Vicarious liability

TANMOY MUKHERJI INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherji

Advocate.

 

Vicarious liability-

Tanmoy Mukherji

Advocate

Vicarious liability is a legal principle under the law of torts whereby one person is held liable for the wrongful acts of another, even though he has not committed the act himself, because of a special relationship between them.

QUI FACIT PER ALIUM FACIT PER SE-

-He who acts through another is deemed to act himself.

-It means liability without fault. The Superior (Employer/principal) is made responsible for the act of the Subordinate (Employee/Agent) done in the course in the employment.

Master's liability for Servant-

 The doctrine of Master's liability for servant is a branch of vicarious liability under the law of torts. It holds that a Master is liable for the tortious acts of his servant committed during the course of employment, even though the master himself is free from fault.

-This doctrine is based on justice, convenience and public policy.

-Qui Facit Per Alium Facit Per Se - he who does an act through another does it himself.

Master -

A person who -

→Employs another.

→Has the right to control the manner of work.

Servant-

In Yewens v/s Noakes (1880) it was held that a servant is one who is subject to the command of his master as to how the work is done.

Test to determine Master Servant relationship-

Control test- Master must have the right to control-

→What work is done.

→How it is done.

Reference Case-

Yewens v/s Noakes (1880)

Organization test- the servant is integral part of business.

Reference Case-

 

Stevenson, Jordan and Harrison Ltd. v/s Macdonald and Evans (1952)

Economic Reality test-

Reference Case-

Ready Mixed Concrete v/s Minister of pensions (1968)

Essentials of Master's liability-

 The following must be established-

i) Existence of Master-servant relationship - There must be a contract of service, not contract for service.

ii) Servant must commit a tort- The act must be a civil wrong. Such as

→Negligence

→Fraud

→Defamation

→Trespass.

iii) Tort must be committed during the Course of Employment -This is the most crucial requirement.

Authorise Act-

If the Servant commits a tort while doing an act authorized by master is liable.

Reference Case-

Authorized Act done in unauthorized manner

Even if the servant acts against instructions the master is liable.

Reference Case-

Unauthorized Act but Connected with employment

If the act is incidental to employment, master is liable.

Reference Case-

Act entirely outside employment

Master is not liable.

Reference Case-

FROLIC OF HIS OWN –

When a servant abandons the master's work and acts for personal reasons, master not liable.

Reference Case-

Master's liability for servant is a well-established doctrine ensuring that loss falls on the person who creates the risk and have the capacity to compensate. Indian Courts interpret it liberally to promote Social justice.