Law imposes certain duties upon its citizens. A breach of these duties is a
wrongful act. When a person breaches duty imposed by civil law in contrast to
criminal law or civil wrongs such as breach of contract or breach of trust, he
commits a breach of Tort law. Tort is primarily a civil wrong, a breach of
general legal rights vested in another.
In the common course of law, a person who commits the crime, serves the time.
However, there are some exceptions to this general rule, one of which is the
common law concept of vicarious liability. The term vicarious is derived from
the Latin term "vice" meaning in place of. Etymologically, vicarious liability
means 'liability instead' i.e. liability incurred by one yet suffered or
discharged by another. The term 'vicar' is the cognate of vice and means "in the
person of" or a substitute.
In the eyes of law, a man can not be held liable for the acts of another, he
would only be held liable for the torts or wrongful acts committed by him. Under
certain circumstances however, a person can be held liable to discharge the
liability of another. When a person discharges liability of another under such
circumstances, then he is said to incur a vicarious liability. Vicarious
liability imposes liability on a person other than the wrongdoer is also known
as imputed liability.
It occurs when:
- A wrongful/ tortious act or omission is committed by one person
- There exists a relationship of control between the wrongdoer and the
- When such an act or omission is directly related to the said
There can be enumerated 3 kinds of relationships, where the concept of
vicarious liability can be imposed, namely:
The relationship between an Agent and the Principal: The agent and the principal share a fiduciary relationship i.e. a
relationship based on trust. In this relationship, the principal employs the
agent and authorises him to act on his behalf and discharge duties that have
been imputed upon him by the principal. The person who is authorised to act
as such is the agent.
The authorisation of the principal can be expressed or implied. If the agent
commits a tort in the due course of his employment or in discharge of his
duties, liability can also be imputed upon the principal who authorised such
an act in the first place.
Here, the principal stands in a position of power and control over his
agent. Therefore, both the agent and the principal are joint tortfeasors and
their liability is joint and several. The plaintiff has the right to sue
both or either.
In, State Bank of India v. Shyama Devi,
The plaintiff's husband had handed over cheques to be deposited in his
account to a friend who was an employee of the defendant bank. No receipts
of the deposits were collected and the friend misappropriated the amount. It
was held by the Court that the employee was not acting in his scope of bank
employment but as a depositor's friend when he committed the fraud.
Therefore, the defendant bank could not be held liable by vicarious
The relationship between a master and his servant: It is a general rule of law, that if a master authorises or orders certain
acts to be performed by his servant, then the master must be held liable for
any tort that the servant commits. Again, here the master stands in a
position of control or authority over the servant who works under his
supervision. The master's liability arises because he enjoys the benefit of
acts done by his servant.
However, for the master to be made liable for the acts of his servant the
following essentials must be fulfilled:
It is pertinent to note that this liability arises even when the servant acted
against the express instructions and for no benefit of his master. Like in the
agent and principal relationship, the liability of the master and servant is
joint and several and both are joint tortfeasors.
- The tort was committed by the servant. The servant is a person employed to
fulfill all the duties delegated by his master.
- The servant committed the tort in the "course of employment." An act is
said to be in the course of employment when the wrongful act is expressly authorised
by the master or if it is a wrongful or unauthorised mode of performing an act
authorised by the master.
However, in cases where a
servant acts outside the course of his employment, the master can not be made
liable for his acts merely because he would not have had the opportunity to
perform such an act but for being in the master's service.
Similarly, the master
cannot be held liable for the wrongful acts of an independent contractor hired
by him. Like a servant, an independent contractor undertakes to complete a task
of its employer however, unlike a servant, he is not under the supervision or
control of his employer and can use independent discretion in discharge of his
Traditionally, the test to determine the difference between a servant
and an independent contractor used to be the "control test". However, modern
authorities apply the "hire and fire" test i.e. to check if a person is the pay
master of another and has the right to fire his employee.
Liability of partners:The relationship between partners is that of a principal and agent and the rules
of agency also apply to them. All actors in a partnership act on behalf of each
other while representing themselves as a collective. These partnerships can take
forms of firms, companies, a trustee or even a Karta representing a Hindu joint
family. Therefore, a partner can be held vicariously liable for a wrongful or
negligent act by another partner under the rules enumerated in Indian
Partnership Act, 1935.
In Hamlyn v Houston & Co. one of the partners of the form, acting within the
scope of his authority, attempted to bribe the clerk of the plaintiff to induce
him to commit a breach of his employment contract. It was held by the court that
the other partner can be held vicariously liable for a tort committed by one of
Liability of the state:
For decades now, the powers and functions of state have expanded considerably.
There has been substantial change from the traditional laissez faire policies to
recognition of state as welfare state. It is also a popular saying that "power
corrupts and absolute power corrupts absolutely."
Therefore, a check on the
state powers to ensure its accountability in circumstances of violation of
common legal rights of citizens by state employed actors is an essential
requirement. This requirement has been fulfilled by Article 300 of the Indian
Constitution which provides that the Union of India and the States are juristic
persons for the purpose of any suit or proceedings and as such can sue or be
sued in their name.
Before the coming of the Indian Constitution as it stands
presently, there was a brief mention of the liability of the state under Section
65 of The Government of India Act ,1858. The concept of imputation of vicarious
liability upon the state is essential for the performance of its basic duty of
protection of its citizens. If it wasn't for such provisions, no doctors in a
government hospital or no police officers could have been held liable for any
malicious or wrongful acts.
Basis and justification of the concept of Vicarious Liability
The concept of vicarious liability finds its roots in the following Latin maxims
-- "Quit facit per aliumfacit per se
Literally means, " he who does an act through another is deemed in law to do it
himself". This maxim is applicable in the master-servant and Principal-agent
relationships because one of the actors in the relationship is employed by
another specifically to Act on their behalf or perform certain specified acts.
Because they enjoy the benefits of acts of another, they are also liable to
accept any liabilities that may ensue in the performance of such acts.
Literally means, "let the superior be liable." Here again, the master and the
principle enjoy a position of power and control whereby they can dictate or
authorise performance of an act. In these cases, because they hold a position of
superiority, they can be held vicariously liable for the acts of their
Although these maxims elaborate upon the principle and can be said to form its
basis yet, they can not dictate the law itself. These ideas must be combined
with policy considerations to give material results.
The doctrine also
finds its justification in the following reasons:
- The presumption that any person employing another on his behalf has
"deep pockets" and therefore, can be held liable as a substitute to the
actual wrongdoer to satisfy the claims of one who has been wronged. For
example, in a master servant relationship, the master may be able to satisfy
a claim because of his larger pockets or his claim in insurance.
- Since the master has a potential financial concern, he will ensure
absolute safety and care for his employees and for others.
- Since one enjoys the fruits of labour of another, he must also be held
liable for any loss caused. He can not be allowed to accept the benefit and
reject the burden of his labour.
Vicarious liability imposes liability on a person who is not personally
responsible for any tortious wrong. It can be understood as a strict liability
on the employer for the acts of his employees. The concept is certainly
beneficial for the victim or the plaintiff in order to get claim and
compensation for any damage caused to him.
Yet, this liability also imposes an
unreal burden on the employer to fulfill the liabilities incurred by another,
even when such an act could be potentially malicious in nature. It also poses
problems pertaining to the scope of one's employment, a potentially indirect authorisation and the lack of certainty of intention on behalf of the tortfeasor
or wrong doer.
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