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An Overview of "Vicarious Liability"


Authored By- Amit Patel

Keywords- Wagering relation, Course of employment, sovereign immunity, master and servant


Abstract-

Vicarious liability applies in a certain relationship where one person has command over other and in return pays wages to him. This article discusses the scope and relations on which this doctrine applies. There is a certain maxim like Qui facit per alium facit per se which plays an important role in understanding the concept. This article also discusses about the implied command and liability of the state for the acts of its employees.

Introduction

In normal instances when a person commits a tort or violates a law, he must be held liable for his negligent act or wrongdoing. Whereas in another instance when a person commits a wrong or violates a law rather than committing the wrong and another person is made liable for his negligent act or wrongdoing because of a certain relation that they have, such as, master and servant relationship, principal and agent relationship. It is a relationship where the servant agrees to provide his skill and work to the master for performing some service in exchange for wages or some other consideration. The servant should be under the control of the master. When these conditions fulfill the vicarious liability arises.


Scope and limitation of vicarious liability

Vicarious liability can be defined as, “Liability for the tort of another even though the person who is held responsible may not have done anything wrong.”The essential condition to apply vicarious liability is that there should exist, in any form, a relationship between the person who has committed or is being accused of the wrong in respect to the other person.


There are certain relationships in which vicarious liability arises-

1. Master and Servant.

2. Partners in a Partnership Firm.

3. Principal and Agent.

4. Company and its Directors.

5. Owner and Independent Contractor


Applicability of vicarious liability in Master and Servant relationship

In the case of Ready Mixed Concrete v Minister of Pensions and National Insurance[1], it was held that whenever the servant agrees to provide his skill and work to the master for performing some service in exchange for wages or some other consideration. He agrees to be subjected to such a degree of control to make the person his master in the performance of his work. When these conditions are fulfilled in master and servant relationship the vicarious liability arises.


These two maxims will help us in understanding the applicability-


1.Qui facit per alium facit per se: –whenever a person gets something done by the other person then the person is viewed to be doing such an act himself.

Illustration: If a master tells its servant to deliver certain goods to a city named X and while doing so the servant commits an accident. Here, the vicarious liability will arise and the master will be held liable for the act committed by his servant.


2. Respondent Superior: – It means that the superior should be held responsible for the acts done by his subordinate.


Essentials of Vicarious Liability

· There must be a relationship of a certain kind – It can be of any kind, as discussed above.

· The servant should commit an act that should amount to tort.

· The tort must be committed within the course of employment.


Development of the doctrine

The law of vicarious liability was developed under the English law and in the starting; it was only applied in the civil laws, whereas, now in some exceptional instances it is also applied in criminal law. This doctrine is dynamic and is changing with time and is being applied in many different cases.


In the year of 1700, Sir John Holt in the case of Herne v. Nichols[2] created a rule where the employer will not only be liable for his express commands which he has informe to his employer but will also be state him liable for the implied command.

Now, as per the Indian law, it is applied under many provisions such as Section 154[3] of IPC, can make the occupier or the owner of that land liable if any wrong is done on their land and they do not inform the public authorities. Section 155[4] also deals with the vicarious liability of a person or owner, if its agents or servant are present on the property and do not stop the illegal activity.


If in the cases of principal and agent, and master and servant, the death of anyone of the parties can put an end to the relationship that they share. After the death, the contract is dissolved, unless there be a stipulation express or implied to the contrary in the contract.[5]


Liability of State for Acts of its Employees

It started with the English law where it was the rule that the state cannot be held liable for the cats or wrongs committed by its servants. This rule came from a maxim “Rex Non Potest Pecarre” which means that the king can do no wrong.

The state is saved by sovereign immunity. This states that for the acts done under the sovereign power of the state, the state cannot be held liable. An Act is done in the course of employment but not in connection with sovereign powers of the State, State like any other employer is vicariously liable.[6] If the act done by the employees of the state is not in the course of employment or if it is in the course of employment but not in connection with the sovereign power the state can be held liable.

Conclusion

Vicarious liability is a doctrine where one person is liable for the acts committed by another person. Such that they should share a certain relation where one should remain at the superior position whereas others should remain at a subordinate position in exchange for wages. The person at a superior position is made liable for the act done by his subordinate under the course of employment. This law is changing with time and is adapting to the new types of cases coming nowadays.

[1]Ready Mixed Concrete v. Minister of Pensions and National Insurance, (1968) 2 QB 497. [2]Herne v. Nichols,[1700] 1 Salkeld 289. [3]IPC, 1860, NO. 45, § 154. [4]IPC, 1860, NO. 45, § 155. [5] Farrow v. Wiltonj, L.R. 4 C.P. 744. [6]State of Rajasthan v. Mst. Vidyawati, AIR 1962 SC 933.


References-

1. http://www.duhaime.org/LegalDictionary/V/VicariousLiability.aspx

2. https://www.hillyermckeown.co.uk/vicarious-liability-development/

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