VICARIOUS LIABILITY
It is the expression that signifies a liability
incurred by A to C for B’s conduct or acts.
According to the Jowitt Dictionary of English
Law, when the law holds one person
responsible for the misconduct of another
although he is himself free from personal
blameworthiness or fault.
Tuberville v. Stamp
The defendant’s employee negligently began
a fire that spread and damaged a neighbor’s
house. The master argued that he was not
responsible because he was not personally at
fault. Moreover, he had directed the
employee on the proper method of lighting
fires, orders which were not followed.
The court held that the master would be
liable for his servant’s tort if he had given his
implied command.
Two Latin maxims closely related to the
principle of vicarious liability are;
i) Respondent superior (master will be
liable for the actions of his servants)
ii) Qui facit per alium facit perse (one
who employs another person to do
something does it himself)
Justifications for vicarious liability
1. An employee is acting under the
direction of his master. He does not have
the capacity to act according to his own
interest.
2. Master is deriving more benefits than
the employee.
3. Master is in a better position to
compensate.
4. Employer will be cautious if there is
vicarious liability.
There are two occasions when a person is
held responsible for wrongs committed by
others:
1. By Ratification: Ratification is the act of
adopting a transaction by a person who was
not bound by it initially because it was
entered into an unauthorized agent. It is an
act of confirmation.
2. By Relationship:
i) Master–servant relationship
The vicarious liability of the master for the
tort committed by his servant is based on the
maxim Respondent Superior.
Two main tests to find out the master-servant
relationship are;
a) right to control test
b) organization test
Organization test look at the relationship
between the organization and employees.
e.g., hospitals and doctors. In the case of
Achut Rao v. State of MH the court held that
the hospital is also liable for the negligent
conduct of a doctor.
ii) Course of employment
The tort committed by the employee must be
within the course of his employment.
Barwick v. English Joint Stock Bank
Shyama Devi v. SBI
The plaintiff’s husband gave some amount
and cheques to his friend, who was an
employee in the defendant’s bank, for being
deposited in the plaintiff’s account. No proper
receipt for the deposits was obtained. The
bank employee misappropriated the amount.
The Supreme Court held that the employee
when he committed the fraud, was not acting
in the scope of the bank’s employment but in
his private capacity as the depositor’s friend.
Therefore, the defendant bank could not be
made liable for the same.
In Lloyd v. Grace Smith & Co., the managing
clerk of a firm of solicitors, while acting in the
ordinary course of business, committed fraud
against a lady client and got transferred her
immovable property for his own benefit.
The court held that when a servant is acting in
the course of the business, the master will be
liable even though the servant was acting for
his own benefit rather than the benefit of the
master.
The doctrine of Common Employment
Priestly v. Flower
the plaintiff, who was the defendant’s
servant, was injured in his thigh due to the
breaking down of an overloaded carriage in
charge of another servant of the defendant.
Since both the wrongdoer and the injured
person were the servants of the same master,
the doctrine of common employment was
applicable, and the master was held not
liable.
The doctrine was abolished by the Law
Reform (Personal Injuries) Act of 1948 in
England. This doctrine of common
employment is still applicable in India,
although its scope has been made limited by
the Employers Liability Act, 1939; The
Workmen’s Compensation Act, 1923; The
Employees State Insurance Act, 1948 and the
Personal Injuries (Compensation Insurance)
Act, 1963. These Acts impose liability on the
employers to compensate their employees in
certain cases.
VICARIOUS LIABILITY OF STATE
At common law, the king could not be sued
earlier, either for the wrong actually
authorized by it or committed by its servants
in their course of employment. With the
increase in the functions of the state, the
Crown became one of the largest employers
of the labor in the country. Under these
circumstances, the rule of immunity for the
Crown became highly incompatible with the
demands of justice. Thus, the position was
changed by the Crown Proceedings Act, 1947.
Now the Crown is also vicariously liable.
In India, Article 294 of the Indian Constitution
speaks about the liability of the State and
Central Government.
If a state commits a tort while performing a
sovereign function (the act only the state can
do), it is an immunity.
If it is a non-sovereign function (the act
anybody can do), the state has liability.
P&O Steam Navigation Co. v. Secretary of
State
A servant of the plaintiff company was talking
about a horse-driven carriage belonging to
the company. While the carriage was passing
near the government dockyard, certain
workmen employed by the government
negligently dropped an iron piece on the
road. One of the horses was injured thereby.
Rejecting defence of state immunity, the
court held that action against the state was
maintainable and awarded damages.
State of Rajasthan v. Vidyawati
In this case the Rajasthan government was
maintained a jeep for the use of the collector
of Udaipur. While it was being driven back
from a private workshop by a government
driver a pedestrian was knocked down and
fatally injured. The court awarded damages to
the victim. In this case, the court rejected the
claim of sovereign immunity.
Kasturi lal v. State of UP
A person was taken into custody on suspicion
of being in possession of the stolen property
and taken to a police station. His property,
including a certain quantity of gold and silver,
was taken out of him till the disposal of the
case. The gold and silver were
misappropriated by a police constable who
flew to Pakistan. The plaintiff sued the state
of UP for returning the gold and silver and
claimed damages for loss caused by the
negligence of the police.
The court held that the state was not liable as
the act of negligence was committed by the
police officer in exercising sovereign powers.
Arresting and confiscation of property are
sovereign functions.
State of MP v. Chirojilal
The police made a lathi charge on a student’s
procession, and a loudspeaker belonging to
the plaintiff and being used in the procession
got damaged. When the owner brought an
action for damages, it was held by the court
that maintaining law and order, including
quelling of riot, is a sovereign function. The
state was held not liable.
