Author-Innama Haider, Amity University
INTRODUCTION
Vicarious liability is a liability where one person instead of being liable himself for his own faults he or she will be liable for the wrongful act done by another . For being liable for the torts committed by other , there should be some existing relation between both the parties . The liability is joint and several. For example : The employer will be liable for the torts committed by his employee , parents are liable for the tort committed by their children .Also for a person to be liable under vicarious liability the tort committed should be under the course of employment.
Keywords : Vicarious liability, torts ,master, servant, independent contractor, responsibility , unlawful , employment.
Vicarious liability makes other person liable for the wrongful acts done by one person because that other person who is liable is in superior state to prevent that harmful act which is caused by second person . There are certain relationships which are jointly liable for each other’s act such as :
- Principal and Agent
- Master and servant
- Employer and employee
Generally vicarious liability which involves cases in it in which one person is in the state of superiority and can exercise his or her control accordingly . In this liability one person gets blamelessly liable for the wrongs other person has committed .
There are 2 maxims which are of utmost important in this concept of vicarious liability:
“Qui facit per alium facit per se” means “he who does an act through another is deemed in law to be have done it himself.”
“Respondeat superior” is a legal doctrine, most commonly used in tort, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.”
To be liable under vicarious liability , malicious intention is not always necessary.
To be liable under vicarious liability the tort should be committed under the course of employment
Course of employment includes :
- Wrongful act should be authorized by master.
- The mode in which act has been performed is unlawful .
Who is a servant?
A servant is someone on whom the master can exercise his control , who is paid by the master , can suspend or dismiss by his master , and on whom the master has the power to select him .
Difference between Servant and Independent Contractor
- A servant is someone who is bound by the orders of the master but independent contractor is someone who is bound by the terms of the contract .
- A servant is someone who is controlled by master but independent contractor is not controlled by anyone .
- A master is liable for the acts of the servant but not on independent contractor.
Course of employment
For making the master liable the servant should act under the course of employment
Which involves that the servant should do the unauthorized act under the control of master and in an unlawful manner.
There are various principal ways in which a master becomes liable for the wrong done by servants in the course of their employment.
1) “Wrong done as a natural consequence of an act by Servant for Master with due care
2)Wrong due to Negligence of Worker
3)Wrong by excess or mistaken execution of a lawful authority
4)Wrong committed wilfully by a servant with the intention of serving the purpose of the master
5)Wrong by Servant’s Fraudulent Act”
Vicarious liability in medical care
For any wrong which is done by the staff members of hospital under the course of employment such as any mistake done by lab assistant or any other employee of the hospital , any act which prove that they were negligent while performing their duty will make the doctor or the hospital vicariously liable .
Types of Liability:
Principal Liability:
Where one person who is in a superior state in any act of business , and ask his agent or orders him to do any wrongful or any unlawful act will make the principal liable , because only the principal can prevent the agent or his servant to do any harmful act . But to make the principal liable for the faults of his agent , the wrongful act should be committed under the course of employment .
Parental Liability
Whereby any such circumstances of the case which proves that parents provided children with any platform which make him do the wrongful act will make the parents vicariously liable for the acts of their children because it will be assumed that the particular act has been done under their supervision and the facts will prove the superior responsible because its only the superior who can prevent them doing that act.
Government Liability In Torts
Vicarious Liability of the State
“The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what extend the administration would be liable for the torts committed by its servants is a complex problem especially in developing countries with ever widening State activities. The liability of the government in tort is governed by the principles of public law inherited from British Common law and the provisions of the Constitution. The whole idea of Vicariously Liability of the State for the torts committed by its servants is based on three principles:
- Respondeat superior (let the principal be liable).
- Quifacit per alium facit per se (he who acts through another does it himself).
- Socialization of Compensation.”
Evolution in India
“As there is no legislation which specifies the vicarious liability of the state for the torts committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from.
Art. 300 gives the right to the public to sue the state. While it came into force after the implementation of the Constitution in 1950, similar provisions were also there in Government of India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.”
As the Government succeeded the company in administration i.e. East Indian Company, the liability of the government similar as it was with the company before 1858.”
CONCLUSION & COMMENTS
Generally in law people are liable for their wrongful act but vicarious liability is a form of liability where one person is liable for the wrongful acts done by another . In this form of liability generally the superior party or the master is liable because he is the one on whose direction the servant works . But for this type of liability to arise there should be some sort of relation between both the parties also the wrongful act should be done under the course of employment . Only the acts of servant or the employee makes the master liable ,no act of an independent contractor will make the master liable. Vicarious liability is a type of joint and several liability.
REFERENCES
- Online Articles / Sources Referred
- https://www.law.cornell.edu/wex/respondeat_superior
- https://www.legalserviceindia.com/legal/article-6602-qui-facit-per-alium-facit-per-se.html
- https://blog.ipleaders.in/vicarious-liability-case-master-servant-relationship-tort-law
- https://www.lawctopus.com/academike/vicarious-liability-state/
- https://blog.ipleaders.in/constitutional-tort-law-deals-vicarious-liability-state/
- Cases Referred
- Baldeo Raj Verses Deowati
- Peninsular and Oriental Steam Navigation Company v. Secretary of State for India
- Statutes Referred
- Article 300 of the Indian Constitution ,1950
- Article 176 of the Government of India Act, 1935
- Articles 32 in the Government of India Act 1915
- Article 65 in the Government of India Act 1858
- Article 65 in the Government of India Act 1865