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Vicarious Liability And Its Justification

Generally, it is said that a person is held liable only when he performs any wrongful act. But what if a person through someone else does any wrong act by compelling him to do it, in this case, he will not be held liable as he didn't perform any wrong act himself. So just by following basic law, only the working class will always be held liable so to give proper justice the doctrine of vicarious liability is followed.

Under English law, the classic common law rule states that employers are vicariously liable for the torts of their employees that are committed during the scope of their employment. [1]That for A's wrongful act B is also held liable when certain conditions are fulfilled like master-servant relationship and if that act is done during his work or it is related to it and the master had complete control over the servant or employee.

The principle of vicarious liability in present times derives its support from the idea that parties involved with others to promote economic interests must be liable for damages suffered by third parties in the course of their employment. However, this is a subject that has received unexpectedly very less theoretical attention, although it contradicts the fundamental rule of tort law that one must be held liable just for injustices committed against others by him. And because of this contradictory nature, it has been debated several times whether the principle of vicarious liability is correct, and we anticipate this study as to whether this principle is justified or not.

  1. what does vicarious liability mean and its scope.
  2. does vicarious liability is justifiable and important case law of vicarious liability.

Vicarious Liability And Its Scope
The idea of ​​vicarious liability for torts can be traced from Roman law also, where the superior was responsible for the misconduct of his subordinates. Like in the family, the head of the family was responsible for the wrongful acts of his children or his servants.

In the words of Lord Chelmsford:
It has long been established by law that a master is liable to third persons for any injury or damage done through the negligence or un-skillfulness of a servant acting in his master's employ. The reason for this is, that every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it were the master's act, according to the maxim, Qui facit per alium facit per se.[2]

Essentials of vicarious liability:
  1. The perpetrator must be an employee (not an independent contractor) and have a specific relationship
  2. The illegal activity must have been committed in the course of employment.
  3. The employee must have committed an illegal act, which must be related to an employment relationship.[3]

Some common examples of vicarious liability
  1. Liability of the Government or concerned Authorities,
  2. Liability of partners for each other's tort,
  3. Liability of the master for the tort of his servant,
  4. Liability of the principal for the tort of his agent.[4]

Scope of vicarious liability
It is not like every time employer is liable for vicarious liability even when he has appointed any worker for 1 day. When defining relationships that give rise to Vicarious liability, the main thing is usually the power and controls that the employer has over the employee, irrespective of, for whatever time he is appointed for.

Sir William Blackstone, in his Commentaries on the Laws of England (1765-1769), noted that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied. [5] If employees work beyond the scope of the employment or the employer has no control over them then he can't be held liable.

For example:
  1. Independent contractor
    Independent contractors are self-employed people hired to perform work or services as non-employees. Employers can only decide what work they want to be done, but they have no control over how the work is done. Therefore, he has no control over it and the employer is not liable for subrogation in the event of an illegal act.

  2. Illegal acts
    If any employee does any illegal work outside his employment contract which is not required by him to do or he is not authorized to do then the employer will not be held liable for it.
So, now it is understandable that vicarious liability does not arise in every employment contract the above essential conditions should be fulfilled. And even if an employee is employed for some hours and the employer has control over him then also any wrongful act will lead to vicarious liability of the employer. But the crux is that if any employer has Control over any person and he does any wrongful act then he will be held liable.

Justification of vicarious liability
If we see the doctrine of vicarious liability from outside, we would think that it is a very unjust and discriminatory law. But if we would study the idea behind this doctrine, we will get to know that it is a very good law and at the same time also prevents various unlawful acts and exploitation of employees.

The main justification for use of vicarious liability is:
Negligent Entrustment and Control of Employee Actions
There are many modern justifications for vicarious liability. The court of acceptance relies on the fact that the employer benefits from the work of his employee, so in the same manner, he also has a liability for the misconduct of his employees. In addition, it is also fair to impose liability on the employer because the employer also has ultimate authority over his employees and he must properly delegate and assign duties to his employees and assure that these duties are assigned according to their capacity and they have the right skills to carry out their duties.

Spreading Risks
According to Lord Millet, vicarious liability is a mechanism of loss distribution. It protects the victim from the great danger created by the tortfeasor's boss. The idea behind this is the danger which is created by the firm itself should be borne by it, the employer can spread this loss to a wider pool that leaves them covered. Therefore, a worker who commits a wrongful act does not bear all the responsibilities that occur while working, and the employer must also be held responsible as the employee was following his orders. In short, these claims have less impact on employers than on employees.

Deep pockets
This is one of the main reasons for also holding employers accountable for misconduct by their employees that is deep pockets. Employers have more money, and it is believed that employers can cover claims that workers cannot afford. And this assumption stems from the deep pocket theory that not only do employers have more money, but they can also distribute these costs to other sources such as customers, shareholders, or increase product prices.

In short, if we see the main purpose and justification of using the doctrine of vicarious liability is:
  1. Distribution of the loss
  2. Compelling the risk creator to pay
  3. Compensation to victims
  4. Restraints to prevent accidents
  5. Level of violation: whether the employer is liable for negligence
  6. Intentional or criminal wrongdoing
  7. Employer's negligence

Like in the case of Anita Bhandari & Ors. v. Union of India[6], when the applicant's husband went to the bank when he entered the bank, the bank's cash drawer was also going inside, as a result, due to the obstruction by his vehicle he had a heated exchange of words with the security guard and in this fight, he shot and killed him.

Applicant argued that the bank should be held liable in the case because the bodyguard had done this while on duty, but the bank argued that they did not allow the bodyguard to fire. The court held that giving him a pistol was equivalent to allowing him to fire when he deems necessary, and the bank was liable for the fact that the guard had acted excessively in the performance of his duties and that it was still done in the course of his employment.

Now, if the doctrine of vicarious liability was not used banks would have no responsibility and they would still not stop keeping untrained or inexperienced guards which would lead to more cases like this.

Conclusion And Analysis
Therefore, through this research, it can be seen that although Vicarious liability seems unfair and unethical, it is a very important and good law because it performs the function of distributing losses and victim compensation through solvent defendants. In both cases, the victim will receive a more satisfactory compensation, as it will be provided by the parent organization rather than the individual.

It will also serve as a preventive and deterrent, motivating the employer in the future, as he will select more carefully in choosing who is authorized to act on behalf of others. This will prevent further wrongful incidents and make employers more vigilant.

As we have also seen that how courts have given various judgments depending upon the situation in the case and capacity of the employer as well as employee. What we can infer from all this is that if an employer has started anything like by assigning any work and any damage is caused to someone then the employer is also held liable because he was the one who originally started that thing or put that thing into motion.

And at the same time from the victim's perspective, the doctrine of vicarious liability focuses on maintaining an assurance to the victim as he will get equal justice in the form of proper and adequate compensation as it is borne by a financially competent person or organization and not by a single person.

  1. Tereza Prochazkova, Vicarious Liability: Justifications under English Law and Czech Law , 14 COMMON L. REV. 25 (2017
  2. Various Claimants v The Catholic Child Welfare Society & Ors [2010] EWCA Civ 1106 (26 October 2010) Beta bailii, (Nov 9, 2021, 04:24 PM)
  3. R. K Bangia, The law of torts, including compensation under the Motor Vehicles Act 98 (24 ed. 2019).
  4. R. K Bangia, The law of torts, including compensation under the Motor Vehicles Act 95-96 (24 ed. 2019).
  5. Paula Giliker, The employer/employee relationship: identifying the contract of employment, in Vicarious Liability in Tort: A Comparative Perspective 56-57 (2010).
  6. Anita Bhandari v Union of India, AIR, (2004) 1 Guj. 67 (India)

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