Vicarious liability under law of torts

Vicarious liability under law of torts

Meaning of Vicarious Liability 

  • Vicarious Liability means to assigns the liability to an individual who did not actually cause harm, but just because he has the superior legal relationship with the person who did actually cause the harm.
  • For example – A done some act, but its liability will arise over B, this could only be possible if there is some kind of relationship between A and B.
  • The Relationship can be of three type –
    • Principal – Agent Relationship
    • Master – Servant Relationship
    • Partners in partnership firm
  • When an agent commit a tort during the course of employment, the liability will arise over principal. In fact, both can be held liable for the act done as agent is the one who committed the act, so he would be liable and principal will be vicariously liable because of principal-agent relationship between them.
  • Similarly, when one partner did a wrongful act during the course of partnership, then all the partner would be vicariously liable as they all were acting as partner in a partnership firm, having a mutual agency during the course of business firm. The same rule is applied in Master-servant relationship. The master will be held vicariously liable for all the act done by the servant during the course of employment.

Principal – Agent Relationship

  • When an agent has committed a wrongful act during the course of employment, then the principal will be held vicariously liable for the wrongful act done by an agent.
  • The Principal will be vicariously liable because of principal-agent relationship between them and agent will be liable because he was the one who committed the wrongful act. Plaintiff has the choice to sue either principal or agent or both of them.
  • This relationship is based on legal maxim “Quit facit per alum facit per se which means the act of the agent is the act of the principal.

Case studies –

1. Lloyd v. Grace smith & co. – In this case, Mrs Lloyd owned two cottages being dissatisfied with the income consulted a defendant’s firm, where she was attended by their managing clerk. He advised her to sell the cottages and to invest the money in the better way. She was asked to sign the two deeds that were supposed to be the sale deeds but she was made to sign gift deed in the name of managing clerk himself. This act was done solely by the manager during the course of employment and therefore the defendant (Grace smith & co) were held vicariously liable.

2. Trilok Singh v. kailash bharti In this case, the owner of the motorcycle was out of country and in the absence of the owner, his younger brother took the motorcycle without the owner’s permission and knowledge and caused accident. It was held that the owner was not vicariously liable as younger brother is not deemed to be the agent of the owner.

Partners of a partnership firm

If any act is committed by any partner in the ordinary course of business of the firm then all the other partners will be vicariously liable to same extent as a guilty partner would be. The Relationship between the partners of a firm is same as that of principal-agent relationship. The liability of each partner is joint and several.

Case studies –

Hamln v. Houston & co. – In this case, Houston, a partner in the firm, obtained some business information about the plaintiff Hamlyn’s business by bribing one of plaintiff’s employees. It was held that the firm was liable for the loss suffered by Hamlyn although the act was conducted by only one still both the partners of the firm were held liable.

Master & servant Relationship 

  • If a servant does a wrongful act during the course of his employment, then the master is liable for the same. The wrongful act of the servant is deemed to be the act of the master as well.
  • This relationship is based on two legal maxims –
    • Respondent superior” which means let the principal be liable.
    • Qui facit per alium facit per se” which means he who does an act through another is deemed in law to do it himself.
  • Here also, the plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several as they are considered to be joint tortfeasors.
  • For the liability of the master to arise, the following two essentials are to be present :
    • 1. The tort was committed by the ‘servant’.
    • 2. The servant committed the tort in the ‘course of his employment’.
  • A servant is a person who gets employed by another to do work under the directions and control of his master. Note – A master is liable for the act of his servant but he is not liable for the tort of an independent contractor.
  • For example – I employee a driver as my servant. If he negligently knocks down X, I will be liable for that. But if I hire a taxi and the taxi driver negligently hits X, then I am not liable towards X because the driver is not my servant but only an independent contractor.
    A master is liable for all such torts which are committed by his servant in the course of employment.

Case studies –

State Bank of India v. Shyama Devi In this case, the respondent, Mrs. Shyama Devi, opened a Savings Bank account with plaintiff’s predecessor at its Allahabad Branch. The respondents gave some cash and a cheque to one of the bank employee, who was also a friend of the respondent’s husband, for being deposited in her account. The said payments were made to his employees in his capacity as the respondent’s husband’s friend. No receipt or voucher was obtained.

The Bank’s servant, instead of making the deposits in the respondent’s account, got the cheque. cashed and misappropriated the amount. He, however, made false entries in the respondent’s Pass Book. It was held by the Supreme Court that the servant had acted outside the course of employment and the appellant bank could not be made liable for the fraud committed by such servant.

Author: Navya Agarwal,
College - Chanderprabhu Jain college of higher studies and school of law and Year is - 2nd / Profession - Student

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