Vicarious Liability
Generally speaking a person is liable for his own acts, but in many cases he may be held responsible for the torts committed by others. This is known as the ‘vicarious liability’ i.e. liability incurred for, or instead of, another. The common examples of such a liability are: Liability of the principal for the tort of his agent, Liability of partners for each other’s tort, and, Liability of the master for the tort of his servant, Vicarious liability is a kind of ‘strict liability’, however, in vicarious liability the liability arises because of the relationship between the principal and the wrongdoer, while in the case of strict liability the liability arises out of the wrong itself.
(1) Principal and Agent
When the principal expressly or impliedly authorizes some act to be done he is liable for such an act of the agent if the same has been in the course of performance of duties as an agent. Where the owner of a car asked his friend to drive the car and he causes an accident, the owner will be liable (Ormrod v Crosville Motor Services Ltd)
(2) Partners
If any one of the partners commits any tort in the ordinary course of business of the firm all the other partners of the firm are liable for that to the same extent as the guilty partner. The liability of each partner is joint and several.
(3) Master and Servant
A master is liable for the torts committed by his servant while acting in the course of his employment. The servant is also liable. They are considered to be joint tort feasors and their liability is joint and several. The doctrine of liability of the master for the act of his servant is based on the maxim respondeat 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 qui facit per alium facit per se, which means ‘he who does an act through another is deemed in law to do it himself. The reason for the maxim seems to be the better position of the master to meet the claim because of his larger pocket and also ability to pass on the burden of liability through insurance. “Public policy, social convenience and rough justice” is the underlying idea.
Who is a servant?: A servant is a person employed by another to do work under the directions and control of his employer. A servant should be distinguished from an independent contractor. A master is liable for the tort committed by his servant only. An independent contractor is one who undertakes to do certain work and regarding the manner in which the work is to be done he is his own master and exercises his own discretion. My car driver, for example, is my servant and for his negligent driving I will be liable. On the other hand, if I hire a taxi for going from one place to another the taxi driver is an independent contractor and if he drives negligently will not be liable for his wrongful act. In some exceptional cases, an employer can be made liable for the wrongs of the independent contractor (viz. strict liability).
Also, if an employer authorizes the doing of an illegal act or a tort (e.g. a passenger of a taxi orders the taxi-driver to drive fast), or subsequently ratifies the same, he can be made liable for such an act. Further, an employer may be liable for the negligence of independent contractor if the employer carelessly appoints as independent contractor where the risk of harm, unless precautions are taken, is foreseeable.
The recent trend is to include even those persons into the category of “servants” who are not subject to control viz hospital staff (even part-time employees) and borrowed servants. When a master lends the services of his servant to another person and the servant then commits a tort the question, which arises, is whether the permanent master would be liable for the servant’s act or the person who is making temporary use of the servant’s services. That one of the two, who has the power to control the manner in which the act of the servant is to be done, will be liable.
In Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd. (1947) A.C. 1, a harbour board, let out a mobile crane along with a skilled driver to certain stevedores for loading a ship. Due to the negligence of the driver, while loading a ship, X was injured. The harbour board that was permanent employer was held liable.
In Smt. Kundan Kaur v S. Shankar Singh (AIR 1966 Punj. 394) the partners of a firm temporarily gave their truck along with a driver on hire to a transport company for transporting certain goods. Due to rash and negligent driving of the driver the vehicle met with an accident and an employee of the transport company was killed. The court observed that there was only a transfer of services and not of control of the driver from the general employer to the hirer of vehicle and as such the partners of firm were liable. In case of hiring, a presumption has been generally raised that there is only transfer of services rather than that of the servant.
The course of employment — “A wrong falls within the course of employment of the servant if it is necessarily incidental to something which servant is employed to do.” Further, an act falls within the course of employment when either the master has authorized the same or it is a wrongful mode of doing some authorized act e.g., if I authorize a servant to drive and he drives negligently, or I authorize a servant to deal with the clients and he deals with them fraudulently. However, if I send my servant to make some purchases for me from the market and he utters some defamatory words there, the defamation by my servant is outside the course of employment and I cannot be made liable for the same.
Some more illustrations in this regard are as follows:-
(i) When the managing clerk of a firm of solicitors, while attending a client on behalf of the firm, fraudulently got the property of the client transferred in his own name the act was held to be done in the course of his employment and the firm was held liable (Llyod v Grace, Smith & Co.). However, if a customer of the bank, gives some amount/ cheque to the bank employee (in his capacity as a friend) for being deposited in the account, without obtaining any receipt for the same, the bank employee is not deemed to be acting within the scope of his employment and if he misappropriates the amount the bank will not be liable (State Bank of India v Shyama Devi AIR 1978 SC 1263).
(ii) In Century Insurance Co. Ltd v Northern Ireland R.T.B. (1942) A.C.509, A’s servant, the driver of a petrol lorry, while transferring petrol from the lorry to an underground tank struck a match to light and threw it on the floor. This resulted in the fire and an explosion causing damage to B’s property. The act of the driver was held to be in the course of employment and A was held liable for the same.
(iii) In Beard v London General Omnibus Co. (1900) 2 Q.B. 530, at the of the journey the driver of a bus went to take his dinner. During his temporary absence the conductor drove the bus in order to turn it round to make it ready for the next journey and negligently caused an accident. Since driving was not the kind of act that the conductor was authorized to do the conductor was acting out of the course of employment for which the master was held not liable.
(iv) If the servant himself negligently delegates his authority and instead of himself carefully performing the duty allows the same to be negligently performed by somebody else the master will be liable for such negligence of the servant. Thus, in the above case, if the driver had allowed the conductor to drive the bus, the master would have been liable.
(v) The employer may be liable even if he forbids his servant from doing certain act. In Limpus v London General Omnibus Co. (1862) H & C. 526, the defendant’s driver, in defiance of the express instructions not to race with other omnibuses, tried to obstruct a rival omnibus and thereby caused an accident. The driver had been engaged for driving and the act done on his part was negligent driving. Inspite of the prohibition the action was still in the course of the employment for which the master was held liable.
However, doing an act which is altogether different from the purpose for which the servant has been engaged is outside the course of employment and if the same is also prohibited (the driver was instructed not to give lift to unauthorized persons), the master will not be liable. However, it has been held that the mere fact that the person taking the lift is a stranger should not necessarily means that the driver’s act is outside the course of employment. The point is if the servant’s act is totally unconcerned with the master’s business (e.g. when he takes his own family in the master’s vehicle for a picnic) the act should be considered to be outside the course of employment.