Meaning and Definition:
The doctrine of ‘vicarious liability is generally termed as ‘liability for the acts of others. Vicarious is derived from the Latin term ‘vice’ i.e., in the place of. By this phrase, we mean the liability of a person for the tort of another in which he had no part. It may arise under the common law or under the statute. The term is claimed to be invented by the English jurist Frederick Pollock in the 1880s.
Vicarious can be defined as “a concept used to impose strict liability on a person who does not have primary liability, that is, not at fault.” Vicarious liability is not a tort. Literally, it means that one person is liable for the torts of another. The employer is liable for the torts of his employee.
“Liability based not on a person’s own wrongdoing, but rather on that person’s relationship to the wrongdoer”. This liability arises only when the employee is acting in the course of his or her employment.
The case of Tuberville v. Stamp, (1697) held that “the master would be liable for his servant’s tort if he had given his implied command”.
Vicarious liability/ Liability for another’s wrongful acts or omissions may arise in the following three ways:
1) Liability by ratification, i.e., where the defendant has authorized or ratified subsequently the particular wrongful act or omission having full knowledge of its tortuous character whether it be to his detriment or advantage.
Such an act becomes the act of the principal in the same way as if it were done with his previous authority.
It is explained through the maxim “Omnis ratihabitio retrotrahitur, et mandato priori aequiparatur” which means that – every consent given to what has already been done, has a retrospective effect and equals a command.
It has been explained in the case of Wilson v. Tumman, (1843) 6 M&G 236 (242), as – “an act is done, for another, by a person not assuming to act for himself, but for some other person; though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is the known and well-established rule of law”.
Three conditions are to be satisfied before one person can be held liable for another’s tort on the ground of ratification.:
a) only such acts bind a principal by subsequent ratification as were done at the time on his behalf. This necessarily implies that what is done by a person on his account cannot be effectually adopted or ratified by another;
b) the person ratifying the act must have full knowledge of its tortious character; and
c) an act that is illegal and void cannot be ratified.
2) Liability arising out of a special relationship, i.e., where the defendant stands to the wrongdoer in a relationship which makes him answerable for wrongs committed by the latter, though not specially authorized, e.g., master-servant relationship. So the constituents of vicarious liability in the special relationships are:
a) There must be a relationship of a certain kind.
b) The wrongful act must be related to the relationship in a certain way.
c) The wrong has been done within the course of employment.
3) Liability by abetment, i.e., where the defendant has induced another to commit a wrong. A person who procures the act of another is legally responsible for its consequences-
Basis/Principles of Vicarious liability:
• Qui facit per alium facit per se
Any person who authorizes or procures a tort to be committed by another is responsible for that tort as if he had committed it himself. The maxim underlying the doctrine is “Qui facit per alium facit per se” i.e., he who does an act through another, does it himself. In such a case, the person authorizing is liable, not only for the tort actually authorized, but also for its direct consequences.
• Respondeat Superior
The master is answerable for every such wrong of the servant or agent as is committed in the course of the service, though no express command or privity of the master is proved. The maxim means
Let the superior/principal be liable/responsible. The rule has its origin in the legal presumption that all acts done by the servant in and about his master’s business are done by his master’s express or implied authority, and in truth the acts of the master.
• Social Policy Considerations/ Social Expediency Rule
“In the great majority cases, an employer who has to pay damages for the torts of his servants does not in fact have to meet these liabilities out of his own pocket. The cost of the liabilities is distributed over a large section of the community and spread over some time. This occurs partly because of the practice of insurance, and partly because most employers are anyhow not individuals but corporations.
Where the employer insures against his legal liabilities he will charge the cost of insurance for the goods or services he produces. In general, this cost will be passed on by the employer in the form of higher prices to the consumer. The consumer himself may also be able to play his part in spreading the cost in his turn, because not all consumers are themselves, individuals. In this way, the cost of tort liabilities is spread very thinly over a substantial part of the public. It is, moreover, spread over a period of time”.
Several reasons have been advanced as a justification for the imposition of vicarious liability:
a) 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.
b) Vicarious liability encourages accident prevention by giving an employer a financial interest in encouraging his employees to take care of the safety of others.
c) As the employer makes a profit from the activities of his employees, he should also bear any losses that those activities cause.
In the words of Lord Chelmsford: “It has long been established by law that a master is liable to third persons for any injury or damage done through the negligence or unskilfulness of a servant acting in his master’s employ. The reason for this is, that every act which is done by a servant in the course of his duty is regarded as done by his master’s order, and, consequently, it is the same as if it were master’s own act”.
Liability arising out of special relationships
a. Principal and Agent,
c. Master and Servant
d. Independent Contractor
PRINCIPAL AND AGENT
Agent – A person who, otherwise than as servant and otherwise than as an independent contractor, whether by way of contract or only by way of request, conducts some business or performs some act or series of acts on behalf of another i.e., principal.
Example- If A authorizes B to drive his car and if B somehow meets with an accident and injures someone, then A will be held vicariously liable. Here, authorization is an important ingredient to hold the principal liable.
In Ormord v. Crosville Motor Services Ltd., (1953) 2 All ER 753 the defendant was about to compete in the car rally and asked his friend to drive his car from Birkenhead to Monte Carlo so as to meet the defendant at the end of the rally there. The friend had to carry a bag in the car for the defendant as both of them had to go on a holiday after completion of the program. When the friend departed from Birkenhead for Monte Carlo met with an accident and collided with an omnibus. The Court held the defendant liable for his friend who was using his car.
Section 4 of the Partnership Act, 1932 defined Partnership-
“Partnership is the relation between persons who have agreed to share the profit of business carried on by all or any one of them acting for all.”
In short, the term is defined as a voluntary contract between two or more competent persons to place their money, effects, labor, and skill or some or all of them in lawful business with the understanding that there shall be sharing of profit between them.
Partners are vicariously liable for torts committed by their co-partners acting in the ordinary course of the firm’s business. The liability of partners is governed by section 26 of the Partnership Act, 1932-
“Where, for any wrongful act or omission of any partner acting in the course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm….. the firm is liable therefore to the same extent as the partner so acting or omitting to act.”
In Hamlyn v. Houston and Co., (1903) 1 KB 81 the defendant company’s partner bribed a clerk of the competing firm to know the details of the contract. The Court held the firm liable as the partner was acting in the course of the firm’s business. Hence the firm was vicariously liable.
MASTER AND SERVANT
• Servant – Servants can be distinguished from other kinds of agents by reference to the degree of control exercised, or exercisable, over them by their master. Depending upon the control of master on the person he is said to be the ‘servant’.
• The liability of the master for the tort which has been committed by his servant is based on the maxim – ‘respondeat superior’ i.e., literally, “let the master answer” or simply, superior is responsible. In the law, it is established that he who employs another to do something does it himself or he who does an act through another is deemed in law to do it himself.
• Servants are engaged under the ‘contract of service’ where a master has control over the servant by ordering or requiring him “what is to be done” and “how it shall be done”. If a master controls a man by ordering him ‘what is to be done and ‘the manner in which the work has to be done, then the man is a servant, otherwise, he is not.
• But today, vicarious liability has been extended. Earlier, hospital authorities were not held to be vicariously liable for the activities of their professional staff because they lacked the power of control over the manner in which the work as to be done.
• But, now the hospital authorities are held liable not only for the negligence of the nursing staff, but also for that of radiographers in whole-time service, resident house surgeons, and a whole-time medical officer or surgeon as it was held in Gold v. Essex, (1942) KB 203; Collins v. H.C. Council and Cassidy v. Ministry of Health, (1951) 2 KB 343.
In Mooren v. Swinton & Pendlebury Council, (1965) 2 All ER 351. held- “the cases have over and over again stressed the importance of the factor of superintendence and control, but that is not the determining test is quite clear. Clearly, superintendence of control cannot be the decisive test when one is dealing with a professional man or a man of some particular skill and experience.”
Difference between Servant and Independent Contractor
|Servants acts under the control and supervision of the master||Independent Contractor acts independently|
|Contract of services||Contract for services|
|The employer-Employee relationship exists between the Master and Servant||A contractual relationship exists between the Employer (Master) and the Independent Contractor|
|Master is liable for the torts committed by his servant||Independent Contractor is liable for the torts committed by his servants.|
|Servant can be suspended or terminated by his master||Independent Contractor cannot be suspended or terminated by the Employer. However, the employer can repudiate the contract in case of violation of the terms of the contract by the Independent Contractor|
6. Ratanlal & Dhirajlal The Law of Torts 28th Edition by Lexis Nexis Publication
7. R.K. Bangia Law of Torts, 26th Edition 2021 by Allahabad Law Agency
8. M.N. Shukla The Law of Torts 18th Edition Central Law Agency
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