INTRODUCTION

The general norm is that a person is responsible for his own wrongdoings,
and no one else could be held responsible for his or her actions but this is
not the rule in all cases and in some circumstances, one person could be
held liable for the actions of another as well, which is when the concept of
vicarious liability arises.

Vicarious Liability in simple terms refers to a situation where someone has

been held responsible for the actions or omissions of some other person.
The doctrine of vicarious liability is based upon two maxims -Respondent
superior which means the principal is liable and Qui facet per alium facit
per se which means that he who does an act through another does it
himself.

Further, this kind of a liability is considered to be a saving clause for the

inferior who acts on behalf of their superior's order, which consequently
leads to a tortious act. This article with the use of landmark case laws
would provide a clear picture of the various types of vicarious liability that
exist.

VICARIOUS LIABILITY
Before delving into the concept of vicarious liability, it's vital to remember
that this one of the types of tortious liability, and it literally means "liability of
a person for the tort committed by another." To further comprehend,
consider the following scenario: X is an employee of Y, and while doing his
work, a third party is injured as a result of his negligence. Here, because X
was under the employment of Y, this case falls under the idea of vicarious
liability and Y would be held liable for X's act for two reasons: first, it was
done in the course of employment, and secondly, Y had permitted him to
do so.

The important thing to note here is that vicarious liability does not occur in
all cases. For instance, in this given example itself, just because X
committed something wrong does not automatically render Y liable. Only
when there is a particular relationship between two people does the
concept of vicarious liability come into play. So, in this example, if X and Y

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are in a relationship that is protected by vicarious liability, Y could be held
accountable.

After seeing the above example, it is clear that vicarious liability cannot
occur in any case and that certain conditions must be met in order for it to
fall into this category. The following are the essentials that are required to
be present in the case of vicarious liability:

a) There must be a relationship of a certain kind.

b) The wrongful act must be linked to the relationship present.

c) It should have occurred during the course of employment.

KINDS OF VICARIOUS LIABILITY

When we look at what creates vicarious liability, we see that the aspect of
relationship is heavily emphasized. This relationship can be better
understood by looking at the different types of vicarious liability that can
occur. The vicarious liability is generally used in four cases: principal-agent,
master-servant, employer-independent contractor, and among the partners,
and would be explained in detail below with the help of cases.

Principal and Agent

A person employed to perform any act for another or to represent another

to a third party is known as an agent, whereas the person for whom the act
is performed or who is represented is known as the principal. Further, the
agent establishes a relationship between the principal and the third party.
Therefore, the principal is bound by the agent's act as if he did it himself,
due to a contractual obligation being present. So, if an agent does a
wrongful act during employment for the principal, the principal will be held
accountable for the act. It should be noted that the aggrieved party may
sue either or both of them and that if the aggrieved party decides to sue the
agent and obtain damages, any action against the principal would be
barred. Apart from this, it is also seen that if the agent performs some

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activity in the principal's absence that benefits the principal, he will be held
liable because the agent acted for the principal.

In the case of State Bank of India vs Shyama Devi (1978), Shyama Devi's
husband gave money to a friend who worked at the State Bank of India to
be put in Shyama Devi's account. It was observed that the respondents did
not obtain a formal receipt for the deposits, which shows that the employee
misappropriated the money. Therefore, the Supreme Court held that the
employee was not operating in the course of his employment with the bank
when he committed the fraud, but rather in his personal position as the
depositor's friend, and thus the bank could not be held liable.

Further, in the case of Trilok Singh vs. Kailash (1986), the owner of the
motorcycle was outside the country and without his knowledge or
permission, his younger brother rode the motorcycle and caused an
accident. The court held that the younger brother could not be held
vicariously accountable for the accident since he was not deemed to be the
agent of the motorcycle's owner.

Master and Servant

The master-servant relationship is similar to the relationship between a

principal and an agent but the only difference to be noted is that a servant
is not the same as an agent, and the two terms should not be used
interchangeably. A servant is a person engaged by another to perform work
under his master's direction and supervision. Apart from this, just as the
principal is held liable for the agent's wrongdoings, the master is held liable
for the servant's wrongdoings. Furthermore, just as we saw with principal-
agent, a master is liable not just for the acts performed by the servant, but
even for acts are done by him which are not specifically ordered to do but
yet have been done during employment.

The master is liable for a number of torts committed by the servant,

including fraud, theft, mistake, negligence, and wrongful delegation of
duties. Just as the master is vicariously liable for the conduct of the servant
because of their relationship, there are also acts for which the master is not

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liable despite being in the master-servant relationship. To understand this
better a few instances have been explained below:

A. If there is a loss or harm that occurs without the master's fault or

knowledge.
In the case of Beard vs London General Omnibus Co.
(1900), the driver of a bus had gone to have dinner, leaving the
bus in the custody of the conductor, who chose to turn the bus
to keep it ready for the return. And while doing so, he
inadvertently knocked down a bystander. It was held in this
case that the master was not liable because the conductor
acted beyond the scope of his employment.
B. The servant violates an express restriction by acting outside the
scope of his or her employment
It is clear by now that the master is liable for acts done by
the servant during his employment. But it is worth noting here
that, when a servant does an authorized act in an unauthorized
manner the master would be made liable primarily because it is
done during the course of employment. This exception of not
being liable is only when the employee is prohibited from doing
something and is outside the course of employment. The
relevant case to cite here is the caliphs vs. London General
Omnibus (1862), where the owner of a bus was given express
instructions to not overtake or race but the bus driver
disobeying the instructions overtook another bus which
resulted in an accident. Therefore, the bus owner was held
liable for the negligence of the driver here as the driver’s
negligence took place during the course of employment.
C. If the servant is temporarily lent to another person and the temporary
master exercises control and supervision over the servant, the
master may not be accountable for the servant's actions.
This point would be understood better referring to the
case of Mersey Docks and Harbour Board v. Coggins and
Griffiths (Liverpool) Ltd. (1947), in which the Harbour Board
possessed a number of mobile cranes, each driven by a skilled
driver employed by them. For loading a ship, some stevedores
hired a crane with a driver. Later on, A was harmed as a result
of the driver's recklessness. On this incident, the House of
Lords observed that although the driver was under the

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 immediate control of the stevedores at the time of the accident,
it held the Harbour Board, the driver's general and permanent
employer, was liable to A and the stevedores were not because
the stevedores had no power to direct the driver how to operate
the crane.

Employer and Independent contractor

Generally, the employer is not liable for the torts committed by an

independent contractor employed by him. However, this rule has some
noted exceptions where an employer can be made liable for the wrongs of
the independent contractor.

A. If the employer authorizes the doing of an illegal act.

B. The employer’s liability arises for the dangers caused on or near the
highway.
C. An employer is liable for the act of an independent contractor in
cases of strict liability.

In the case of Tarry vs. Ashton (1876), an independent contractor installed

a lamp on the outside of a person's residence. The lamp, which had been
installed, was hanging and injured a passer-by. The individual who had the
lamp fixed was found to be accountable since he had a responsibility to
ensure that the job was done correctly.

Partners

The wrongs committed by one partner will make the other partner
accountable in the same way as the principal is held liable for the wrongful
act of his agent. In other words, if one partner of the firm does a wrongful
act, all other partners will be held liable to the same amount as the guilty
partner. The case to cite here is Hamlyn vs. Houston (1903), where it was
found that one of the partnership firm’s partners had bribed the plaintiff's
clerk to provide him with confidential information about the plaintiff's
business. The court here held that both the partners of the firm would be
held liable for inciting a breach of contract, which is a wrongful act, even if it
was one of them who had committed the act.

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VICARIOUS LIABILITY OF STATE
Looking at the law in England, earlier the Crown could not be sued in tort
for wrongs that it had actually authorized or that its workers had committed
while in employment. But, the Crown, is now liable for the torts committed
by its servants, just like a private individual, according to the Crown
Proceeding Act, 1947.

In comparison in India, we see that there is no formal framework governing

the state's liability. However, the Union of India and the states can sue and
be sued under Article 300 of the Indian Constitution although it is unclear
under what circumstances this can be done, and is up to the courts to
decide each case based on the facts. Furthermore, it appears that courts
hold the state liable for torts committed by its servants only when they are
performing non-sovereign functions, based on several High Court and
Supreme Court decisions. The state cannot be held liable for a tort
committed by its servants while performing sovereign functions. Thus, there
are two landmark cases to note here:

In the case of State of Rajasthan v. Vidyawati (1962), the driver of a jeep

owned and maintained by the State of Rajasthan for the official use of the
Collector of the district drove it rashly and negligently while returning it from
the workshop to the Collector's residence after repairs, knocking down a
pedestrian and fatally injuring him. Thereafter, the State was sued for
damages. The Supreme Court held that the State was vicariously liable for
damages caused by the driver's negligence. Further, through this case, an
additional condition was added that needs to be looked upon in State
immunity of sovereign and non-sovereign functions as it was decided that
immunity for State action may only be claimed if the act was carried out in
the exercise of sovereign functions. Thereafter, there was the case
of Kasturi Lal v. State of U.P (1965), in which the Government was not held
liable for a tort committed by a government official since the tort was said to
have been done in the course of his sovereign function. In addition to
criticizing the judgment made in the case of Vidyawati, the Court observed
that the state is not liable when the tort is committed by its servants while
acting under sovereign function and had made a clear distinction between
sovereign and non-sovereign functions.

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CONCLUSION
To summarize, tortious liability arises from a breach of a legal obligation,
and one type of it is vicarious liability, which allows one person to be held
liable for the torts committed by another if they have a master-servant,
principal-agent, partners of a firm, or employer-independent contractor
relationship. Apart from the conditions that make a person vicariously
liable, there are a few exceptions where the master or principal is not liable
for their employee's actions. The Court uses its discretionary power to
determine the relationship and whether vicarious liability can be applied or
not is decided on the facts of the case. Additionally, how the state could be
held vicariously liable for the servant's act has also been made clear citing
the landmark cases.