Vicarious liability, a fundamental doctrine in the realm of tort law, is a legal
concept that has far-reaching implications for individuals, businesses, and
institutions across the globe. Rooted in the principles of justice, fairness,
and accountability, vicarious liability addresses a critical question: should
one party be held responsible for the wrongful actions of another? This legal
doctrine provides a nuanced response to this query, serving as a cornerstone of
modern legal systems.
At its core, vicarious liability holds one party accountable for the actions or
omissions of another, typically within the context of an employment or agency
relationship. The central premise is that when an individual or entity (the
"principal" or "employer") engages another party (the "agent" or "employee") to
act on their behalf, they must bear the consequences of the agent's actions
during the course of their authorized activities. This doctrine reflects the
underlying belief that it is just and equitable for those who benefit from the
services or labor of agents to also bear the risks associated with those agents'
The historical origins of vicarious liability can be traced back to English
common law, where it initially emerged as a response to the limitations of
personal responsibility and the desire to provide redress to victims. Over time,
vicarious liability has evolved, adapting to the changing dynamics of society,
business, and employment relationships. This evolution has seen its
incorporation into statutory frameworks and the broadening of its application
beyond traditional master-servant scenarios.
Key elements underpin the application of vicarious liability, including the
nature of the relationship between the principal and agent, the scope of
employment or agency, and the foreseeability of the wrongful act. Courts around
the world grapple with these factors when determining whether vicarious
liability should be imposed in a given case.
In practice, vicarious liability extends its influence into numerous sectors,
including healthcare, corporate governance, education, and beyond. Employers
must carefully navigate the intricacies of this doctrine, implementing measures
to minimize the risk of employee misconduct and to protect both their interests
and those of the public. Victims, in turn, rely on vicarious liability as a
means of seeking compensation for harms suffered due to the actions of
individuals or entities they may not have directly interacted with.
This introduction sets the stage for a comprehensive exploration of vicarious
liability, delving into its historical development, legal principles, practical
implications, and its role in shaping the broader landscape of accountability
and justice in modern society.
Doctrine Of Vicarious Liability:
- The "Master and Servant liability" is a term used to describe the well-established vicarious liability doctrine, the obligation taken on in place of or in addition to another.
- Vicarious liability is a legal theory in tort law that establishes the situation where one party, usually an employer, is held accountable for the wrongdoings or negligence of another party, frequently an employee, even though the employer did not directly take part in the harmful act.
- This philosophy is based on the notion that the employer gains from and has control over the employee's activities while they are doing their duties.
- In order for vicarious liability to be applicable, the wrongdoing must take place within the course and scope of employment, which means it must be properly related to the employee's job responsibilities and approved by the employer. Except when the activity is intrinsically harmful, independent contractors are not normally held liable.
- The doctrine serves to ensure that there is a financially responsible party capable of compensating the victim, providing a remedy especially in cases where the employee lacks the resources to adequately cover the damages caused.
The liability arising is discussed based on the different kinds of relationship,
where they can be classified into 3 types which are as follows:
Principal and Agent:
- Relationship between that of a Principal and the Agent.
- Relationship between that of partners of a firm.
- Relationship between the master and that of a servant.
It can be claimed that it is founded on the general tenet
"Qui facit per alium facit per se," which states that an agent's action is
considered to be the principal's action. Here, when one person is given
permission to commit a crime by another, both that person and the one who gave
the permission will be held accountable.
The person authorizing may declare or imply their authority. When an agent
violates a duty in the course of performing that duty, even though the principal
does not typically direct his agent to do so, the principal is also held
accountable for that violation.
In the case of Lloyd v Grace, Smith &Co
., The court defined the parameters of
tort vicarious liability. In this instance, a legal assistant's assistant stole
money from clients. Due to the fact that the clerk's acts were unapproved and
outside the scope of her employment, the court determined that the firm was not
vicariously liable. For vicarious liability to apply, the Court underlined the
significance of acts occurring within the permitted scope of employment, setting
a standard for subsequent cases involving employee misbehavior.
In the case of Ormrod v. Crosville Motor Service Ltd
., In one instance, the
owner of the vehicle asked someone to drive it to Monte Carlo so that he could
later travel there with pals for a holiday. However, the driver struck a bus
carelessly, resulting in damage and casualties. The car owner was held
accountable, according to the Court of Appeal. Despite the owner giving express
consent for the trip, the driver nevertheless received personal benefits from
driving the vehicle, rendering the owner vicariously liable for the collision as
a result of the driver's acts.
Even a partnership between two people is considered to be a
principle and agent relationship. If a partner violates the law, the entire
partnership is responsible for the violation.
For instance take the case of Hamlyn v Houston & Co.
,  where two partners of
the firm are operating in the course of their employment and one partner of the
firm bribed the plaintiff's clerk and persuaded the clerk to break the contract.
In light of the relationship between the two partners, which is referred to as
one of a principle and agent, it was decided that both partners are responsible
for the tort committed by one partner.
Master and Servant:
This refers to the master-servant relationship in which
the servant obediently carries out the master's commands. If a servant does an
unlawful conduct while doing their duties, the master is responsible for that
action. The master is then also responsible for the wrongdoing in addition to
the servant. Here, it is claimed that the master himself carried out the act
that the servant did.
The adage "Respondeat Superior," which translates to "let the principal be
liable," is used to explain the theory of the master's accountability for a tort
committed by his servant. It can be claimed that whomever does an act through
another is presumed to have done so through the master himself.
The two essentials to be fulfilled by the for the liability of master to
- The tort was committed by the servant.
- The servant committed the tort in the course of his employment.
Servant: A servant is a person who is engaged by another person to perform a
certain task under the master's supervision and in accordance with the master's
instructions. In principle, an independent contractor's actions are not subject
to liability; only a master would be responsible for a servant's actions.
The three tests to determine the relationship between master and a servant:
- Hire and fire test
- Integration test
- Multiple test
Distinguishing Servant And Independent Contractor
When it comes to the way the task is to be done, a servant is an agent who must
be under the employer's control and supervision. A servant, commonly an
employee, works under direct supervision and control of an employer, following
specific instructions and schedules. Employers have authority over both what
tasks the servant performs and how they are done. 
In contrast, an independent contractor operates autonomously, hired to complete
specific projects with minimal oversight. They retain control over their methods
and are engaged for specialized skills or tasks. While servants are integrated
into the core operations of a business and often receive benefits, independent
contractors are self-employed, responsible for their own taxes and benefits.
Employers are vicariously liable for servants' actions within the scope of
employment, as they act on the employer's behalf. However, this liability does
not extend to independent contractors, as they are considered separate entities,
accountable for their own work. Thus, the key distinctions lie in the level of
control, integration into the business, tax responsibilities, and the extent of
liability, highlighting the fundamental differences between these two
classifications of workers.
Liability Of Employer For Acts Of An Independent Contractor
An employer's liability for acts committed by an independent contractor is
generally limited compared to that of employees. Independent contractors are
considered separate entities from the hiring organization. As a result,
employers are typically not held directly responsible for the contractor's
actions or negligence in the same way they would be for employees.
If an independent contractor fails to fulfill their obligations or causes harm
to others, the contractor is usually personally liable for any resulting legal
consequences or damages. However, there are exceptions to this rule. Employers
can be held liable for the actions of an independent contractor if they exercise
a high degree of control over the contractor's work, if they hire a contractor
known to be incompetent or dangerous, or if the work the contractor is hired for
is inherently risky, such as construction or hazardous materials handling. 
In such cases, the employer may share liability or be held fully responsible for
any wrongdoing. It's crucial for employers to clearly define the terms of the
contractor relationship and understand the legal boundaries to mitigate
potential liability issues.
Exceptions To The Employers Liability For Independent Contractor
Exceptions to the general rule of employers being liable for the actions of
their employees do exist when it comes to independent contractors. Independent
contractors are individuals or entities hired to perform specific tasks, but
they are not employees of the hiring party. In many cases, employers are not
held liable for the actions of independent contractors, but there are exceptions
to this rule. Here are a few common exceptions along with relevant case
Non-Delegable Duties: Employers cannot escape liability if they have a
non-delegable duty to perform a specific task, even if they hire an independent
contractor. For instance, if a property owner hires an independent contractor to
repair a building, but the contractor's negligence leads to an accident, the
property owner might still be held liable. The case of Berge v. International
Harvester Co. (1983) is an example where the court held the property owner
responsible for injuries caused by the independent contractor's negligence
because the duty of care was non-delegable. 
Negligent Selection or Supervision: If an employer fails to properly select or
supervise an independent contractor, they can be held liable for any resulting
harm. For instance, if a company hires an independent contractor without
checking their qualifications and the contractor causes harm due to
incompetence, the hiring company might be held liable. In the case of Alvarez v.
State (2012), the court found the state liable for negligent hiring and
supervision of an independent contractor who caused harm to a third party.
Ultra-Hazardous Activities: Employers can be held liable for the actions of
independent contractors performing ultra-hazardous activities. These are
activities so inherently dangerous that even with utmost care, there is still a
risk of harm. In such cases, both the employer and the independent contractor
can be held jointly liable. An example can be found in the case of Preston v.
Amer. Barge Corp. (1997) where the court held both the employer and the
independent contractor liable for an explosion caused during a highly dangerous
marine construction operation.
Lending A Servant To Another Person
Lending a servant, also known as loaned servant doctrine, refers to a situation
where an employer temporarily lends an employee to another person or entity. The
question often arises as to which employer is liable for the actions of the
employee: the original employer or the one to whom the employee was loaned. The
determination typically depends on who exercises control over the employee's
work during the specific task or period.
As the employer in this case, Mercy Docks & Harbour Board, the House of Lords
(now known as the Supreme Court of the United Kingdom) had to determine whether
it was vicariously liable for the activities of Mr. Coggins, a foreman who
operated a crane. Coggins, in the course of his employment, negligently operated
the crane, causing damage to a ship owned by Coggins & Griffiths (Liverpool)
Ltd, a ship repair company.
The central issue was whether the employer, Mercy Docks & Harbour Board,
could be held vicariously liable for the negligent actions of its employee,
Coggins. The House of Lords held that the employer was vicariously liable for
Coggins' negligence because he was acting in the course of his employment when
the incident occurred. The ruling emphasized the vicarious responsibility
principle, noting that if an employee acts in the course of employment, the
employer may be held liable for that employee's activities.
This case further established and clarified the scope of vicarious liability in
employer-employee relationships and remains an important precedent in English
law concerning the liability of employers for the acts of their employees.
In the case of Hull vs. Lees, An organization that provided nurses for
patient care was not held responsible when a patient, P, suffered severe
scalding due to the negligence of nurse Q, whom P had hired through the
organization. Although the association facilitated the nurse's employment, it
was not found liable for the incident.
Course Of Employment
In tort law, the concept of "course of employment" is crucial in determining an
employer's liability for the actions of its employees. If an employee commits a
crime while working for a person or business, that person or business might be
held accountable. Essentially, this principle states that an employer may be
held accountable for an employee's conduct while they are engaged in
For instance, the employer may be held responsible for any damages if a delivery
driver causes an accident while performing work-related duties for the company.
This is because the driver's acts were performed in the course of employment.
However, there are exceptions and nuances to this rule. If an employee deviates
from their assigned tasks significantly, engaging in personal activities
unrelated to their job, the employer might not be held liable for any wrongful
acts committed during this time.
For instance, if the same delivery driver, instead of delivering packages,
decides to go on a personal shopping spree and causes an accident, the employer
may not be held responsible as this action falls outside the course of
employment. Additionally, if an employee engages in intentional wrongdoing, like
assault or fraud, the employer could still be held liable if the actions were
somehow related to the job or if the employer failed to properly supervise or
train the employee.
In conclusion, the idea of "course of employment" in tort law is a legal
doctrine that makes employers liable for the acts of their employees when those
acts take place within the scope of their job responsibilities. The
determination often involves analyzing the nature of the act, the employee's
intentions, and whether the actions were in line with the job responsibilities.
In the case of Barwick v. English Joint Stock Bank
, the court ruled that
even if the employer did not specifically authorize a wrongful act, they could
still be held accountable if the act was within the general scope of the
employee's duties. By placing the employee in a position to perform certain
tasks, the employer assumes responsibility for the employee's actions related to
In the case of National Insurance Company, Kanpur v. Yogendra Nath
, the car
owner gave his servants permission to care for his car, including keeping it
clean, while he was away. One of the servants, entrusted with the task, took the
car to a petrol pump to inflate the tires but unfortunately hit two pedestrians.
Since this action occurred while the servant was performing a task related to
his employment, the employer was held vicariously liable for the incident.
Fraud Of Servant
If a servant engages in fraudulent activities while on the job, the employer is
held accountable. This responsibility also applies if the servant steals items
belonging to someone else that were entrusted to the employer during their
employment. The employer is equally responsible for errors, mistakes, or the
improper use of authority leading to losses in goods entrusted to them.
The servant has an implied duty from the employer to protect the employer's
property, which gives rise to this liability. The employer is responsible for
any losses or injuries to a third party caused by excessive force used by the
servant in performing this job.
In the case of Lloyd v. Grace Smith & Co
., An unscrupulous managing clerk of
a law office convinced a customer to transfer two properties to him. The firm
had allegedly granted the managing clerk ostensible ability to handle specific
types of business by enabling him to interact with clients, according to the
House of Lords. Thus, the company was responsible for the deception.
In the case of State Bank of India v. Shyama Devi
, At the Allahabad Branch
of the plaintiff's predecessor, Imperial Bank of India, Mrs. Shyama Devi opened
a savings bank account. She trusted Kapil Deo Shukla, a friend of her husband's
and a bank employee, to deposit money and a check into her account.
Nevertheless, Shukla cashed the check and embezzled the funds without giving a
Instead of depositing the money, the bank employee altered the respondent's pass
book and the bank's records. The appellant bank was released from responsibility
for the fraudulent actions carried out by its employee by the Supreme Court,
which determined that the individual's actions were outside the scope of his
Delegation Of Authority By Servant:
The master will be held accountable if the servant gives a third party the
authority that his master has granted him and that person violates the law.
Therefore, if a bus driver lets a third party drive the vehicle instead of
themselves and that third party injures someone as a result of their careless
driving, the bus driver will be held accountable. The third party is not acting
in the course of employment; rather, the master is liable for the servant's
negligence in giving the authority to the third party.
We can take the case of Ormrod v Crosville Motor Service Ltd,1953
Theft By Servant
If the servant committed the crime (during the course of employment), the master
of the servant would be held vicariously accountable. There would be joint and
several liability in this situation. Co-tortfeasors would be considered to be
both the master and the servant. It is not necessary to assume guilt for the
activity to have been carried out for the master's profit. The principle of tort
law that holds the master accountable for any wrongdoing carried out by the
servant is well-established.
In the matter of Cheshire v. Bailey
, a goldsmith borrowed a coach and coachman
from the defendants so that he may show his items to potential customers
throughout London. The coachman, however, conspired to steal the silver with
other individuals. Held The court dismissed the defendant's claim for damages
based on the assumption that the coachman's acts had clearly gone beyond the
scope of his employment.
According to the ruling, "It is a crime committed by a person who, in doing so,
severed his relationship with his master and became a stranger; and, as the
circumstances surrounding its commission are known, it raises no presumption of
negligence on the part of the defendant."
In the case of Morris v. C W Martin and Sons, Ltd
., California, 1965,The
plaintiff brought the defendants her mink stole to be cleaned. An employee
received the fur and took it. Because the theft was not carried out in the
course of work, the judge had ruled that the defendants were not accountable.
Mistake Of Servant
The term "mistake of a servant" refers to a huge or excessive use of the power
to accomplish anything that causes the plaintiff to lose. If a servant commits a
wrongdoing while employed and it is related to his assigned work, the master is
responsible for that wrongdoing.
In the case of Poland John Parr and Sons, Inc. The court of appeals ruled that
although an employee is not legally required to act in a certain way for his
employees' protection, they are generally allowed to do so. However, if the act
in question had been extreme, as in the case where the employee fired a gun at a
person he thought was stealing from his company, it would have taken the
employer's property and perhaps removed the employee from the scope of his work.
Negligence Of Servant
Vicarious liability holds the master accountable if a servant commits a
negligence tort while carrying out an authorized duty.
When a servant negligently performs a duty in the course of employment and
causes harm or loss to a third party, the superior will be held accountable.
Doctrine Of Common Employment
The notion of common employment was acknowledged by English law as an exception
to the rule of the master's vicarious culpability for the servant's wrongdoings.
According to the rules, a master is not responsible for any negligent injuries
caused by one servant to another acting in the course of their shared
The essentials of the doctrine are:
- The wrongdoer and the person injured/harmed must be fellow servants, and
- At the time of harm/injury or accident, they were engaged in common
employment. In England, the doctrine has been abolished by the Law Reform
(Person Injuries) Act, 1948.
The Employer's Liability Act, (Amending Act of 1951), removed the notion of
common employment, which had previously been deemed relevant in India but had
since been restricted by other acts.
An old English tort law case called Priestley v. Fowler established the
common employment rule, sometimes known as the "fellow servant rule" in the US.
According to this theory, an employer is not responsible for harm that one
employee causes to another during the course of work. By virtue of the Law
Reform (Personal Injuries) Act of 1948, the regulation was completely repealed
in the United Kingdom.
Giving Lift To Unauthorized Third Party
The approach taken in the Twine case ruling appears to have been abandoned by
the trend of decisions made by several High Courts in India. In other words, the
master is held vicariously accountable if the driver provides a ride to an
illegal individual, according to judgements made by various High Courts.
Therefore, if the driver gives a third party an unauthorized lift while doing
his job duties, the master will also be held responsible. However, the master is
not responsible if the driver provides transportation to a third party by
adopting an unapproved detour.
Effect Of Express Prohibition
The employer could occasionally prevent his employee from performing particular
tasks. Even if the servant violates the rule, it does not follow that the action
is not within the bounds of the job. So long as the act is carried out within
the scope of employment, the master is responsible for such actions.
In the case of Limpus Vs London General Omnibus, A bus owner had issued clear
instructions not to pass other cars in a race or overtake them. In violation of
the rules, the bus driver passed another bus, causing a collision. The driver's
negligence, however, was held against the bus owner. In fact, the driver's
negligence occurred while doing his or her duties.
Vicarious liability remains a vital and established principle in the legal
systems of many countries. It holds employers accountable for the actions of
their employees if those actions occur within the scope of employment. This
principle is particularly relevant in cases of negligence, accidents, or other
wrongful acts committed by employees during the course of their work.
In the present day, the applicability of vicarious liability continues to be
significant, especially with the evolving nature of employment relationships.
With the rise of the gig economy, remote work, and complex corporate structures,
courts are often challenged to determine the boundaries of employment
relationships. The principle of vicarious liability provides a framework for
establishing accountability in situations where traditional employment models
might not apply neatly.
Furthermore, in the context of emerging technologies like artificial
intelligence and autonomous systems, questions about who bears responsibility
for actions conducted by machines are becoming more prominent. Courts and legal
systems are likely to grapple with these issues, and the concept of vicarious
liability might be instrumental in assigning responsibility in such cases.
However, it's important to note that the specifics of vicarious liability can
vary by jurisdiction and can be influenced by evolving legal interpretations and
societal changes. Therefore, the application of vicarious liability in specific
cases will continue to be shaped by ongoing legal developments and the changing
nature of employment relationships and technology. For the most current and
precise information on the topic, consulting legal professionals or updated
legal resources is advisable.
- R.K Bangia � Law Of Torts
- Ratanlal And Dhirajlal- Law Of Torts
- P.S. Pillai- Law Of Torts
- B.M Gandhi- Law Of Torts
- Recasting Vicarious Liability- By Phillip Morgan
- Basis Of Vicarious Liability- By Harold J Laski
- Vicarious Liability
- Tort Vicarious Liability- By Jc Hall
- Vicarious Liability And The Masters Indemnity- By Glanville Williams
- Swayam, Vicarious liability under torts, Legal service India (Oct. 1, 2023, 2:06 PM),
- Supra at 1.
- R.K BANGIA, Law of Torts, Pg no. 78 (24th edition, 2017).
- Lloyd v Grace, Smith & Co., (1912) A.C. 716.
- Ormrod v. Crosville Motor Services Ltd., (1953) 2 All E.R. 753.
- R.K BANGIA, Law of Torts, Pg no. 79 (24th edition, 2017).
- Hamlyn v Houston & Co., (1903) 1 K.B. 81.
- R.K BANGIA, Law of Torts, Pg no. 79 (24th edition, 2017).
- R.K BANGIA, Law of Torts, Pg no. 80 (24th edition, 2017).
- Id at 9.
- Supra, not at 9.
- Nial Osborough, The Vicarious Liability Of The Vehicle Owner, Vol. 6, No. 1 (SUMMER 1971), pp. 77-92 (16 pages).
- R.K BANGIA, Law of Torts, Pg no. 82 (24th edition, 2017).
- Id at 14.
- Mersey Docks & Harbour Board v. Coggins & Griffiths Ltd. (1947) A.C. 1.
- Hull vs. Lees, (1904) 2 KB 602.
- Barwick v. English Joint Stock Bank, (1867) L.R. 2.
- National Insurance Company, Kanpur v. Yogendra Nath, AIR. 1982 All. 385.
- Lloyd v. Grace Smith & Co., (1912) A.C. 716.
- State Bank of India v. Shyama Devi, A.I.R 1978 S.C. 1263.
- J. A. Jolowicz, Vicarious Liability. Servant's Theft The Cambridge Law Journal, Vol. 23, No. 2 (Nov., 1965), pp. 200-204 (5 pages).
- Morris v. C W Martin and Sons, Ltd, (1966) 1 Q.B. 716.
- A. P. L., Tort. Master and Servant. Scope of Employment. Implied Authority. Protection of Master's Interests. Poland v. John Parr and Sons.  1 K.B. 236 (Court of Appeal), The Cambridge Law Journal, Vol. 3, No. 1 (1927), pp. 91-93 (3 pages).
- Priestley v. Fowler,  150 ER 1030.