Liability for commission of tortious acts usually only attaches to a person who commits such tortious acts. There however exists an exception to this general norm. Under certain circumstances, liability for commission of tortious acts attaches to a person who has not actually committed the tortious act, under the law of torts such a liability is referred to as ‘vicarious liability’. To make this easier to comprehend let us understand the same with the assistance of an example, ‘H’ who is the employer of ‘I’, can be held vicariously liable for tortious acts committed by ‘I’.
Two important legal principles underpinning vicarious liability
The doctrine of vicarious liability under the law of torts is predicated on two important as well as oft cited legal principles, they are as under:
- Respondeat Superior
The principle of Respondeat Superior under the law of torts prescribes that a superior must be held tortiously answerable or liable for the tortious acts committed by his or her servant or subordinate. Thereby, whenever a tortious act is committed by a person in the course of his or her employment under a person who is superior or master, the superior or master shall be held under the law to be vicariously liable for the tortious acts of his servant or subordinate.
2. Qui facit per alium facit per se
The principle of Qui facit per alium facit per se under the law of torts prescribes that a person who acts through another person is held by the law to have committed the act himself or herself. Thereby, a person who mandates another person to act on his / her behalf shall be held under the law to be vicariously liable for the tortious acts committed by a person acting in pursuance of such mandate.
Essential elements in order to give rise to vicarious liability
In order for a claim of vicarious liability to lie, a few elements are essential to be met. Firstly, it is essential that the tortfeasor and the person vicariously liable for the said tortious act share a certain kind of relationship that under the law gives rise to vicarious liability. Secondly, it is essential that the tortious act must be adequately connected with that relationship, in other words the tortious act must have been committed in the course of that relationship.
Some relationships that could lead to vicarious liability:
As mentioned hereinabove, the essential elements that have to be met in order to give rise to vicarious liability is that the tortfeasor must share a certain kind of relationship with the person vicariously liable for the said tortious act, and the tortious act must be adequately connected with that relationship. Hereunder are some examples of such relationships:
- Relationship betwixt a master / mistress & his / her servant;
- Relationship betwixt a guardian & his / her ward;
- Relationship betwixt an owner & an independent contractor;
- Relationship betwixt a principal & his / her agent;
- Relationship betwixt a firm & its partner(s);
- Relationship betwixt a company / body corporate & its director(s).
Does vicarious liability accrue to a State / Government?
The question as to whether the State / Government can be held vicariously liable (and if liability accrues, the extent of the same) for tortious acts committed by public servants, by no means has a straightforward, uncomplicated answer. Although, such salient legal questions are especially pertinent in respect of countries that fall under the category of developing nations wherein the scope and the extent of the State’s activities is ever expanding. The Constitution of India has enshrined under its provisions the principles of public law that pertain to the vicarious liability of the State / Government in respect of the tortious wrongs done by public servants and the same has been derived from the English Common Law.
State’s vicarious liability in India
Common law countries such as the UK (see, The Crown Proceedings Act, 1947) & USA (see, The Federal Torts Claims Act, 1946) have enacted statutes specifically pertaining to the vicarious liability of the State in respect of tortious wrongdoings committed by its public servants. However, India remains bereft of any such specific enactments pertaining to the vicarious liability of the Indian State. It is important to note however, that Article 300 clause (1) pursuant to the Constitution of India, does provide some knowledge pertaining to this topic. The concerned provision states as under –
“(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.”
Thereby, it can be concluded form the above stated provision that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State.
The case of P & O Steam Navigation Co. v. Secretary of State for India was the first Indian landmark judgment pertaining to vicarious liability of the State in respect of tortious acts of public servants. In the present case the plaintiff’s property (i.e., the horses pulling a carriage) sustained injuries because of the negligent conduct of the workers employed at a government Dockyard. The Court held that liability is accrued to the Secretary of State for India for the damages arising from the negligent conduct of its Dockyard workers. The raison’d’etre given by the Court being, the negligent conduct was not committed while exercising a sovereign function.
In the case of Nobin Chunder Dey v. Secretary of State for India wherein the plaintiff contended that the Government breached its contract with him for the issuance of a license for the right to sell liquors & drugs. The Court held that not only did the plaintiff fail to establish that the Government was in breach of contract with him but also held that even if that were to be the case, given that the said act had been committed while exercising sovereign power no liability accrues to the government.
To conclude, vicarious liability emanates from the law of agency that is predicated on the important common law principle of qui facit per alium facit per se which prescribes that a person who acts through another person is held by the law to have committed the act himself or herself. Further, vicarious liability is also predicated on the common law principle of respondeat superior which prescribes that a person who is in a superior position is tortiously liable for the wrongful acts committed by their subordinates or servants while acting in the course of his / her employment. It is important to understand that the scope of operation of vicarious liability is not restricted to people and corporations alone but also extends to the State for wrongful acts committed by public servants in the course of their employment, provided that the wrongful act is not in exercise of sovereign powers.
- INDIA CONST. art 300, cl. (1).
- Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective xlii (Cambridge University Press 2010).
- Muhammad Muzammil, Questions & Answers: Law of Torts 52 (Mansoor Book House).
- Adarsh Singh Thakur, Vicarious Liability by Authorisation and Ratification under Tort Law, iPleaders.in (Mar. 22, 2022, 3:42 PM), https://blog.ipleaders.in/ratification-of-vicarious-liability-under-tort-law/
- Subhyanka Rao, Vicarious Liability of State, Academike (Mar. 22, 2022, 4:00 PM), https://www.lawctopus.com/academike/vicarious-liability-state/
- Aastha Mehta, Contractual Liability of the State, Lex-Warrier (Mar. 22, 2022, 5:00 PM), http://www.journal.lex-warrier.in/tag/rex-non-potest-peccare/
- Divya Chauhan, Doctrine of Sovereign Liability, Aishwarya Sandeep (Mar. 22, 2022, 8:00 PM), https://aishwaryasandeep.com/2021/09/11/doctrine-of-sovereign-liability/
- Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, (1861) 5 Bom. H.C.R. App.I, p.1.
- Nobin Chunder Dey v. Secretary of State for India, (1876) ILR 1 Cal 12.
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