PROJECT ON

VICARIOUS LIABILITY – LAW OF TORTS

A project submitted to
University of Mumbai for assignment completion of the degree of
Bachelor of Laws
Under the Faculty of Law

By
Mayuri Vikas Rane

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 INDEX

Sr. Contents Page

No No.
.
01. Project Name with students details 1

02. Declaration 2

03. Acknowledgement 3
04. Index 4

05. Introduction 5

06. Principles Governing Vicarious Liability 6

07. Liability by authorization or Ratification 7

08. Vicarious Liability between Master and Servant 7-12

09. Owner and Independent Contractor 13

10. Principal and Agent, Partners and Firm, 14
Company and Directors, Guardian and
Agent
11. Liability by Abetment 15

12. Conclusion and bibliography 15

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 INTRODUCTION

Normally, a person is held liable for his own wrongful act and not for the wrongful act done by
others. But some times due to some special relationship, he is held liable for tort of other person.

Vicarious liability means liability which is incurred for, or instead of, another. Every person is
responsible for his own acts. But there are circumstances where liability attaches to a person for
wrongs committed by others. Vicarious liability makes a person liable for damages, which
are not the legal consequences of his own act.

Liability is always joint as well as several – not only he who obeys but also he who commands is
liable.

Liability for another’s wrongful acts or omissions can arise in following ways:

1. Liability by authorization or ratification

2. Liability arising out of a special relationship

a. Master and servant
b. Owner and independent contractor
c. Principal and agent
d. Company and its directors
e. Firm and its partners
f. Guardian and ward

3. Liability by abatement.

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 Principles governing Vicarious Liability

1. Qui facit per alium facit per se :

The maxim means, ‘he who acts through another is deemed in deemed in law as doing
it himself’.

The master’s responsibility for the servant’s act had also its origins in this principle. The
reasoning is that a person who puts another in his place to do a class of acts in his
absence, necessarily leaves to determine, according to the circumstances that arise, when
an act of that class is to be done and trust him for the manner in which it is done.

Consequently, he is answerable for the wrong of the person so entrusted either in the
manner of doing such an act, or in doing such an act under circumstances in which it
ought not to have been done, provided what is done is not done from any caprice of the
servant but in the course of the employment.

2. Respondeat Superior:

Another maxim usually referred to in this connection is respondeat superior, i.e., the
superior must be responsible or let the principal be liable. In such cases not only he
who obeys but also he who commands becomes equally liable.

This 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 are
in truth, the act of the master.

The master is answerable for every such wrong of the servant as is committed in the
course of his service, though no express command or privity is proved. Similarly, a
principal and agent are jointly and severally liable as joint wrong-doers for any tort
authorised by the former and committed by the latter.

Example:  If an employee of a company commits fraud then the company will be liable
for it.

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 1. Liability by Authorisation OR Ratification

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 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.

Thus, ratification of an act relates back and thereupon becomes equivalent to previous request.

An act done by Meena, not for herself, but for Seema, though without the authority of Seema,
becomes the act of the principal Seema , if subsequently Seema ratifies the act, that is, assents to
the act and approves it.

2. Liability Arising out of a Special Relationship

A. Master and Servant

In a Master-Servant relationship, the master is the one who employees the servant for obtaining
the services provided by him and the servant works on the command of the master hence a
special relationship exists between the both of them and if in case a tort is committed by the
servant then even the master is liable for the same.

Tort includes all the negligence cases as well as the intentional wrong committed by a person.
There are so many cases in which it is implied that the master is doing the work. This implication
happens because the master has assigned the servant to do his work hence any wrong or any
unlawful act committed by the servant has the liability on the master of the same.

The relation of master and servant exists where the employer can not only direct what work the
servant is to do, but also control the manner of doing such work.
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The relation between a master and servant gives rise to four kinds of liabilities:

(i) Liability of the master to third parties

(ii) Liability of the servant to third parties
(iii)Liability of the master to the servant
(iv)Liability of the servant to the master

Liability of the Master to Third Parties

For holding the master liable to third parties, the two essential parts are:
1. The tort is committed by the Servant
2. The servant committed the tort in the ‘course of his employment’.

A master/employer is not responsible for all of the acts one of their servants/employees carries
out. Instead, for vicarious liability to be possible, the tortuous act must occur in the course of
employment.

The liability of a master is not limited only to the acts which he expressly authorizes to be done
but he is liable for such torts also which are committed by the servant in the course of
employment.

Roberts v. Shanks, (1924)

Defendant on alighting from his car ordered his chauffeur to take the car directly to the garage.
The chauffeur, however drove the car to his own residence, took his meal, and whilst driving the
car to the garage, negligently drove it into the plaintiff‟s car, and caused damage to it.

The Court held the defendant liable in damages, for, at the time of the accident, the chauffeur was
acting in the course of his employment.

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A master is liable for the wrong done by a servant in the course of his
employment as follows:

 When the master authorizes the servant to do an act and the servant performs it
accordingly i.e., in an authorized manner and if a tort is committed, the master is liable.
i.e. Authorised Acts and their natural consequences.

 If the servant commits a tort, while performing the work, by mistake, the master is liable
as the mistake of fact is no defence.

 The servant, in performing the work authorized, may come across certain incidental acts,
resulting in tort. In such cases the master is vicariously liable.

 When master gives certain instructions to the servant to be observed while performing the
work and in spite of such instructions if the servant willfully disobeys such instructions
and commits a tort, a master is liable.

 When a servant, while in the course of the performance of his duties as such commits a
fraud, the master would be liable for the same.

 The master is liable for the criminal acts done by the servant in the course of his
employment. The master is liable only in civil proceedings and not in criminal
proceedings.

A master will not be liable for the wrong done by a servant when:

 A servant is lent out to another person then the master who still controls the activities of
the servant and not just merely directs his actions will be the one who is liable.

 Where a master is obliged by law to employ a particular person and he does not have a
particular choice of his servant, he is not responsible for the conduct of the servant whom
he was compelled to employ.

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  The head of a government department is not liable for the wrongful acts of his
subordinates.

Case Law: State Bank of India v. Shyama Devi, AIR, 1978 SC 1263

Facts:
The respondents, in this case, opened a savings account in the plaintiff bank (formerly known as
Imperial bank of India) having introduced by one of their friends and employee of the bank,
Kapil Deo Shukla.

There was an arrangement between KD Shukla and respondent that former will deposit money in
the bank given by the respondent. KD Shukla duly deposited some amount but embezzled other
amounts.

The respondent sued the bank in the trial court contending that they are responsible for acts
committed by one of their employees. The trial court partly agreed to the amounts.

Held:
In an appeal to Supreme Court, it was held that bank cannot be made liable because the act of the
servant in this case has been done outside the course of employment.

The employee when he committed the fraud was not acting within the scope of bank’s
employment but in his private capacity as the depositor’s friend.

Liability of the servant to third persons

Whoever commits a wrong is liable for it himself and it is no excuse that he was acting as an
agent or servant on behalf, and for the benefit of another person. In such cases, the injured party
will have his remedy against both the master and the servant or either of them at his option.

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 Liability of the master to the servant
Master’s liability towards his servant for the injuries caused to the servant can be examined as
below:

I. At Common Law

At common law, a master is not liable of the servant assented to undertake the risk of injury. As
per the Maxim ‘Volenti non fit injuria’. The maxim means if someone willingly places
themselves in a position where harm might result, knowing that some degree of harm might
result, they are not able to bring a claim against the other party in tort or delict.

However, it is not enough for the master to show that the servant knew about the danger. The
master is bound the take all the precautions to secure the safety of the servant so as to prevent
him in getting into any unnecessary risk.

For example: While at work, servant was cutting and molding metal during which a part of the
metal went into the servant’s eye. The servant can claim damages from the employer, for having
failed to provide him with googles.

II. Under Workmen’s Compensation Act

The act compels employers to insure their servants against accidental injuries and deaths.

In India, under the workmen’s compensation act, 1923, if personal injury is caused to a workman
by an accident arising out of any work in the course of his employment, his employer is liable to
pay compensation.

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The Doctrine Of Common Employment (As An Exception To The Rule Of
Vicarious Liability)

The doctrine of common employment was introduced in the English law probably as a defence to
the principle of vicarious liability. This doctrine stated that an employer/master cannot be held
liable for the injuries of his/her servant caused by the negligence of a fellow servant.

This doctrine was first used in the case of Priestley vs. Fowler, 1837 where a butcher boy sued
his master due to the injury caused to him by the collapse of his master’s van. The master was not
held liable as the injury was caused to him due to the negligent overloading of his fellow servant.
The chief reason behind this judgment was to limit the liability of a master for the actions of his
servants only during the course of their employment.

At that time, it was considered to be fair, but later the use of this doctrine was extended to any
injury received by the servant for any ordinary risk of service. This became the reason for its
criticism.

Finally, after working on lot of permutations and combinations the defence of common
employment was abolished by the Law Reform (Personal Injuries) Act, 1948.

Liability of the servant to the master

In case damages have been recovered from the master by reason of the servant’s negligence in
doing the master’s work or in executing his order, such damages can be recovered by the master
from the servant.

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 B. Owner and Independent Contractor

An independent contractor is an individual who performs or works for another individual (the
principal) under an expressed or implied agreement and is one who is not under anyone’s control
and is independently responsible for himself and his actions unless certain cases make the person
who has hired the contractor responsible.

The difference between a servant and an independent contractor is the existence of the right to
control. He who controls the work is answerable for the workman, the remote employer who does
not control is not answerable.

The employer will be liable for the wrongs of an independent director as follows:

1. The employer would be held liable for the unlawful acts done by the contractor on the
authorization of the employer.

2. Where the employer retains his control and interferes into the act/contract so as to making
himself a party to the contract which occasions the damage, the employer would be held
liable.

3. Where it was the duty of the employer under a legal/statutory act to carry out the work in
a particular manner, and the contractor violates the terms or does the work in an improper
manner, the employer would be held liable.

4. The employer is liable where the thing contracted to be done is lawful but causes damage
to another’s property except when any preventive measure is adopted and the contractor
refuses to adopt such means.

5. Where an employer employs a contractor for a work/task wherein the employer knows
that the contractor is incompetent for such work or employer fails to give directions, the
employer will be liable for such negligent act of the independent contractor.

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 C. Principal and Agent
In case of the principal and agent relationship, the liability is joint as well as several. The injured
party may sue only the principal or only the agent or both.

To make a principal responsible for a wrongful act of his agent, it is necessary to show :
a. The agent has committed the act in the course of the employment, even if the
principal has not authorized/participate in the act or even disapproved it.
b. If the act was out of the scope of work, but the principal subsequently ratifies it.

D. Company and its Directors

Companies are liable for torts committed by their servants in the course of their employment.(the
act done should not be intra vires or ultra vires and should be done for the company.

Directors are personally liable for any tort which they either do by themselves or direct others to
commit, which may or may not benefit the company.

E. Firm and its Partners

The relationship of the partners and firm is that of principal and agent and each partner is liable to
third persons for the wrong committed by the fellow partner. Such wrong must be committed in
the course of the partnership business.

Example : Aman a partner of ABC Firm bribed the clerk of M/s. XYZ who is a competitor in the
same line of business and asked him to share a confidential information with regards to XYZ’s
business and hence M/s, XYZ suffered loss. The ABC Firm was held liable for the same.

F. Guardian and Ward

Guardians are not personally liable for torts committed by minors under their charge. However,
they can sue for personal injuries to minors under the charge.

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 3.Liability by Abetment
A person who procures the act of another is legally responsible for its consequences:
i. if he knowingly induces that person to commit the wrong for his own ends, or
ii. when the act complained of is within the right of the person actually doing it but is
detrimental to a third party and the person inducing it procures his object by the use of
illegal means directed against such party.

CONCLUSION

Vicarious liability is a legal concept which refers the liability of one person for the tort of another
in which he had no part. The intention behind vicarious liability is to provide compensation to
victim by the proper party who is accountable for the harm.

The most important basis for imposing vicarious liability is that the wrong doer be acting as a
servant & connecting with the employer & if it is proved that wrong doer doing work ‘in the
course of employment’ then only vicarious liability can be imposed on the defendant.

So, it is clear that vicarious liability will continue to operate significant role for the rights of
employees.

Biblography:

1. www.google.com
2. www.wikipedia.com

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3. Mr. Ratanlal and Dhirajlal, The law of Torts

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