The Doctrine of Vicarious Liability under the Law of Torts

Introduction

First, we need to understand what does Liability means, it simply means the state of being responsible for something. Liabilities are also known as current or non-current depending on the context. Here we are going to know about Vicarious Liability. It means that one person is held liable for the tort of another, also include that even a person held liable if he /she does not commit the act itself. Therefore, anywhere it is similar to strict liability. Generally, it was seen that employers are held liable for the torts of their employees that are committed during the course of employment.

The Doctrine of Vicarious Liability can also be termed as the heart of the common law system of tort. Generally, in law, the rule is that a person is liable for the wrongful acts done by him and no one else would incur the liability for his actions. But there are some circumstances under which a person is held liable for other acts and hence that is known as vicarious liability. For example, if A is an employee working under B (employer), if A does any wrongful act to others during his working hour then A is held liable for that wrongful act. But it is important that there must be a certain kind of relationship between the two and the act is done should be in a certain way related to that relationship.

Vicarious Liability

It is a type of liability in which one person is held liable for a wrongful act done by other. It can arise when one party is supposed to be responsible for (and have control over) the third party and is negligent in carrying out that responsibility and exercising that control. For example, an employer can be held liable for the unlawful actions done by an employee, such as harassment or discrimination in the workplace. An employer is also held liable if their employees sell an unlawful object without licence.

Vicarious  liability  is based on the following two maxims

1.Qui facit per alium facit per se: – which means that whenever a person gets something done by another person then the person is viewed to be doing such an act himself. For example, if A is a servant of B and C gets injured in an Accident caused by A during the course of his employment, then B will be held guilty of the same.

2.Respondant Superior: – It means that the superior should be held responsible for the acts done by his subordinate.

Some common relationship is as follows for Vicarious Liability and they are:-

  • Employer and Employee
  • Principal and Agent.
  • Master and Servant.
  • Partners in Partnership Firm.
  • Employer and Employee

In this doctrine, the employer is held responsible for the lack of care on the part of his employee in relation to those to whom the employer owes a duty of care. But it is important that the employee’s negligence must occur within the scope of his employment. The relationship of employer and employee either be expressed or implied. However, employers have the right to hire whom they want and the employees have the right to choose their employers as well. Moreover, the relationship of employer and employee cannot be imposed upon the purported employer or employee without permission.

Three requirements must be met to hold an employer liable for the actions of the employee.

  1. There must be an employer-employee relationship at the time when the wrongful act is committed by the employee.
  2. The employee must have committed a delict (a wrongful and culpable act that causes harm to another).
  3. The employee must act within the course and scope of his employment when the delict is committed.

In the case of State Bank of India vs. Shyama Devi, A.I.R. 1978 S.C. 1263, the plaintiff gave some amounts and cheques to the defendant who was an employee of the defendant bank. The money & cheques were given to be deposited in the bank account of the plaintiff; no proper receipt of such transaction was given. The defendant misappropriated the amount. It was held that even though the defendant was the employee of the bank, but when the money was given to him, he was not performing under the course of his duty, and therefore the bank can’t be held liable

In the case of Cassidy v Ministry of Health, The courts also viewed the imposition of vicarious liability as just due to the employer having a degree of control over his employees and has the ultimate power of dismissal, so they should ensure that employees do not carry out their work in a careless way. However, this is now seen to be outdated as many employees perform skilled tasks that the employer may not understand.

  • Master for torts by the servant

In this relationship when a master appoints the services to their servant and the servants work as the command given by his master and thus it forms a special relationship which exists between the two parties and hence in this case when the tort is committed by the servant then his master is also held liable. In many cases, it was seen that the servant does an act for his master and thus, it is deemed in the eyes of law 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.

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Essentials

Following are the essentials conditions that have to be followed for vicarious liability of the master

1. The servant has committed an act which amounts to a tort.

2. Such a tortious act is committed by the servant during the course of his employment under the master.

Test for Determining Master-Servant Relationship

There are certain tests which have been developed over a long period of time for determining Master and Servant relationship and they are;

Control Test

As per this test, for the determination of a master and servant relationship, it should be seen whether the master has the power to not only instruct what should be done but also the manner of doing the act and if such power exists then as per this test, the master and servant relationship exists between the two. For example, A is the owner of a big company and in that company, many workers are hired for work. Not only instructs them what to do but also how to do it. Here, by the test of control, the relation between A and his employees is established as that of a master-servant.

Modern View

The control test is not applicable as an exhaustive test because in cases of work requiring skill such as a doctor working in a hospital, the owner of the Hospital cannot instruct the doctor on how to treat a patient and can only instruct him to treat patients. Thus certain other tests have been developed for determining the Master and Servant Relationship.

Multiple Test

This test provides that people who are in a contract of service are deemed to be servant whereas the people who are in contract for service are independent contractors.

  • Principal & Agent

In this relationship where a person has got the authority to perform a certain act, but he authorizes it to someone else working under him, this relationship is known as a principal-agent relationship. It is based on the principle “Qui facit per alium facit per se” which refers to the act of an agent, is the act of the principal.  Principal and agent both liability is joint and several. The authority which was given by the principal to his agent may be express or implied.

 In the case of Lloyd vs. Grace, Smith & Co., In this case, the plaintiff was the owner of two cottages, but she was not satisfied with the income so received from those. Therefore, she ultimately reached the office of Grace, Smith & Co. which was a firm of solicitors, engaged in the working of consulting about the property matters. She told her problem, as a result, the managing clerk of the company advised her to sell the cottages and invest the money in some nice place. She accordingly agreed to the same, she was asked to sign the sale deeds for the cottages, but instead of that, the clerk by doing fraud made her sign on gift deed in the name of the clerk. He then sold the cottages and misappropriated the proceeds. He had done the act solely for his own personal profit, without the permission of his principal. It was held that even though the agent acted in his personal capacity but was acting in the course of his apparent authority, and hence the principal was held liable for fraud.

In order for a principal to be held liable for the actions of an agent, the following three requirements must be met:

  1. A principal-agent relationship must exist at the time when the delict is committed.
  2. The agent must commit a delict.
  3. The agent must have acted within the scope of his authority when the delict was committed.
  4. Partners

Relation in which if the wrong was done by one partner which falls under tort law then the other partner is also liable in the same manner as the principal is held liable for the wrongful act of his agent. Hence the rule of law of agency applies in cases of their liability also. As for the wrongful act of one partner of a firm then all other persons would be held liable for the same tort.

In the case of Hamlyn vs. Houston & Co., the fact is that one of the partners of the partnership firm bribed the plaintiff’s clerk to give him the secret information of the plaintiff’s business. It was held that both the partners of the firm to be held liable for inducing breach of contract, which is a wrongful act although the act was committed by only one of them.

Also Read:- General Defences in Tort

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