viacrious liablity

8/12/2019 viacrious liablity

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VICARIOUS LIABILITY

VICARIOUS LIABILITY

Generally, a person is liable for his own wrongful acts and one does not incur any liability for the

acts done by others. in certain cases, the liability, may arise on one person for the act done by

another person this is known as vicarious liability. in order to attract such liability it isnecessary that there should be a certain kind of relationship between the parties, and the

wrongful should be connected with such relationship. eg

1) liability of the principle for the tort of his agent.

2) liability of partners of each others tort.

3) liability of the master for the tort of his servant.

when an agent commits a tort in the course of performance of his duty as an agent, the liability

of the principle arises for such a wrongful act. the agent is liable because he has done the

wrongful act. the principle is liable vicariously because of the principle agent relationshipbetween the two. both can be made liable for the same wrongful act. they are considered to be

joint tortfeasors and their liability is joint and several. in such a case, the plaintiff has a choice

either to sue the principle, or the agent, or both.

similarly, when the wrongful act is done by one partner, all the other partners are vicariously

liable for the same. all the partner of the firm, i.e., the guilty partner and the others are

considered to be joint tortfeasors. their liability is also joint and several.

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VICARIOUS LIABILITY

the same rule applies to master servant relationship.

1. principle and agent

when one person authorises another to commit a tort, the liability for that will be not only of that

person who has committed it but also of that who authorized it. it is based on the general

principle qui facit per alium facit per se means the act of an agent is the act of the principle. for

any act authorized by the principle and done by the agent both of them are liable. their liability is

joint and several.

CL = Lloyd VS Grace, Smith & Co

CL = State bank of India VS Shyama Devi

CL = Tirlok Singh VS Kailash Bharti

in this case, when the owner of the motor cycle was outside the country, his younger

brother took the motor cycle without his knowledge or permission and caused the accident. it

was held that the younger brother could not be deemed to be the agent of the owner of themotor cycle and therefore could not be vicariously liable for the accident.

2. partners

the relationship as between partners is that of principle and agent. the rules of the law of agency

apply in case of their liability also. for the tort committed by any partner in the ordinary course ofthe business of the firm, all the other partners are liable therefore to the same extent as the

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VICARIOUS LIABILITY

guilty partner. the liability of each partner is joint and several

CL = Hamlyn VS Houston & Co

3. master and servant

if a servant does a wrongful act in the course of his employment, the master is liable for it. the

wrongful act of the servant is deemed to be the act of the master as well.

The doctrine of liability of the master for act of his servant is based on the maxim respondeat

superior which means let the principle be liable and it puts the master in the same position

as if he had done the act himself. it also derives validity from the maximqui facit per alium facit

per se means he who does an act through another is deemed in law to do it himself.

the liability arises even though the servant acted against the express instructions, and for nobenefit of his master.

two essentials which are to be considered are:

1) the tort was committed by the servant

2) the servant committed the tort in the course of his employment.

servant

a servant is a person employed by another to do work under the directions and control of his

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VICARIOUS LIABILITY

master. as a general rule, master is liable for the tort of his servant but he is not liable for the

tort of an independent contractor. it therefore, becomes essential to distinguish between the

two.

a servant is an agent who is subject to the control and supervisible of his employer regarding

the manner in which the work is to be done. an independent contractor is not subject to any

such control. he undertakes to do certain work and regarding the manner in which the work is to

be done. he is his own master and exercises his own discretion. an independent contractor is

one who undertakes to produce a given result, but so that in the actual execution of the work,

he is not under the order or control of the person for whom he does it, and may use his own

discretion in things not specified beforehand. for eg my car driver is my servant, whereas when I

hire a taxi, the

taxi driver is an independent contractor

the general rule that an employer is not liable for the acts of an independent contractor , but

there are exceptions.

(i) if an employer authorises the doing of an illegal act, or subsequently ratifies thesame, then he can be made liable for such an wrongful act of the independent contractor.

(ii) an employer is liable for the act of an independent contractor in cases of strict

liability.

CL = Rylands VS Fletcher.

similarly in the case of extra- hazardous work which has been entrusted to an independent

contractor, the employer is liable.

(iii) an employer is liable for the act of an independent contractor in cases of breach of

statutory duty.

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VICARIOUS LIABILITY

CL = Maganbhai VS Ishwarbhai.

(iv) the liability of the employer also arises for the dangers caused on or near thehighway.

CL = Tarry VS Ashton.

(v) if the wrong caused to the plaintiff is nuisance in the form of withdrawal of support

from the neighbours land, the defendant would be liable irrespective of the fact that the actcausing the said damage was done by an independent contractor.

Servants not under the control of the master:

There are cases where though they are servants to a master, they are not under the control of

the master in the way in which the work is to be done. For eg., the captain of the ship employedby the owner of the ship or the surgeon employed by a hospital. in such cases, the

management or the masters cannot escape liability stating that they are not under their control

on how the work is to be done.

Therefore it is essential to apply hire and fire test. ie., a person who employs

another person and is his pay master and has the power to fire (discharge) him, is the master

for the purpose of vicarious liability.

CL = Rajasthan State Road Transport Corpn vs- Kothari

Lending a servant to another person

When A lends his servant X to B, and X commits a tort against C, the question is who is to be

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considered the master, A or B and whom can C sue for the tort committed by X.

In determining such questions, the main consideration should be as to who of the two mastershas the authority to tell the servant not anly what is to be done, but the way in which he is to

work.

CL = Mersey Docks vs- Coggins & Griffiths Ltd

IN THE COURSE OF EMPLOYMENT

An Act is deemed to be done in the course of employment, if it is either:

1. a wrongful act authorized by the master, or

2. a wrongful and unauthorized mode of doing some act which is authorized by the master.

It is similar to Acts done which are illegal or acts done which are legal but by illegal means.

The reason the such liability is that, it is he who has put such an agent in his place to do that

class of acts, and he must be answerable for the manner in which the agent has conducted

himself in doing the business, which it was the act of the master to place him in.

CL = Cheshire vs- Bailey

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CL = Williams vs- Jones

CL = Century Insurance Co. vs- Northern Ireland Road Transport Board

CL = Ricketts vs- Thomas Tilling Ltd

CL = Sitaram vs- Santanuprasad

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viacrious liablity

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