Vicarious Liability

Table of Contents

Under the topic of vicarious liability, for the wrong done by some other person one person will be held liable. This doctrine is also called as joint liability, also this liability occurs in both criminal and civil laws and it arises when there is a lawful relationship between two parties or the parties are connected in one way or another.

CIVIL OR TORT LAW

There are some essentials needed for applying vicarious liability under this law:-

Relation – there must be some relationship of master-servant, principle-agent, employer-employee. Relation include two categories:-

Contract of service – under this, one person is in contract with other and the service is particular. In this there are not many difficulties in controlling power on the other.
Contract for service – it is a particular contract and there are difficulties in controlling power over the acts of other.

Ratification – in tort law a person can be held liable for wrongful act done by other party in following ways:-

If person assist other person’s wrongful act or omission.
If the person authorizes act of other knowing that it was tortious in nature.
If the person takes responsibility for wrongful act or omission committed by other person.

The notion of ‘in course of employment’ is also discussed in doctrine of vicarious liability. An act is considered in course of employment if the authority of wrongful act is given to servant by master; or a lawful act is done in a illegal manner by servant. The judicial pronouncement of Short v J&W Ltd[1] is the first case which gave the conditions that were needed to be satisfied to make the master vicariously liable for the acts of the servant. The Court held that the master should have the power to select his servant.

Further the master controlled the way his servant worked, and the master also had the right to dismiss or suspend the services of the servant. While in the case of Dharangandhara Chemical Works v State of Saurashtra[2], it was held that sometimes these conditions needed to be diluted because it was not always possible to fulfill all the conditions simultaneously. But the control of the master wouldn’t be diluted, and he’ll be liable for the acts of the servant.

REASONS FOR LIABILITY OF MASTER

Respondent superior – this states that let the master or principal be responsible.
Damages – to pay damages to aggrieved party and stop the master and servant from blaming each other.
Avoid exploitation of servant – for an act done by servant, master can be held liable because many times masters exploit servants in doing tortious act and later on neglecting them.
Qui facet alium facet per se – an act done servant in his course of employment is considered to be committed by master and the principle means that act has been done by master.

CRIMINAL LAW

Under this law a person can be held liable for others act if he/she is party to offense. For e.g. the driver of the get-away car is guilty in robbing the bank even though the driver never left the car. The principle that is followed in criminal law is that for an actus reus committed by some other person, a person can be held liable as principal offender. Person committing an act on instructions of other person will also be held liable and not to be considered as innocent.

The law determines the relationship between two parties and ascribes the act of one to other. The doctrine of vicarious liability is a civil concept and in the case of criminal law it is an exception and not a rule.

INDIAN VIEW

Although the concept of vicarious liability is normally used in civil law but in some exceptional cases it can be applied to criminal cases also.

Section 149 of IPC – in this if any member of unlawful assembly commits any wrongful act in advancement of common objective then every member of assembly will be held liable.
Section 154 of IPC – it is related to owners and occupiers of land.
Section 155 of IPC – makes a person vicariously liable on the occupier or owner of land for omission of their manager or agent if any activity takes place on land and the manager or agent does not prevent unlawful activities happening on their property.
Section 156 of IPC – it imposes personal liability on manager or agent if some unlawful activity takes place on a particular property.
Section 268 and section 269 of IPC – it imposes liability on master if any public nuisance is being created by servant.
Section 499 of IPC – in this if a servant defames somebody then the master is held personally liable.

LIABILITY OF CORPORATIONS IN CRIIMINAL WRONGS

Earlier it was considered that corporation can’t commit criminal wrong but now it is a separate legal entity and an artificial person, but it works through agent and not on their own. So whenever any unlawful act is done by a company, its agents are held punishable and liability is vicarious. A company cannot commit crimes like perjury, rape, murder etc.

LIABILITY OF STATE FOR ACT OF EMPLOYEES

In England, for the act committed by the servant the state cannot be held liable, the concept behind this is based on rex non-potestpeccare which states that king can do no wrong.

India was also having the same position till 1967 wherein state can’t be sued for servant’s action, but in judicial declaration of Superintendent and Remembrance of Legal Affairs, West Bengal v Corp.of Calcutta[3] it was held by the Court that the principle that the State isn’t bound by any statute is not the law of the land after the Constitution has come into force. Today criminal and civil statutes are applied to state and citizens alike.

LICENSEE AND HIS LIABILITIES

It can be clearly understood that the licensee will be responsible for the acts of his employee but only during the course of his employment and this would be this case even if the employee has worked against the instructions of the licensee. This was even clarified further in the case of Emperor v. Magadevappa Hanmantappa[4].

Submitted by-

Akanksha Yadav

Intern at Law Portal

Mail: akankshayadav2808@gmail.com

College: Vivekananda Institute of Professional Studies, GGSIPU

[1] [1946] 62 TLR 427

[2] 1957 AIR 264, 1957 SCR 152

[3] 1967 AIR 997, 1967 SCR (2) 170

[4] (1927) 29 BOMLR 153

Author: Akanksha Yadav,
Vivekananda Institute of Professional Studies, GGSIPU, Law Student

Vicarious Liability