have a restricted application under specific acts however now it has been terminated by the amendment of Employers Liability Act in 1951.

Vicarious Liability of State

In the authority of principal, the State employs individuals to work for his benefit and delegates them certain duties. Such representatives while working under the position given to them by the State, sometimes do wrongful acts. To what extent the State would be liable for the torts committed by its workers is a compound issue particularly in developing nations with ever-widening State undertakings.

Case Law: State of Rajasthan Vs Vidyawati– The respondents filed a suit for the damages made by a representative of a State and the case addressed whether the State was liable for the tortious acts of its representatives. The Court held that the liability of the State in regard of the tortious act by its representative within the scope of his employment and working as such was like that of some other employer. It was held in this case that the State should be as much liable for tort in regard of[4] tortious acts committed by its representatives within the scope of his employment and working in that capacity, similar to some other employer.

Position in England

Preceding the Crown Proceedings Act, 1947 the King couldn’t be held liable for wrongs committed by its servants in course of their employment, the person committing wrongs used to be held separately liable and he was unable to take any defence of orders of Crown or state necessity. After the passing of this act, the position has changed and now the Crown can be held liable for unfair acts of its representatives like any other customary master.

Position in India

In India, in spite of the fact that there is no particular establishment managing state’s vicarious liability however provision has been made under the Indian Constitution under Article 300 where the union of India or State Government can sue and be sued like any customary resident. In any case, the detailed provisions clarifying how it will be created are absent and this void has been filled by different legal professions.

Act of servant of State done in discharge of obligation imposed by law

Prior the acts done in discharge of obligations forced by law was considered as a protection to the general rule of vicarious liability both in England and India yet, later on, passing of Crown Proceedings Act, 1947 the position changed in England.

Case Law: Kasturi Lal vs State of UP– The plaintiff who was travelling with jewelleries with the motive of exchange was taken into police custody along with his assets. At the time of his release, the gold jewellery he was conveying was not returned as it was swindled by the head constable. The State was not held to be liable in light of the fact that the police officer was acting in the discharge of legal powers which was sovereign in nature.[5]

Sovereign immunity subject to Fundamental Rights

The work done in exercise of sovereign functions of state used to be taken as defence however with the change in conditions, it has been discovered that this defence is dependent upon the fundamental rights of citizens ensured by Constitution of India. Case Law: Chairman Railway Board vs Chandrima Das- A woman who was assaulted by railway workers inside railway premises was held to be entitled to protection under Article 21 henceforth the State was held liable for the acts of its workers. [6]

Conclusion

In any case, the chance of vicarious liability is one that disentangles and moves across legitimate social orders, even practically identical to cross variety socialist structures. Moreover, I argue that divergence will rise in light of the possibility of neighbourhood real social orders. There have been many tests for deciding the relationship of master and servant and the Court likewise applies its judgement as per the realities of the case to decide such a relationship. The concept of vicarious liability is advocated on the ground that despite the fact that the master or state has not personally acted in the situation wherein unjust act has been done yet since he was in real power or control of the individual doing the unfair act liability for such unfair act ought not to be barred.


REFERENCES: [1] Imperial Chemical Industries Ltd v Shatwell 1965 AC 656

[2] State Bank Of India vs Shyama Devi on 5 May 1978 1978 AIR 1263, 1978 SCR (3)1009

[3] Beard v. London General Omnibus Co. L.R. (1900) 2 Q.B.D. 530

[4] The State Of Rajasthan vs Mst. Vidhyawati And Another on 2 February 1962 Equivalent citations: 1962 AIR 933, 1962 SCR Supl. (2) 989

[5] Kasturilal Ralia Ram Jain vs The State Of Uttar Pradesh on 29 September 1964 1965 AIR 1039, 1965 SCR (1) 375

[6] The Chairman, Railway Board & Ors vs Mrs Chandrima Das & Ors on 28 January 2000


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