LAW OF TORTS

PROJECT
ON

VICARIOUS LIABILITY
-

TABLE OF CONTENTS

1. Object of study
2. Introduction
3. Vicarious liability
4. Justification of vicarious liability
5. Master and servant relationship
6. Landmark Cases
7. Conclusion

OBJECT OF STUDY
The project is aimed to explore about the principle of vicarious liability and to study the test of duty through
extensive research on relevant case laws, judgments, scholarly opinions etc. so that we could know when a
person can be held liable during the course of employment.

INTRODUCTION
The Law of Torts or civil wrongs in India is administered as rules of justice, equity and good conscience. A tort
may be defined as a civil wrong independent of the contract for which the approximate remedy is an action for
un-liquidated damages. A tort is a violation of a right in determinate person, either personally or as a member of
the community, and available against the world at large. Vicarious Liability is one of the most important
branches of Law of Torts.
Vicarious Liability:
Vicarious Liability is the when law holds one person responsible for the misconduct of another, although he is
himself free from personal blameworthiness or fault. The principle of vicarious liability is expressed by the
maxim respondent superior and qui facit per alium facit per se which means Let the master answer and
He who acts through another does the act himself" respectively.
The term vicarious liability describes the instance in which a court will hold one party responsible for the
misconduct of another, even though the party held liable for the misconduct has not committed any wrong of its
own. The issue of vicarious liability requires the court to allocate liability to one of two innocent parties: the
party that hired the wrongdoer, or the victim of the wrongful act. The concept of vicarious liability arose
initially from the notion that an employer ought to be held responsible for the wrongs committed by its
employees in the course of their employment. It is in the employment context that vicarious liability most
commonly arises, but the categories of relationships in law that may attract vicarious liability are not closed or
exhaustively defined. Even though the employer may be involved in pursuits of a general benefit to society and
is unaware of the wrongful actions of its employee, the employer may nonetheless incur vicarious liability.
When the risks inherent to a partys enterprise materialize and cause harm, and it is useful and fair to do so,
liability will be imposed on that party.

VICARIOUS LIABILITY
The doctrine of vicarious liability generally operates within the law of torts. It has become wellestablished in English law and historically has been called Master and Servant liability, which clearly
indicates the circumstances in which the doctrine becomes applicable in tort law. A vicarious liability can be
defined as the liability created by an action or non-action by a person, working on behalf of him when he is
responsible for all the action or inaction of such person within the limits of their association. So when an
employee or worker causes a loss to somebody in the normal course of his duty then the employer will be
responsible for such a loss. An employer is strictly liable for torts committed by those under his command,
when they are found to be his employees. To this end, the courts must find a sufficient relationship to this effect,
where issues of vicarious liability are raise. It has been stated judicially that no one test can adequately cover all
types and instances of employment; thus generally, the tests used and ultimate determination rest upon the
individual aspect of each case, looking at all the factors as a whole. The doctrine of vicarious liability is
concerned with the legal responsibility of a person for the torts of another. The most important area in which the
principle operates is that of employer and employee where the former is considered liable for the torts of the
latter committed during the course of his employment. There are also one or two other areas in which the
principle is relevant and these will considered below also. We need to consider, if briefly, the justifications for
the imposition of liability in such circumstance as the decision to place responsibility in law on a person, for
example, the employer of the acts of an employee, is clearly an illustration of strict liability which is generally
something, as we have already seen, the judiciary is reluctant to impose. It is has been said that the doctrine is
based on considerations of 'social convenience and rough justice' as opposed to any legal principle. Common
justifications include the idea that that the doctrine represents a response to the development of business
organizations as legal organizations in their own right as distinct from the human beings through whom they
function. Another view is that the employer who takes the benefit of the activity of the employee must also
shoulder the burden when things go wrong, a form of enterprise theory. Further, is suggested that even if there is
no or little benefit to the employer in what the employee has done, the employer has a moral responsibility to
any one harmed by the tort of the employee, having placed her in a position whereby she can exploit the third
party claimant. None of these are completely satisfactory. The final justification is recognition for the point that
often the employee is not worth suing and therefore the employer, having the deepest pocket, is in a better

position to meet any claim. This loss distribution theory is hardly a principle of law, rather it is a description of
what is happening if a court does employ a doctrine of vicarious liability in the employer/employee and other
relationships.

We need to distinguish between direct liability of an employer and vicarious liability. Direct or
primary liability arises where the duty in question is imposed personally on the employer and, although in
practice the employer delegated the task of performing the duty to another, the duty is said in law to be nondelegable. This explains why, in some circumstance, an employer, contrary to the general rule, is held liable for
the work of an independent contractor, In the chapters on nuisance and strict liability, we saw that there were
certain duties involving extra-hazardous activities which fall into this category, Under the Occupier's Liability
Act 1957, as we have also already seen, the occupier may be held liable for the activities of an independent
contractor in certain circumstances in relation to the selection of the constrictor in certain circumstance in
relation to the selection of the contractor and the duty to supervise non-technical work. In these situations the
distinction between employees and independent contractors is not crucial. However, generally, this is of major
importance because of the general rule that an employer is not liable for the torts of his independent contractor,
the first issue to consider, therefore, is who is an employee.

Justification of Vicarious Liability

COMPENSATION/DEEP POCKETS

The compensation explanation of vicarious liability holds that the rationale for the doctrine is to ensure that
innocent plaintiffs have a solvent defendant against whom to enforce their legal rights and that as between
employees and employers this is most likely to be the employer who is wealthier and/or carries insurance.

DETERRENCE

The deterrence explanation of vicarious liability comes in two broad forms: one focused on the employer; the
other focused on the employee. The employer-focused version of the theory argues that since larger economic
units are in the best position to reduce accidents through efficient organization and discipline of staff, the law is
justified in making them vicariously liable in the name of accident reduction.

LOSS-SPREADING

Another leading explanation of vicarious liability is that of loss-spreading, namely that in fixing liability on the
employer, the burden of the injury will be spread out among his customers and insurers.

ENTERPRISE LIABILITY

Another prominent explanation for vicarious liability is that of enterprise liability.Although there are a
multitude of different versions of these theories, they generally come in one of two broad forms. The first, as
typified in the writings of Gregory Keating and Jane, it is based on the notion of reciprocity between benefit and
burden. The second version, as typified by the Supreme Court of Canadas decision in Bazley, is that it is fair to
make the employer pay because the employers enterprise created or exacerbated the risk that the plaintiff
would suffer the injury that she did.

Master and Servant Relationship

Master and servant is a term used to describe the legal relationship between an employer
(master) and employee (servant) for purposes of determining an employer's liability for acts of
an employee. A master and servant relationship is determined based upon the amount of control
the employer exercises over the service provide by the employee. A master will be liable for acts
of an employee committed while within the scope of employment. Such liability attaching to an
employer due to acts of an employee is called vicarious liability.
This is distinguished from a relationship between an employer and independent contractor. An
employer is generally not vicariously liable for acts of an independent contractor, whether or not
they were done within the scope of employment.

Test of master servant relationship

Hire and fire relationship

If the employer has the authority to hire an employee on his need and such a relationship is governed by a contract
of services and such a contract offers the employer the right to dismiss or suspend the employee, then such an
arrangement is called as hire and fire relationship.

Direction and Control

The control test is used to determine whether a person is in a position to direct or require not only
what work is to be done, but also how it is to be done. Generally, in an employeremployee relationship, the payer controls, directly or indirectly, the way the work is to be done and
the work methods used. The payer assigns specific tasks that define the real framework within which
the work is to be done.

Liability of the master

A master is liable only for those acts of his servant;

(a) Which the master has authorized him to do an act; or
(b) Which the servant has done in the course of his employment, service of business.

EXPLANATIONS :

1.

Principle of liability

The liability of the acts of his servant done by him in the course of his employment, is based on the
principle embodied in the maxim' Respondent superior' i.e. ' let the principal be liable; But the maxim
doesn't explain the reason behind the rule. Some have explained the rule by relying upon the maxim 'Qui
facit per alium facit per se', that is, the one who does an act through another is deemed to do it himself. But
this rule apparently seems to imply those acts which the principal has authorised another to do. But what
about those acts, which the principal has not authorised him to do, or for those acts which he has forbidden
him to do, while entrusting the work. The present rule is that a master is liable not only for those acts, which
the principal has authorised him to do, but also for those acts, which are done by him in the course of
employment, and which he had done willfully, or negligently, or even against his master's order.
The decisions of the courts in England have extended the maxim to apply even to the latter cases also,
on the ground of social convenience or expediency so that the master, who entrusts his work to a servant, in
order to avoid such accidents in the interest of the public, may be forced to choose careful and efficient servants.
There is also the reason which has been stated in Bayley vs. M.S.L. Ry. Co (1872) 7 C.P. 415 thus:
A Person who puts another in his place to do a class of acts in his absence, necessarily leaves him to
determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for
the manner in which it is to be 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 circumstance in which it ought not to
have been done, provided that what is done is not done from any caprice of the servant, employment.
Acts done in course of Employment.

1. A master is responsible not only for what he has authorised his servant to do, but also for those acts of
the servant, which are so connected with the authorised act, that they may be regarded as modes,
whether proper or improper, of the execution of the authorised work. Such acts shall be considered, as
done ' within the scope of his authority', or 'within the scope of his agency', or 'within his authority'.
2. The servant has implied authority to do all those things, that are necessary for the protection of his
master's property, or for fulfilling the duty which he has to perform.

3. A master is liable for the willful tort of his servant committed in the course of his employment, although
he has been forbidden to do it, and although the master has derived no benefit out of it, the servant
having done it solely to acquire for himself an illegal benefit out of it.
Thus the master is liable for the act of servant committed in the course of his employment, if the mode of
execution is either:

4.

Negligent or.

Excessive or overzealous; or;

Mistaken; or,

A willful wrong done within the sphere of employment; or.

Results in harm as a natural or probable consequence of authorised act;

A fraud on another, though master derives no benefit from it.

However, the master will not be liable if the servant has done an act which:

he is not employed to do; or.

is a frolic of his own; or;

is on another's business; or

is coincident in time, but unconnected with the work he is entrusted with; or.

is an act which the master himself had no right to do.

Landmark Cases
1. Acts of negligence by the servant- when the servant in performing some duty allotted to him does so in
a manner which results in a breach of that duty and causes damage to the plaintiff.
In Limpus vs. London General Omnibus Co (1862) 1 H&C 526 a bus driver, disobeying an express instruction
from his employer, was engaged in racing his bus on the street and hence caused damages to the plaintiff. The
defendant employer was held vicariously liable in the instant case. The fact that the driver did not abide by the
instructions of his employer did not absolve the latter of his liability as the former carried out his act in the
course of employment.
Willes J:
It is well known that there is virtually no remedy against the driver of an omnibus, and therefore it is necessary
that, for injury resulting from an act done by him in the course of his masters service, the master should be
responsible; for there ought to be a remedy against some person capable of paying damages to those injured by
improper driving.
2.

When the act carried out is not within the course of employment.

In State bank of india vs. shyama Prasad 1978 3 SCC 399 the plaintiffs husband gave some amount to his
friend Kapil Deo Shukla who was an employ of the defendant Bank, who exercised much influence on other
employees of the Bank and used to work at different counters. The Bank viewed his actions with approval and
acted with negligence. The plaintiff as well as other constituents regarded him as an employee and a responsible
person of the Bank and quite often used to handover the money and letter of instructions to him. But the
plaintiff found that his funds were misappropriated. The Supreme Court decided that the clerk acted as a friend
and not as an employee; hence he was not an agent so the bank cannot be held liable vicariously.
3.

When an employee is under two employers.

In Mersey docks and Harbour board vs. Coggins & Griffiths (Liverpoor) Ltd. (1946) 2 All ER 345 firm of
stevedores had hired from Mersey docks and harbour board the use of a crane together with its driver to assist in
loading a ship lying in the Liverpool docks. The contrast was subject to the boards regulations, regulation 6 of
which contained the clause: The drivers so provided shall be the servants of the applicants. The driver
question was a skilled workman engaged and paid by the board, and the board alone had power to dismiss him.
The stevedores directed what operations should be executed by him, but they had no authority to direct how he

should work the crane. Owing to the negligence of the driver, a checker employed by the forwarding agents who
had engaged the stevedores was injured in the course of employment. The question to be determined was
whether, in applying the maxim respondent superior, the general employers of the crane drivers or the hirers
were liable for his negligence. It was contended by the board that, under the terms of contract between the board
and the stevedores, the stevedores were liable.
The court held that in the instant case the permanent employer i.e. mercy docks and harbour board would be
held liable as the present employer had no control over the operations of the crane driver and his crane.
4.Servant's act separate from course of employment but coincident in time with it.
Jefferson V. Derby- Shire Farmers Ltd. (1921) 2. K.B. 281
The defendants had hired the plaintiff's garrage for storing their motor cars. The defendant's servant
while drawing motor cars. The defendant's servant while drawing motor spirit from a drum into a tin lighted a
cigarette and threw the lighted match stick on the floor. the result was that the motor spirit, which was flowing
on the floor, caught fire and the garage was burnt down.
The learned judges, distinguished this case from William V. Jones, in as much as they
thought that in that case the negligent act of smoking was unconnected with the work of
signboard- making and that work required no special precaution a about fire. but in the present

case the work of pouring out motor spirit required special precautions and to light cigarette
during those operations and to throw the lighted match stick on the ground on which motor
spirit was flowing was the most negligent way of doing the work entrusted to the servant by the
master. Hence there was negligence in that very work and therefore the master was liable

Recent case
Anita Bhandari And Ors. vs Union Of India (Uoi) And Ors. AIR 2004 Guj 67
The deceased had gone to Dena Bank, Surat for a Banking transaction but he was shot dead by Mr. Nagjibhai
Kanjibhai Parmar, an employee of Dena Bank working as a security guard, which was a rash and reckless act in
course of his employment. The deceased died on the spot on account of the fire-arm wound on the chest of the
deceased.
The court held that it was clear that even when the employee did the act under circumstances in which it ought
not to have been done is also a wrong for which the master is responsible. The Bank has to be held answerable
for the wrong of the security guard in doing the unlawful act under circumstances in which it ought not to have
been done. The submission made by the learned Counsel for the Bank that the act was done from caprice of the
security guard cannot be accepted as the security guard is not shown to have any enmity with the deceased. The
court held that the aforesaid contention does not dissuade the Court from passing orders against the Bank in so
far as the principle of vicarious liability is concerned.

Conclusion
We have seen the meaning of vicarious liability and its application under tort law under many circumstances as
mentioned above. Vicarious liability is a legal concept which refers to one party being held liable for the injury
or damage sustained by another party, in spite of the fact that they had no active involvement in the incident.
The intent behind vicarious liability is to hold the proper party accountable when harm is committed. The victim
needs compensation and the law provides so by applying the principle of qui facit per alium facit per se which
means he who acts through another shall deemed to have acted on his own, the courts hold the employer or
principal or partner responsible as per the situation. We have looked at a variety of situations in which a party,
may be charged with vicarious liability.

BIBLOGRAPHY
1.
2.
3.
4.
5.
6.
7.
8.
9.

Manupatra.com
Negligence by CARSWELL PUBLISHERS.
A Case Book on Tort Sweet & Maxwell Publishers.
Source Book on Torts Graham Stephens.
Tort Winfield & Jolowicz.
The Law of Torts & Consumer Protection Act M.N. Shukla.
Law of Torts Ratanlal & Dhirajlal.
Law of Torts R.K. Bangia.
Jstor.com
10. Westlaw.com