Vicarious Liability: As a general rule a person is liable for the wrongful acts committed by him but in certain relationships the per…
Vicarious Liability:
As a general rule a person is liable
for the wrongful acts committed by him but in certain relationships the person
may be liable for the wrongful acts committed by others.
for the wrongful acts committed by him but in certain relationships the person
may be liable for the wrongful acts committed by others.
This principle/rule of making other’s
liable for the wrongful conduct of the other is called vicarious liability.
liable for the wrongful conduct of the other is called vicarious liability.
This rule is based on the maxim
“Qui facit per alium facit per se” i.e. who does an act through another is deemed in law to do
it himself. When an act is authorized by the principal and is done by the agent
both are liable. The liability of master and servant is joint and several.
it himself. When an act is authorized by the principal and is done by the agent
both are liable. The liability of master and servant is joint and several.
The liability also arises even if no
express authority was given by the master/ principal.
express authority was given by the master/ principal.
Two essential elements:
1 1. The wrong should be committed by a person working in the
capacity of servant.
2. The Tort should have been committed during the course of his
employment.
capacity of servant.
2. The Tort should have been committed during the course of his
employment.
The
vicarious liability may arise in following relationship.
vicarious liability may arise in following relationship.
1 1. Master and servant.
2.
Owner
and independent contractor.
3.
Principal
and agent.
4.
Company
and its directors.
5.
Partners
and partnership firm
6. Guardian and ward.
2.
Owner
and independent contractor.
3.
Principal
and agent.
4.
Company
and its directors.
5.
Partners
and partnership firm
6. Guardian and ward.
CASE
LAW: State Bank of India Vs Shyama Devi
LAW: State Bank of India Vs Shyama Devi
The respondent, Mrs. Shyama Devi,
opened a Savings Bank Account with plaintiff’s predecessor (Imperial Bank of
India) at its Allahabad Branch. The respondents gave some cash and a cheque to
one Kapil Dew Shukla, who was a friend of the respondent’s husband and employed
in the said bank, for being deposited in her account. The said payments were
made to Kapil Dew Shukla in his capacity as the respondent’s husband’s friend.
No receipt or voucher was obtained indicating the said deposit. 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 and Bank’s ledgers. It was held by the Supreme
Court that the servant had acted outside the course of employment and appellant
bank could not be made liable for the fraud committed by its servant.
opened a Savings Bank Account with plaintiff’s predecessor (Imperial Bank of
India) at its Allahabad Branch. The respondents gave some cash and a cheque to
one Kapil Dew Shukla, who was a friend of the respondent’s husband and employed
in the said bank, for being deposited in her account. The said payments were
made to Kapil Dew Shukla in his capacity as the respondent’s husband’s friend.
No receipt or voucher was obtained indicating the said deposit. 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 and Bank’s ledgers. It was held by the Supreme
Court that the servant had acted outside the course of employment and appellant
bank could not be made liable for the fraud committed by its servant.
Master and Servant
Who is Servant – A Person who acts and
do work under the control & super vision of some other person.
do work under the control & super vision of some other person.
If a servant does a wrongful act in the
course of his employment, the master is liable along with the servant. Thus,
the wrongful act of the servant is deemed to be the act of the master as well.
This is based on the doctrine “Respondent Superior” – Let the principal
be liable.
course of his employment, the master is liable along with the servant. Thus,
the wrongful act of the servant is deemed to be the act of the master as well.
This is based on the doctrine “Respondent Superior” – Let the principal
be liable.
Conditions for the liability of the
master:
master:
The liability of a master is not
limited only to the acts, which he expressly authorizes to be done but he is
also liable for torts committed by his servant on his own accord in the
course of employment.
limited only to the acts, which he expressly authorizes to be done but he is
also liable for torts committed by his servant on his own accord in the
course of employment.
I. Liability of the Master for
different type of Torts Committed by the Servant:
1. Fraud of Servant: When a servant, while in the course of performance of his
duties, commits a fraud, the master would be liable for the same.
duties, commits a fraud, the master would be liable for the same.
CASE LAW: Lioyd
Vs Grace Smith & Co
Vs Grace Smith & Co
Ms. Lloyds approached M/s. Grace Smith
and Co. to seek investment related advice. The clerk who attended upon her
asked her to sell her properties and then re-invest the proceeds. Ms. Lloyd
signed certain documents, which were supposed to be sale deed. Actually, it
turned out to be gift deed in favour of the clerk. The clerk disposed the
property and misappropriated the funds. It was held that the company was liable
for the fraudulent acts of the clerk.
and Co. to seek investment related advice. The clerk who attended upon her
asked her to sell her properties and then re-invest the proceeds. Ms. Lloyd
signed certain documents, which were supposed to be sale deed. Actually, it
turned out to be gift deed in favour of the clerk. The clerk disposed the
property and misappropriated the funds. It was held that the company was liable
for the fraudulent acts of the clerk.
2.Theft by Servant: If a servant steals goods entrusted to his master, the
master is liable to the plaintiff.
master is liable to the plaintiff.
CASE LAW:
Morris Vs CW. Martin & Sons Ltd.
Morris Vs CW. Martin & Sons Ltd.
The defendant was running a dry
cleaning services. A fur coat entrusted to him for dry cleaning was stolen by
one of the servants of the company. Held, the defendant was liable for the
theft of the servant.
cleaning services. A fur coat entrusted to him for dry cleaning was stolen by
one of the servants of the company. Held, the defendant was liable for the
theft of the servant.
3.Mistake of
Servant: Where a servant, acting on behalf of
his master, makes a mistake, causing loss to the plaintiff, the master will be liable
for the same.
Servant: Where a servant, acting on behalf of
his master, makes a mistake, causing loss to the plaintiff, the master will be liable
for the same.
CASE LAW:
Bayley Vs Manchester, Sheffield.
Bayley Vs Manchester, Sheffield.
A railway company appointed porters
to assist passengers to board the right trains. One passenger had got into the
right train, The porter pulled him out and put him in another train. Held, the
railway company was liable for the mistake of the servant.
to assist passengers to board the right trains. One passenger had got into the
right train, The porter pulled him out and put him in another train. Held, the
railway company was liable for the mistake of the servant.
4. Negligence of Servant: If a servant acts negligently in the performance of his
duties or displays reckless behaviour, thereby causing loss to the plaintiff,
the master would be liable for the same.
duties or displays reckless behaviour, thereby causing loss to the plaintiff,
the master would be liable for the same.
CASE LAW:
Century Insurance Co Vs Northern Ireland Road Transport Board
Century Insurance Co Vs Northern Ireland Road Transport Board
‘A’, a driver of a petrol tanker,
was B’s servant. While transferring petrol from a lorry to an underground tank,
he struck a match to light a cigarette and carelessly threw it on the floor.
This resulted in a fire and damaged the petrol bank. Held that master was
liable for the servant’s negligent manner of doing his work.
was B’s servant. While transferring petrol from a lorry to an underground tank,
he struck a match to light a cigarette and carelessly threw it on the floor.
This resulted in a fire and damaged the petrol bank. Held that master was
liable for the servant’s negligent manner of doing his work.
5. Wrongful Delegation of Duties: If a servant negligently delegates his authority and allows
it to be performed by another person, the master will be liable for such
negligence of the servant.
it to be performed by another person, the master will be liable for such
negligence of the servant.
CASE LAW: Ricketts
Vs Thomas Tilling Ltd
Vs Thomas Tilling Ltd
The driver
of a bus asked the conductor to drive the bus. The conductor drove the bus
negligently and knocked down a pedestrian. Here, the master was liable for the
negligent delegation of work by the driver.
of a bus asked the conductor to drive the bus. The conductor drove the bus
negligently and knocked down a pedestrian. Here, the master was liable for the
negligent delegation of work by the driver.
II. Non-liability of
the Master for the acts of the servant
the Master for the acts of the servant
1) In
case where loss/ damage arises without the actual fault or knowledge of the
master.
case where loss/ damage arises without the actual fault or knowledge of the
master.
CASE LAW: Beard
Vs London General Omnibus Co.
Vs London General Omnibus Co.
The driver of a bus had gone to have
his dinner, leaving the bus in the custody of the conductor who decided to turn
the bus to keep it in readiness for the return journey. While doing so, he
negligently knocked down a passer by. Held, the master was not liable, as the
conductor acted outside the course of his employment.
his dinner, leaving the bus in the custody of the conductor who decided to turn
the bus to keep it in readiness for the return journey. While doing so, he
negligently knocked down a passer by. Held, the master was not liable, as the
conductor acted outside the course of his employment.
2) The
servant does the act in defiance of express prohibition and the act is
outside the course of employment.
servant does the act in defiance of express prohibition and the act is
outside the course of employment.
Case Law:
Twine Vs Beans Express Ltd.
Twine Vs Beans Express Ltd.
‘A’ provided a van for the use of a bank.
He put up two notices on the van, which read that no unauthorized person is
allowed to take a lift in the van. Also, that the driver had been expressly
told not to give lift to outsiders. The driver nevertheless gave lift to an
unauthorized person, who died in an accident caused by the driver’s negligence.
Held that A was not liable, for the act of giving lift was outside the scope of
employment. The court held that giving lift to an unauthorized person was not
merely a wrongful mode of performing an act, but is a performance of an act of
a category, for which the driver is not employed to perform at all.
He put up two notices on the van, which read that no unauthorized person is
allowed to take a lift in the van. Also, that the driver had been expressly
told not to give lift to outsiders. The driver nevertheless gave lift to an
unauthorized person, who died in an accident caused by the driver’s negligence.
Held that A was not liable, for the act of giving lift was outside the scope of
employment. The court held that giving lift to an unauthorized person was not
merely a wrongful mode of performing an act, but is a performance of an act of
a category, for which the driver is not employed to perform at all.
Case Law :
Sitaram Vs Shantanu Prasad
Sitaram Vs Shantanu Prasad
Sitaram the owner of a car had entrusted it to one Mohammad
Yakub for plying it as taxi. The said driver appointed a cleaner. One day, the
driver allowed the cleaner to use Sitaram’s car for the purpose of taking a
driving test. While taking the test, the cleaner injured a spectator. It was
held that the owner was not liable for he had not authorised the driver to
employ strangers. Secondly, the cleaner at the time of the accident was not
doing the master’s work. Thus the negligence of the servant took place outside
the scope of employment.
Yakub for plying it as taxi. The said driver appointed a cleaner. One day, the
driver allowed the cleaner to use Sitaram’s car for the purpose of taking a
driving test. While taking the test, the cleaner injured a spectator. It was
held that the owner was not liable for he had not authorised the driver to
employ strangers. Secondly, the cleaner at the time of the accident was not
doing the master’s work. Thus the negligence of the servant took place outside
the scope of employment.
Giving lift to
unauthorized third party
unauthorized third party
Position in India
The trend of the decisions of various High Courts in India
appears to have discarded the approach of the decision in the Twine
case, referred to above. In other words, according to decisions given by
various High Courts, giving lift to an unauthorized person by the driver makes
the master vicariously liable.
appears to have discarded the approach of the decision in the Twine
case, referred to above. In other words, according to decisions given by
various High Courts, giving lift to an unauthorized person by the driver makes
the master vicariously liable.
Hence students are advised to follow this
trend in the examination. Thus, the master is to be held vicariously liable if
the driver gives an unauthorized lift to a third party in the course of his
employment. However if the driver gives lift to a third party by taking a new
course of journey, not authorized by the master, the master is not liable.
trend in the examination. Thus, the master is to be held vicariously liable if
the driver gives an unauthorized lift to a third party in the course of his
employment. However if the driver gives lift to a third party by taking a new
course of journey, not authorized by the master, the master is not liable.
Effect of Express
prohibition laid down by the master
prohibition laid down by the master
Sometimes, the employer may forbid his servant from doing
certain acts. If the servant does the act in defiance of the prohibition, it
does not mean that the act is outside the scope of employment. Thus the master
is liable for such acts provided the act is done in the scope of employment.
certain acts. If the servant does the act in defiance of the prohibition, it
does not mean that the act is outside the scope of employment. Thus the master
is liable for such acts provided the act is done in the scope of employment.
Case law:
Limpus Vs London General Omnibus
Limpus Vs London General Omnibus
The owner of a bus had given express instructions not to
overtake or race with other vehicles. The bus driver defying the instructions,
overtook another bus, and in the process caused an accident. However the bus
owner was held liable for the negligence of the driver. The driver’s negligence
indeed took place within the scope of employment.
overtake or race with other vehicles. The bus driver defying the instructions,
overtook another bus, and in the process caused an accident. However the bus
owner was held liable for the negligence of the driver. The driver’s negligence
indeed took place within the scope of employment.
3) Where
the servant is temporarily lent to another person, master may not be liable for
the acts of the servant, if the temporary master exercises control and
superintendence over the servant.
the servant is temporarily lent to another person, master may not be liable for
the acts of the servant, if the temporary master exercises control and
superintendence over the servant.
Case Law:
Mersey Docks & Harbour Board Vs Coqqins & Griffith Ltd.
Mersey Docks & Harbour Board Vs Coqqins & Griffith Ltd.
A stevedoring company hired a crane, from
a Harbour Board along with the services of a crane driver, on rolls with the
Harbour board. While unloading cargo for the stevedoring company, the driver
negligently injured a person. Held that it was the Harbour Board, which was
liable to X.
a Harbour Board along with the services of a crane driver, on rolls with the
Harbour board. While unloading cargo for the stevedoring company, the driver
negligently injured a person. Held that it was the Harbour Board, which was
liable to X.
III. Liability of the
Employer for the acts of an Independent Contractor
Employer for the acts of an Independent Contractor
Generally, the employer is not liable for the torts
committed by an independent contractor employed by him.
committed by an independent contractor employed by him.
However, this rule has some noted
exceptions, where an employer can be made liable for the wrongs of the
independent contractor.
exceptions, where an employer can be made liable for the wrongs of the
independent contractor.
a) If an
employer authorizes the doing of an illegal act
employer authorizes the doing of an illegal act
b) The
employer’s liability arises for the dangers caused on or near the highway.
employer’s liability arises for the dangers caused on or near the highway.
Case Law:
Tarry Vs Ashton
Tarry Vs Ashton
A person got a lamp fixed on the outside
of his house through on independent contractor. The lamp, which was negligently
fixed, was over hanging on the footway adjoining the person’s house. It fell
down and injured a passerby. It was held that the person who got the lamp fixed
was liable for he has a duty to see that the job was properly done.
of his house through on independent contractor. The lamp, which was negligently
fixed, was over hanging on the footway adjoining the person’s house. It fell
down and injured a passerby. It was held that the person who got the lamp fixed
was liable for he has a duty to see that the job was properly done.
c) An
employer is liable for the act of an independent contractor in cases of strict
liability.
employer is liable for the act of an independent contractor in cases of strict
liability.
Case Law:
Rylands Vs Fletcher
Rylands Vs Fletcher
The owner of a mill, employed a contractor
to construct a reservoir on his land to provide water to his mill. While
digging, the contractor failed to notice some disused shafts beneath the ground
and as such, did not block them up. Thereafter, he filled the reservoir with
water. That night, the water broke through some of the shafts and flooded the
neighbour, Y’s mine. The court held that X was liable for the damage caused to
Y, even though the damage could not be attributed to his negligence.
to construct a reservoir on his land to provide water to his mill. While
digging, the contractor failed to notice some disused shafts beneath the ground
and as such, did not block them up. Thereafter, he filled the reservoir with
water. That night, the water broke through some of the shafts and flooded the
neighbour, Y’s mine. The court held that X was liable for the damage caused to
Y, even though the damage could not be attributed to his negligence.
Practice
exercise:
exercise:
1.
This principle/rule of making other’s liable for the wrongful conduct of the
other is called
This principle/rule of making other’s liable for the wrongful conduct of the
other is called
A.
Volenti non fit injuria
Volenti non fit injuria
B.
Joint liability
Joint liability
C.
Vicarious liability
Vicarious liability
D.
Plaintiff the wrong doer
Plaintiff the wrong doer
Ans:
C
C
2.
Qui facit per alium facit per se means
Qui facit per alium facit per se means
A.
Knowledge of injury
Knowledge of injury
B.
Who does an act through another is deemed in law to do it himself
Who does an act through another is deemed in law to do it himself
C.
Who does an act through another is not deemed in law to do it himself
Who does an act through another is not deemed in law to do it himself
D.
Plaintiff the wrong doer
Plaintiff the wrong doer
Ans:
B
B
3. The essential elements for vicarious
liability:
liability:
A.
The wrong should be committed by a person working in the capacity of servant
The wrong should be committed by a person working in the capacity of servant
B.
The tort should have been committed during the course of his employment
The tort should have been committed during the course of his employment
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
C
C
4.
The vicarious liability may arise in following relationship.
The vicarious liability may arise in following relationship.
A.
Master and servant.
Master and servant.
B.
Owner and independent contractor.
Owner and independent contractor.
C.
Guardian and ward
Guardian and ward
D.
All of the above
All of the above
Ans:
D
D
5. If the employee of the bank takes a cheque
from a neighbour who is a customer of the bank and misappropriates it. Will the
bank be held liable?
from a neighbour who is a customer of the bank and misappropriates it. Will the
bank be held liable?
A.
Yes
Yes
B.
No
No
C.
Maybe
Maybe
D.
None of the above
None of the above
Ans:
B
B
6.
A Person who acts and do work under the control & super vision of some other
person. He is
A Person who acts and do work under the control & super vision of some other
person. He is
A.
Servant
Servant
B.
Master
Master
C.
Contractor
Contractor
D.
None of the above
None of the above
Ans:
A
A
7. Respondent Superior means
A.
Let the principal be liable
Let the principal be liable
B.
The servant is the wrongdoer
The servant is the wrongdoer
C.
Master is superior
Master is superior
D.
None of the above
None of the above
Ans:
A
A
8.
The liability of a master is not limited only to the acts, which he expressly
authorizes to be done but he is also liable for torts committed by his servant
on his own accord ______________________
The liability of a master is not limited only to the acts, which he expressly
authorizes to be done but he is also liable for torts committed by his servant
on his own accord ______________________
A.
At any given point of time
At any given point of time
B.
During the course of employment
During the course of employment
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
B
B
9.
If a servant steals goods entrusted to his master, will the master is liable to
the plaintiff
If a servant steals goods entrusted to his master, will the master is liable to
the plaintiff
A.
Yes
Yes
B.
No
No
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
A
A
10. A servant, acting on behalf of his master,
makes a mistake, causing loss to the plaintiff, will the master will be liable
for the same?
makes a mistake, causing loss to the plaintiff, will the master will be liable
for the same?
A.
Yes
Yes
B.
No
No
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
A
A
11.
If a servant negligently delegates his authority and allows it to be performed
by another person, will the master be liable for such negligence of the
servant?
If a servant negligently delegates his authority and allows it to be performed
by another person, will the master be liable for such negligence of the
servant?
A.
Yes
Yes
B.
No
No
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
A
A
12.
If the driver gives lift to a third party by taking a new course of journey,
not authorized by the master, the master will be
If the driver gives lift to a third party by taking a new course of journey,
not authorized by the master, the master will be
A.
Vicariously liable
Vicariously liable
B.
Not liable
Not liable
C.
Jointly liable
Jointly liable
D.
None of the above
None of the above
Ans:
B
B
13.
If the servant does the act in defiance of the prohibition, will the master be
liable?
If the servant does the act in defiance of the prohibition, will the master be
liable?
A.
Yes
Yes
B.
No
No
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
A
A
14.
The owner of a bus had given express instructions not to overtake or race with
other vehicles. The bus driver defying the instructions, overtook another bus,
and in the process caused an accident. Will the owner be held liable?
The owner of a bus had given express instructions not to overtake or race with
other vehicles. The bus driver defying the instructions, overtook another bus,
and in the process caused an accident. Will the owner be held liable?
A.
Yes
Yes
B.
No
No
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
A
A
15.
Generally, will the employer be liable for the torts committed by an
independent contractor employed by him?
Generally, will the employer be liable for the torts committed by an
independent contractor employed by him?
A.
Yes
Yes
B.
No
No
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
A
A
16.
What are the exceptions where an employer can be made liable for the wrongs of the
independent contractor?
What are the exceptions where an employer can be made liable for the wrongs of the
independent contractor?
A.
If an employer authorizes the doing of an illegal act
If an employer authorizes the doing of an illegal act
B.
The employer’s liability arises for the dangers caused on or near the highway
The employer’s liability arises for the dangers caused on or near the highway
C.
All of the above
All of the above
D.
None of the above
None of the above
Ans:
C
C
17.
The defendant was running a dry cleaning services. A fur coat entrusted to him
for dry cleaning was stolen by one of the servants of the company. Will the
defendant be liable?
The defendant was running a dry cleaning services. A fur coat entrusted to him
for dry cleaning was stolen by one of the servants of the company. Will the
defendant be liable?
A.
Yes
Yes
B.
No
No
C.
Maybe
Maybe
D.
None of the above
None of the above
Ans:
A
A
18.
Will an employer be liable for the act of an independent contractor in cases of
strict liability?
Will an employer be liable for the act of an independent contractor in cases of
strict liability?
A.
Yes
Yes
B.
No
No
C.
Maybe
Maybe
D.
None of the above
None of the above
Ans:
A
A
19.
The owner of a mill employed a contractor to construct a reservoir on his land
to provide water to his mill. While digging, the contractor failed to notice
some disused shafts beneath the ground and as such, did not block them up. That
night, the water broke through some of the shafts and flooded the neighbour,
Y’s mine. Will the owner be held liable?
The owner of a mill employed a contractor to construct a reservoir on his land
to provide water to his mill. While digging, the contractor failed to notice
some disused shafts beneath the ground and as such, did not block them up. That
night, the water broke through some of the shafts and flooded the neighbour,
Y’s mine. Will the owner be held liable?
A.
Yes
Yes
B.
No
No
C.
Maybe
Maybe
D.
None of the above
None of the above
Ans:
A
A
20.
In India does giving lift to an unauthorized person by the driver makes the
master vicariously liable.
In India does giving lift to an unauthorized person by the driver makes the
master vicariously liable.
A.
Yes
Yes
B.
No
No
C.
Maybe
Maybe
D.
None of the above
None of the above
Ans: B
