Vicarious Liability In Torts

    The general rule in the law of torts is that a person is held liable for the wrongful act committed by him and he alone is liable to pay compensation for such act. However, the concept of vicarious liability has been otherwise in which a person can be held liable for the commission of wrongful conduct by others. The term ‘vicarious’ has its origin from the word ‘vice’ which means “in place of”, and thus, when the subordinate has done anything wrong, then his superior will also be held liable for the same wrongful act.

    PRINCIPLES OF VICARIOUS LIABLITY

    RESPONDEAT SUPERIOR

    The term ‘respondeat superior’ means ‘let the superior be liable’. This holds the superior to be answerable for the negligent act or omission of the act which his subordinate has conducted during the course of his employment.

    QUI FACIT PER ALIUM FACIT PER SE

    The maxim can be translated to – “he who does an act through others, does himself.” This implies that when superior delegates the work to his subordinate, authority is also delegated but, the responsibility is held with superior himself.

    ELEMENTS OF VICARIOUS LIABILITY

    • There should be an existence of a superior-subordinate relationship.
    • The subordinate must have conducted the act with negligence or should have omitted the act completely or the act must be wrongful in nature.
    • The wrongful act must have been done during the course of employment.

    REASONS FOR VICARIOUS LIABILITY

    • A superior hires his subordinate so that the subordinate can work on behalf of himself and get the things accomplished, this makes the job easier for the superior. Therefore, it is essential to establish liability upon the superior for his negligent conduct, so that superior is not only responsible for the work done efficiently but also for the work otherwise done negligently.

    • There comes a time when the subordinate does not have financial support to compensate the damages he had done through his wrongful conduct; thus, the deep pockets of superior can be able to recover the damages already done to some extent.
    • Once the vicarious liability is imposed upon the superior, he becomes more concerned about the precautions required for the conduct of the work and gives due attention required in the work.

     Morris v. CW. Martin & Sons Ltd.[1]

    There was one dry cleaning service run by the defendant where one of his servants, in course of his employment, had stolen a coat. Thus the defendant was held liable for theft committed by his servant.

    Century Insurance Co. v. Northern Ireland Road Transport Board,[2]

    In this case, the owner was held liable for the wrongful act of his servant when the servant negligently threw a cigarette on the floor near the petrol tank which ignited the fire. Further, this inflicted a great deal of damage to the petrol tank.

    TYPES OF RELATIONSHIPS UNDER VICARIOUS LIABILITY

    MASTER-SERVANT RELATIONSHIP

    This is the relationship in which a person works under the control and supervision of a master. The master has the right to control and authorize the work of a servant. Hence the concept of vicarious liability is applied in this case. It means, if a servant does anything wrongful while doing master’s work then in such event master is liable.

    PRINCIPAL-AGENT RELATIONSHIP

     In this relationship a principal authorizes his agent to act upon his behalf or represent him while assigning the work to him. This very relationship holds the essence of Qui facit per alium facit per se. Therefore, giving rise to vicarious liability.

    INDEPENDENT CONTRACTOR

    This is a relationship in which the master has authorized his work to the independent contractor. However, he cannot control the independent contractor at time of employment. Therefore, the concept of vicarious liability is not applicable in such a case.

    DIFFERENCE BETWEEN SERVANT AND INDEPENDENT CONTRACTOR

    • The servant is under the control and supervision of the employer. This is not in the case of an independent contractor.
    • In the case of the master-servant relationship, there is a contract of service whereas, in the case of an independent contractor, there is a contract for service.
    • Master will be held liable for the wrongful act of his servant done in the course of employment. On the other hand, the employer will not be liable for the wrongful act of the independent contractor.

    For example, if a driver in his course of employment, hits a pedestrian on the road, then the owner of the vehicle will also be held liable. But in a case when the person is hiring a cab and the driver of that cab hits a pedestrian, then the person will not be held liable as he had hired him for taking him to his desired destination only.

    LIABILITY IN MEDICAL CARE

    Liability can also arise for the medical institution on behalf of doctors, nurses and other medical staff of that medical institution. This can be witnessed from the various cases decided in courts.

    Joseph Alias Pappachan v. Dr. George Moonjerly[3]

    In this case, the court stated that ‘‘persons who run hospitals are, in law, under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. They must do it by the staff which they employ; and if their staff is negligent in giving treatment, they are just as liable for that negligence as anyone else who employs others to do his duties for him.”

    Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises Ltd.[4]

    The court held that it was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are between them but owing to the same, it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. It is expected from the hospital, to provide such a medical service and in a case where there is a deficiency of service or in cases where the operation has been done negligently without bestowing reasonable care and caution. The hospital must be held liable and it cannot be allowed to escape from the liability by stating that there is no master-servant relationship between the hospital and the surgeon who performed the operation. The hospital is liable in the case of established negligence and it is no more a defence to say that the surgeon is not a servant employed by the hospital.

    https://legalreadings.com/mass-media/

    LIABILITY OF STATE

    There is no specific law or enactment which makes the state liable for the tortious act committed by employees of the state. However, under the Constitution of India, the remedy is given under Article 300(1) where it imposes liability for the state action.

    The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. [5]

    This article explains the concept of vicarious liability with a condition that the state will be held liable only when it’s performing in scope of non-sovereign functions. If the state is discharging its sovereign function and in the meantime has done a negligent or wrongful act, then the state cannot be held liable. This distinction between the sovereign and non-sovereign was cleared through the case of Peninsular and Oriental Steam Navigation Company v.  Secretary of State for India [6].

    The State of Rajasthan v. Vidyawati[7]

    In this case, the defendant was appointed as a driver for the government’s vehicle (jeep). The car was sent for some repairs and while taking back the jeep from the repair shop, the defendant had knocked down a man named Jagdish Lal who later died due to the accident. The plaintiff that was his widow sued the state for damages.

    It was held that since the State was not discharging its sovereign function and therefore it was liable for such damages.

    Further, in Kasturi Lal v. State of Uttar Pradesh[8], the court held that though it was negligent conduct on part of the state, it was done under the course of sovereign function, hence the state is not liable for damages.

    CONCLUSION

    Vicarious liability acts as an exception to the general rule where a person is held liable for his own wrongful act. Imposing vicarious liability is essential as this makes the master more concerned and as a result, he further delegates his work with due care and diligence.

    REFERENCES

    [1][1966] 1 QB 716.

    [2][1942] AC 509.

    [3]AIR 1994 Ker 289.

    [4]AIR 2002 Mad 340.

    [5]The Constitution of India, art. 300(1).

    [6](1861)5 Bom HCR App 1(A).

    [7]AIR 1962 SC 933.

    [8]1965 AIR 1039.


    BY VARNIKA SINGH CHAUHAN | BHARTI VIDYAPEETH NEW LAW COLLEGE,PUNE

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