Vicarious Liability

Vicarious Liability
Generally, a person is liable for his own wrongful acts and one does not incur any liability for the
acts done by others. In certain cases, however, vicarious liability, that is the liability of one
person for the act of another person, may arise. In order that the liability of A for the act done by
B can arise, it is necessary that there should be certain kind of relationship between A and B, and
the wrongful act should be, in certain way, connected with that relationship.


The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.


So Vicarious Liability deals with cases where one person is liable for the acts of others. In the
field of Torts it is considered to be an exception to the general rule that a person is liable for his
own acts only. It is based on the principle of qui facit per se per alium facit per se, which means,
“He who does an act through another is deemed in law to do it himself”. So in a case of vicarious
liability both the person at whose behest the act is done as well as the person who does the act
are liable. Thus, Employers are vicariously liable for the torts of their employees that are
committed during the course of employment.
Reasons for vicarious liability
Several reasons have been advanced as a justification for the imposition of vicarious liability:
(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access
to resources via insurance, has in some cases had an unconscious influence on the development
of legal principles.
(2) Vicarious liability encourages accident prevention by giving an employer a financial interest
in encouraging his employees to take care for the safety of others.
(3) As the employer makes a profit from the activities of his employees, he should also bear any
losses that those activities cause.
Constituents of Vicarious Liability
So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
Servant and Independent Contractor
A servant and independent contractor are both employed to do some work of the employer but
there is a difference in the legal relationship which the employer has with them. A servant is
engaged under a contract of services whereas an independent contractor is engaged under a
contract for services. The liability of the employer for the wrongs committed by his servant is
more onerous than his liability in respect of wrongs committed by an independent contractor. If a
servant does a wrongful act in the course of his employment, the master is liable for it. The
servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the
master as well. “The doctrine of liability of the master for act of his servant is based on the
maxim respondent superior, which means ‘let the principal be liable’ and it puts the master in the
same position as he if had done the act himself. It also derives validity from the maxim qui facit
per alum facit per se, which means ‘he who does an act through another is deemed in law to do it
himself’.” Since for the wrong done by the servant, the master can also be made liable
vicariously, the plaintiff has a choice to bring an action against either or both of them. Their
liability is joint and several as they are considered to be joint tortfeasors. The reason for the
maxim respondent superior seems to be the better position of the master to meet the claim
because of his larger pocket and also ability to pass on the burden of liability through insurance.
The liability arises even though the servant acted against the express instruction, and for no
benefit of his master.
Conclusion
Vicarious Liability deals with cases where one person is liable for the acts of others. In the field
of Torts it is considered to be an exception to the general rule that a person is liable for his own
acts only. It is based on the principle of qui facit per se per alum facit per se, which means, “He
who does an act through another is deemed in law to do it himself”. So in a case of vicarious
liability both the person at whose behest the act is done as well as the person who does the act
are liable. Thus, Employers are vicariously liable for the torts of their employees that are
committed during the course of employment. In order that the liability of A for the act done by B
can arise, it is necessary that there should be certain kind of relationship between A and B, and
the wrongful act should be, in certain way, connected with that relationship. So a master is liable
for the acts of his servant if the act is done in the course of employment. But where someone
employs an independent contractor to do work on his behalf he is not in the ordinary way
responsible for any tort committed by the contractor in the course of the execution of the work
except in certain exceptional cases as dealt above.


So the servant and independent contractor are under contract of service and contract for service
respectively. The traditional view to distinguish between the two was the control test exclusively.
But in modern scenario this is not sufficient test as there is no single test. The significant
outcome can be achieved only by balancing different factors with the help of different tests like:
The nature of the employment test, the ‘integral part of the business’ test, Allocation of financial
risk/ the economic reality test/ multiple tests along with the control test.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.