Vicarious Liability: Quick Learning

[The article has been written by Kanav Gupta, a Third-year B.A.L.L.B(H) student at Vivekananda Institute of Professional Studies, GGSIPU, Delhi. (kanavgupta1999@gmail.com)]

Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases, however, vicarious liability, that is the liability of one person for the act done by another person, may arise. In order that the liability of A for the act done by B can arise, it is necessary that there should be a certain kind of relationship between A and B, and the wrongful act should be, in a certain way, connected with that relationship.

The common examples of vicarious liability are :

(1) Liability of the principal for the tort of his agent.

(2) Liability of partners of each other's act.

(3) Liability of the master for the act of his servant.

PRINCIPAL AND AGENT

When an agent commits a tort in the course of performance of his duty as an agent, the liability of the principal arises for such a wrongful act. The agent is liable because he has done the wrongful act. The principal is liable vicariously because of the principal-agent relationship between the two. Both can be made liable for the same wrongful act. They are considered to be joint tortfeasors and their liability is joint and several. In such a case, the plaintiff has a choice either to sue the principal, or the agent, or both of them.

Where one person authorises another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorised it. It is based on the general principle "Qui facit per alium facit per se" which means that the act of an agent is the act of the principal. For any act authorised by the principal and done by the agent both of them are liable. Their liability is joint .and several.[1]

PARTNERS

The relationship between partners is that of principal and agent. The rules of the law of agency apply in case of liability of partners also. For the tort committed by any partner in the ordinary course of the business of the firm, all the other partners are liable to the same extent as the guilty partner. The liability of each partner is joint and several.

When the wrongful act is done by one partner in the ordinary course of business of the firm, all the other partners are vicariously liable for the same.

MASTER AND SERVANT

If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the master as well.

The doctrine of liability of the master for an act of his servant is based on the maxim respondent superior, which means 'let the principal be liable' and it puts the master in the same position as if he had done the act himself. It also derives validity from the maxim qai facit per alium facit per se, which means “he who does an act through another is deemed in law to do it himself'.”

Since for the wrong done by the servant, the master can also be made liable vicariously, the plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several as they are considered to be joint tortfeasors.

For the liability of the master to arise, the following two essentials are to be present:

(1) The tort was committed by the 'servant'.

(2) The servant committed the tort in the 'course of his employment'.

Though generally, a servant is under the control of his master regarding the manner of his doing the work, there are various cases in which the master does not or cannot control the way in which the work is to be done. For example, the captain of a ship or a surgeon in a hospital may be servants even though they are not to be directed regarding the way they are to do their work. The trend of modern authorities is to bring into the category of "servants" even those persons who are not subject to any such control, thus, enormously increasing the ambit of the branch of vicarious liability.

A master, like a principal, is liable for every tort which he actually authorizes. 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 his servant in the course of employment. An act is deemed to be done in the course of employment if it is either :

(1) a wrongful act authorized by the master or

(2) a wrongful and unauthorized mode of doing some act authorized by the master.

So, a master can be made liable as much for unauthorized acts as for the acts he has authorized. However, for an unauthorized act, the liability arises if that is within the course of employment, i.e., it is a wrongful mode of doing that what has been authorized.

Generally, it is very difficult to know whether the act was done by the servant is an unauthorized act and thus outside the course of employment or his conduct is merely an unauthorized mode of doing an authorized act and thus falling within the course of employment. No single rule has been possible to determine the same.

Exceptions when an employer is held liable for the acts of a contractor

In the following exceptional cases, an employer can be made liable for the wrongs of the independent contractor :

(i) If an employer authorizes the doing of an illegal act or subsequently ratifies the same, he can be made liable for such an act. The real reason for such liability is that the employer himself is a party to the wrongful act, along with the independent contractor and, therefore, he is liable as a joint tortfeasor.

(ii) An employer is liable for the act of an independent contractor in cases of strict liability.

(iii) The liability of the employer also arises for the danger caused, on or near the highway.

[Frequently Asked Questions (FAQ)]

Q. When can the Master be held liable for acts of the servant?

A. The master can be held liable for every act which is under the ambit of course of his employment.

Q. Can the Master recover the amount so paid due to the mistake of the Servant?

A. Yes, a separate suit for recovery can be filed by the Master for the amount so paid by the Master.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

[1] Law Of Torts by Rattan Lal and Dhiraj Lal