Introduction
Vicarious liability means the legal liability of one person for the wrongful act committed by another because of a particular relationship between them. In tort law, a master or employer may be held liable for a tort committed by his servant or employee in the course of employment, even though the master did not personally commit the wrongful act.
The principle is commonly expressed by the Latin maxim “Respondeat superior,” meaning “let the superior answer.” It reflects the rule that an employer may be held responsible for the wrongful acts of an employee when those acts are sufficiently connected with the employee’s duties.
Salmond on Vicarious Liability
According to Salmond, vicarious liability is the liability of one person for the tort committed by another because of a particular relationship between them, particularly the relationship of master and servant. In simple terms, an employer may be held liable when an employee commits a tort in the course of employment, provided the requirements of vicarious liability are satisfied.
Latin Principles of Vicarious Liability
The principal Latin legal maxims associated with vicarious liability and the master-servant relationship are as follows:
Respondeat Superior—”Let the Superior Answer.”
This principle means that a master or employer may be held liable for the wrongful act of a servant or employee committed in the course of employment.
Qui Facit Per Alium Facit Per Se—”He Who Acts Through Another Acts Himself.”
The maxim expresses the principle that a person who acts through another may, in law, be treated as having performed the act himself. It supports the broader concept of vicarious responsibility.
Actus Non Facit Reum Nisi Mens Sit Rea — “An Act Does Not Make a Person Guilty Unless There Is a Guilty Mind.”
This is a general principle of criminal law relating to mens rea and is not a specific principle of vicarious liability in tort.
Omnis Ratihabitio Retrotrahitur Et Mandato Priori Aequipsratur—”Every Subsequent Ratification Relates Back to the Time of the Act and Is Treated as Equivalent to Prior Authority.”
The maxim expresses the principle that where an unauthorized act is subsequently ratified by the person entitled to authorize it, the ratification generally operates retrospectively, subject to the applicable law.
Meaning of Vicarious Liability
Vicarious liability arises when one person is held legally responsible for the tort committed by another because of their relationship. In the master-servant or employer-employee relationship, vicarious liability generally arises when:
- A master-servant/employer-employee relationship exists;
- The servant or employee commits a tortious act for which he is personally liable; and
- The tort is committed in the course of employment.
Example: If a delivery driver negligently injures a pedestrian while making a delivery for his employer, the employer may be held vicariously liable for the driver’s negligence.
Essential Conditions for Master’s Liability
The essential conditions for a master’s vicarious liability are
- Master-servant relationship: A relationship of master and servant or employer and employee must exist.
- Commission of a tort: The servant must have committed a tort for which he is personally liable.
- Course of employment: The tort must have been committed in the course of employment.
- Sufficient connection with employment: The wrongful act must have a sufficient connection with the employee’s work.
- Not wholly outside employment: The act must not be completely outside the scope of employment or solely for a personal purpose unconnected with the employment.
Master’s Non-Liability
A master is generally not vicariously liable for a servant’s wrongful act when:
- The act is outside the course of employment
- The servant has completely abandoned his employment and acted solely for a personal purpose
- The wrongdoer is an independent contractor rather than a servant
- the wrongful act has no sufficient connection with the employment; or
- The act has no connection with, or is wholly unrelated to, the master’s business.
Rules of Vicarious Liability
The principal rules of vicarious liability are
- An employer is generally liable for a tort committed by an employee in the course of employment.
- The employee must have committed a wrongful act for which he is personally liable.
- The employer may be liable even where the employee performs an unauthorized or improper act in the course of performing an authorized task.
- An employer is generally not liable for an act wholly outside the course of employment.
- Where the requirements of vicarious liability are satisfied, the employer and employee may be jointly and severally liable, subject to the applicable law, and the injured person may proceed against either or both.
Servant and Independent Contractor
The distinction between a servant (employee) and an independent contractor is important in determining vicarious liability. A servant works under the control and direction of the master/employer, particularly regarding the manner in which the work is performed; therefore, the master may be vicariously liable for the servant’s tort committed in the course of employment.
An independent contractor, however, is engaged to achieve a particular result but generally has control over the manner of performing the work; therefore, the person who engages him is ordinarily not vicariously liable for his tort. In both cases, the wrongdoer is personally liable for his own tort. However, the employer may be liable for an independent contractor’s acts in recognized exceptions, such as negligent selection, breach of a non-delegable duty, nuisance, or certain inherently hazardous activities.
Example: If A employs B as a driver and B negligently injures a pedestrian while performing his duties, A may be vicariously liable. But if A hires B as an independent contractor to construct a building and B causes injury through negligence, A is generally not liable merely because B was engaged by A.
Course of Employment
A master is vicariously liable for the tort of his servant only when the tort is committed in the course of employment. However, mere disobedience of the master’s instructions does not, by itself, absolve the master of liability if the servant was still acting in connection with his employment.
An employee acts in the course of employment when the wrongful act is sufficiently connected with the work he was employed to perform.
Therefore, an employer may be liable not only for an authorized act but also for an unauthorized, improper, or negligent manner of performing an authorized act.
Example: A bus driver is authorized to drive a bus but drives negligently and injures a passenger. Since the driver was acting in the course of his employment, the employer may be held vicariously liable.
However, if the employee completely abandons his employment and acts solely for a personal purpose unconnected with his work, the employer may not be liable.
State Liability for Torts
The maxim “The King can do no wrong” reflects the old doctrine of sovereign immunity, under which the state could not ordinarily be sued for the wrongful acts of its servants. In India, however, this immunity has been considerably restricted. The State may be held liable for torts committed by its servants, depending upon the nature of the act and the applicable law.
Sovereign functions are functions that are ordinarily performed only by the State, such as defense, maintenance of law and order, administration of justice, making laws, and collection of taxes. Non-sovereign functions are activities that the government performs like an ordinary organization, such as running hospitals, schools, transport services, and public enterprises. Traditionally, greater immunity was attached to sovereign functions, but modern Indian law has substantially narrowed this distinction.
Courts have also developed the principle of constitutional or public-law compensation for serious violations of fundamental rights, particularly Articles 21, 32, and 226 of the Constitution. Thus, victims of illegal detention, custodial violence, custodial death, and other serious abuses of state power may, in appropriate cases, receive compensation from the state. Therefore, the State cannot automatically claim immunity merely because the wrongful act was committed by a government servant; the nature of the act, the applicable law, and the rights violated must be examined.
Doctrine of Common Employment
The Doctrine of Common Employment, also known as the fellow-servant rule, was an old common-law rule under which a master was generally not liable when a servant was injured due to the negligence of a fellow servant employed in the same service. The doctrine was strongly criticized and has been abolished in England by the Law Reform (Personal Injuries) Act, 1948.
In India, the principle has been substantially displaced by statutory provisions protecting employees; under the Employees’ Compensation Act, 1923 (formerly the Workmen’s Compensation Act), an employer is liable to pay compensation for personal injury caused by an accident arising out of and in the course of employment, subject to the conditions and exceptions prescribed by the Act. Thus, an employee’s claim cannot ordinarily be defeated merely because the injury was caused by a fellow employee.
Important Indian and International Case Laws
Important authorities on the vicarious liability of master and servant include the following:
English Cases
- Limpus v. London General Omnibus Co. (1862): The employer was held liable for the driver’s wrongful act of obstructing a rival omnibus, as the act was done in the course of employment and for the master’s purposes, despite express instructions forbidding such conduct.
- Joel v. Morison (1834): The Court drew the classic distinction between a servant acting in the course of employment (even while taking a detour) and one engaged on a purely personal “frolic of his own.” The master is liable only in the former situation.
- Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board (1942): The employer was held liable when the driver of a petrol tanker negligently threw a lighted match while performing his duties, the act being an unauthorised mode of doing authorised work and therefore within the course of employment.
Indian Cases
- State of Rajasthan v. Vidyawati (1962): The Supreme Court held the State vicariously liable for the negligent driving of its servant in the course of employment while performing a non-sovereign function.
- Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt (1966): The Court examined the scope of a master’s liability for the tort of his servant (or sub-servant) and held that liability arises only when the act is within the course of employment.
- State Bank of India v. Shyama Devi (1978): The bank was held not liable for its employee’s fraudulent acts, as those acts were committed outside the course of employment.
Conclusion
Vicarious liability is based on the principle that an employer should, in appropriate circumstances, bear responsibility for torts committed by employees in the course of their employment. The most important questions are whether the relationship is one of employer and employee, whether a tort was committed, and whether the wrongful act occurred in the course of employment. The rules concerning independent contractors, State liability and common employment determine the extent of this responsibility.
