Concept of Vicarious Liability and the Factors that are Instrumental in Deciding Vicarious Liability

Vicarious liability may be defined as the imposition of liability upon one party for the wrongs committed by another party[1]. Vicarious liability is used as a term to impose strict liability on a party who is not primarily liable, that is, not at fault. It literally means that one person is liable for the wrongs of another. It is a doctrine of wrongdoing that holds a person liable for the failure of another with whom the individual has a special relationship. Vicarious Liability is related to the Legal maxim “Qui facit per alium facit per se” which means that “he who acts through another does the act himself.”[2]

FACTORS THAT ARE INSTRUMENTAL IN DECIDING VICARIOUS LIABILITY

There are three main factors to decide if a particular case falls under vicarious liability. If any one of the factors are not met, there is a chance that the case won’t fall under vicarious liability. These factors are:

  • There must be a relationship of some kind

Vicarious liability is the liability which falls on one person due to the torts committed by another person. For one individual to be responsible for the acts of another, there must be a relationship between them. This is one of the most important that decides if a person is liable for the wrong of another. The most popular kinds of relationships where the vicarious liability might arise 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”
  4. “Liability of the State or Liability of the Administration”
  • An illegal act must be committed and it should be related to the relationship in certain way.

It is common knowledge that for a person to be held liable there must be a performance of an illegal act. Liability won’t arise just because an injury is caused to a third person. A legal right of a person should be violated for a liability to arise. In the case of vicarious liability, the act must be related to the relationship the wrongdoer possesses with his master. In Cheshire v. Bailey[3], the servant stole a property that was bailed to the master. The court held that the master is not liable because the master was the temporary owner of the property and the act of the servant is a crime against the master and it is not related to the relationship the servant shares with the master.

  • The act must be done in course of employment

For vicarious liability to arise against the master, a wrongful act must be committed by the servant during the course of employment. An act is said to be under course of employment if an act is authorised by the master and the act is done in a wrongful manner.

In the case of State Bank of India v. Shyama Devi[4] the plaintiff had given some money to be deposited in the bank to one of her friends who worked in the bank. This amount was misappropriated by the employee of the bank and a suit was filed against the bank under vicarious liability. The court held that the bank is not liable for the misappropriation of the money by the employee because the act was committed in his capacity as a friend and not as an employee of the bank thus making it out of the scope of the bank’s employment.


[1] Sykes, A. (1988). The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 563. Harvard Law Review (1988).

[2] Chidige Sai Varnitha, Law of Torts: Vicarious Liability of State, LEXLIFE INDIA (November 11, 2020) https://lexlife.in/2020/05/13/law-of-torts-vicarious-liability-of-state.

[3] Cheshire v. Bailey, (1905)1 K.B. 237

[4] State Bank of India v. Shyama Devi, AIR, 1978 SC 1263

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