The concept of vicarious liability


In this present, fast-moving world it is very difficult to imagine a person doing all the things alone without the help of others. Most of the things which we do in our daily lives are done with the help of employees or agents. In such a situation it is possible that the employee/agent may not do the work with such care and attention and that may lead to injury to the third party and in that situation, the one who employs will be held responsible for the wrongs committed by the employee.

Generally, the person is held liable for his wrongful act, but there are certain exceptional cases wherein, the law imposes vicarious liability on one person for the acts of another.

Meaning of vicarious liability : 

The term ‘vicarious’ has been derived from the Latin word ‘vice’ which means “ in the place of ” and therefore it is generally termed as liability for the acts of others.

According to Black’s law, dictionary vicarious liability is defined as ‘the imposition of liability on one person for the actionable conduct of another, based solely on the relationship between the two persons’.

Principles involved in vicarious liability :

  1. Qui facit per alim facit per se: The maxim means that ‘he who does an act through another does it himself’. In such a case the person authorizing is liable, not only for the tort actual authorized but also for its direct consequences.
  2. Respondent superior: This maxim means ‘let the superior or principle be liable’. It means that the master is responsible for all the acts of his servant/agent as it is committed in the course of his service.

Reasons for vicarious liability :

There are certain reasons as to why the master will be held liable for the acts of the servant, they are as follows :

  1. Master always gets the benefits from the work of the servant, if he enjoys the benefits arising out of the work of the servant then he must also bear the loss which has occurred from the acts of the servant during the course of employment.
  2. A servant always works on the instructions given by the master and in the manner as the master wants the work to be done and therefore the master must be held responsible for the acts of the servant.

In Bartanshill coal co. v. Mcguire, lord Chelmsford observed that “It has long been established by law that a master is liable to third persons for any injury or damage done through the negligence or unskillfulness of a servant in the course of his duty is regarded as done by his master’s order, and, consequently it is the same as if it were master’s own act

A. Principal-agent relationship :

A principal is a person who authorizes another to act on his behalf while the person who does the act so authorized is called the agent. A principal is vicariously liable for the wrongful acts of his agent committed within the course of his authority. As it is based on the principle ‘Qui facit per Alium facit per se’.

In McLaughlin v. Pryor (1842) 4 M. G. 48, it was held that when one person authorizes another to do an act, the liability for that will be not only of that person who has committed it but also of that person who authorized it…

Generally, the principal does not ask their agent to do the wrongful act, but when an agent acts in performance of his duties as an agent, then the principal will be liable for the acts of the agent.

In Lloyd v. Grace Smith and co. , the house of lords held that when an agent is acting in the course of his business, the principal will be held liable, even though the agent was acting for his benefit, rather than that of the master.

B. Partners relationship :

Partners are vicariously liable for torts committed by their co-partners acting in the ordinary course of the firm’s business. The liability of each partner is joint and several, for the torts 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 that of a guilty partner.

In Hamlyn v. John Houston and co. , one of the partners committed a tort of inducing breach of contract by bribing the Clerck of a rival businessman to know the secrets of the rival businessman. Although the other partner was not aware of this wrong he was held liable.

C. Master – servant relationship :

In law, ‘it is well established that he who employees another to do something does it himself or he who does an act through another is deemed in law to do it himself. The relationship between master and servant exists where the master can not only direct the servant on what work he has to do but also controls the manner of doing the work

For the liability of the master to arise, the following conditions must be present

  1. The wrong must be committed by the servant
  2. And that wrong has to be committed during the course of his employment

Who is a servant :

A servant is a person who has been employed by another to do the work under the directions and control of his master. And if a master controls a man by ordering him ‘what is to be done and ‘how the work has to be done, then the man is a servant, otherwise, he is not

 The course of employment :

The master is not liable for all the wrongs which are committed by the servant. He is liable only to such acts which have been done in the course of his employment.

In Pushpabai, Parshotam Udeshi and another v. M/s Ranjit ginning and pressing co. ltd and others, it was held that when a wrongful act is being committed by the driver in the course of employment then the liability would be that of the master.

In-state bank of India v. Shyama Devi, it was held that if a customer of the bank gives some amount or 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 employment.

Independent contractor : 

An independent contractor is an individual who works for another individual and is a person who is not under anyone’s control and is independently responsible for his actions.

The distinction between a servant and independent contractor :

Both the servant and the independent contractor are employed to some work of the employee but there is a difference in the legal relationship which the employer has with them.

A servant is engaged under a contract of service whereas an independent contractor is engaged under a contract for services. And in the case of the servant, the employer controls the manner of doing the work whereas in the case of an independent contractor the employer can only direct what work has to be done but he cannot control the manner of doing work.

The general rule is that the employer is liable for the wrongful acts of his servant but an employer is not liable for the wrongful acts committed by an independent contractor employed by him.

Exceptions :

There are certain exceptions wherein the employer may be held liable for the wrongful acts of the independent contractor.

  1. If an employer authorizes to do an illegal act, then the employer can be made liable.
  2. If the work which has been assigned to the independent contractor is non-delegable
  3. If the work of an independent contractor is ultrahazardous or inherently dangerous.

Conclusion :

Vicarious liability is a legal concept that refers to the situation where one person is held liable for the acts of another in which he had no part. It is an exception to the general rule that a person is liable for his acts. It is based on the principles of ‘Qui facit per Alium facit per se’ and ‘respondent superior’  and therefore in case of vicarious liability both the persons, the person who gave the order as well as the person who does the act both are liable.

References :

  1. Robert Flannigan ‘Enterprise control: the servant and the independent contractor distinction’37 The University of Toronto law journal (1987), available here 
  2. O Kahn Freund ‘servants and independent contractors’ 14 The Modern law review (October 1951), available here
  3. Edward A Mearns ‘ vicarious liability for agency contracts’ 48 Virginia law review (January 1962), available here 

Author: Naveen Talawar,
kslu's law school / student

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