LAW OF TORTS: VICARIOUS LIABILITY11 min read

By- Divya Makaboina

VICARIOUS LIABILITY

Whenever a person commits an illegal act, the person is held liable for breaking the law and is thus disciplined accordingly. For example, A enters B’s property without his permission, such an act of A amounts to trespassing and he is therefore liable. This is the general rule of punishment, but in certain circumstances, a person can be held liable even though he has not done something wrong, if it is done by some other person with whom he shares a certain relationship, such as master and servant or principal and agent, and his responsibility is called vicarious responsibility in these cases.
Vicarious liability means a person’s responsibility for an act committed by another person, and the responsibility exists because of the essence of the relationship between the two. For example, A is a driver who works for B and he hits C, a pedestrian due to his incompetence in driving while driving B’s car to take him to his office. In such a scenario, since B did not drive the vehicle, he would still be responsible for the accident caused by A’s negligence. While Vicarious Liability deals with situations in which one person is responsible for the conduct of others. In the Torts domain, it is considered an exception to the general rule that a person is only responsible for his or her own actions. It is based on the concept of qui facit per se per alium facit per se, meaning, “Whoever performs an act through another is considered to do it himself in law.” Thus, in the case of vicarious liability, both the person on whose behalf they act is performed as well as the person who performs the act are responsible. Therefore, employers are vicariously responsible for the tortures performed during the period of employment by their workers

VICARIOUS LIABILITY OF MASTER FOR TORTS BY SERVANT
The master hires the servant’s services in a Master-Servant relationship, and he operates on the master’s orders, and thus a special bond exists between the two, and his master is therefore held responsible in the event of cruelty committed by the servant. There are also instances in which the servant works for his master, and so in law, the master is considered to have committed the act himself, but if the servant performs an illegal act the master is still held responsible for the same. This Master’s responsibility is based on the two following maxims
1.Qui facit per alium facit per se: – It means that if a person gets something done by another person, the person is perceived as doing an act of this kind himself.
Illustration: If A is the owner of many trucks and hires drivers to drive them for business purposes and if one of his drivers gets into an accident because of his reckless driving, he will be responsible for the accident even though A has not driven the truck himself.

  1. Respondent Superior: – This means the superior should be held accountable for his subordinate’s conduct. These two maxims played an important role in the master’s development of the vicarious liability rule.

ESSENTIALS OF VICARIOUS LIABILITY IN MASTER-SERVANT RELATIONSHIP
These essential conditions have to be followed for the vicarious liability of master to arise: –
1. The servant has committed an act which amounts to a tort.
2. Such a tortious act is committed by the servant during the course of his employment under the master.

REASONS FOR LIABILITY OF THE MASTER
There are several reasons behind holding the master liable for the acts of his servants which are: –
• An act committed by the servant shall be believed to be performed by the master through him and, thus, in the law of torture, it is presumed that if any wrong is performed by the servant, it was committed indirectly by his master and the master is held responsible for any wrongdoing.
• The master is in a better financial condition than his servant, and therefore, in the event of any harm incurred by the servant’s tortious act, the master is best qualified to pay the victim’s damages. He also makes sure, as the master is held liable, that all proper care and measures are carried out so that he can escape any liability.
• When a servant performs any act, the master shall enjoy the advantage of such act, and therefore the liability resulting from the act of the servant, the obligation should also be borne by the master. TEST FOR DETERMINING MASTER-SERVANT RELATIONSHIP
• For the determination of a Master-Servant relationship, certain tests have been developed over a long period of time.
• TRADITIONAL VIEW – CONTROL TEST
• According to this test, for the determination of an arrangement between the master and the servant, it should be shown if the master has the power not only to order what should be done, but also the nature of doing the act, and if such control exists according to this test, then the arrangement between the master and the servant exists between the two. In Collins v Hertfordshire1 HILBERY J said; “the distinction between a contract for services and a contract of service can be summarised in this way: In one case the master can order or require what is to be done, while in another case he can not only order or require what is to be done but how it shall be done.”Illustration: A is the owner of a wide area of land on which farming operations are performed and he has employed several farm employees. A, it not only shows them how to do their work but also how to do them. Here the relationship between A and his employees is defined as that of a master-servant by the test of control.

MODERN VIEW

The old control test is not applicable as an exhaustive test because in cases of work involving expertise such as a doctor operating in a hospital, the hospital owner is unable to advise the doctor how to treat a patient, and can only order him to treat patients. Therefore, some additional tests were established to assess the Master and Servant Relation. The Supreme Court in Dharangadhara Chemical Works Ltd. v State of Saurashtra laid down that the presence of the master’s right to supervise and supervise the performance of the work done by the servant is a prima facie test, that the essence of the control may differ from business to business and is, by its very essence, incapable of any specific description, that it is not appropriate for the employer to prove that he has exercised control over the work of the employee, that the check test is The English Courts have also recognized that the test of power is no longer important.

THE TEST OF WORK BEING AN INTEGRAL PART OF BUSINESS

In the case of Stevenson Jordan & Harrison Ltd. V Macdonald & Evans, an integral part of the enterprise test was applied. Here, a service contract has deemed a contract for such work which is an integral part of the business and a service contract was deemed to be a contract for such work which is not an integral part of the business.

Illustration: The programmers of an IT company are the company’s staff and there is a master-servant relationship, but if the company has employed catering services, the company would not have a master-servant relationship because of the food supply is not an important part of an IT business.

MULTIPLE TEST

This test provides that persons in a service contract are considered to be workers while the persons in the service contract are independent contractors. In the case of Ready Mixed Concrete v Minister of Pensions and National Insurance, three conditions were laid down for a contract of service.

  • The servant offers to provide the master with his expertise and practice in return for compensation or other rewards for providing some service.
  • He agrees to have such a degree of control in which to make the individual his master in the performance of his work.
  • All contractual provisions are compatible with this principle of being a service contract.

This view was also reiterated in the case of The Management of Indian Bank v. The Presiding Officer. This examination also covers other important factors used to establish the master-servant relationship, such as who owns the equipment used for the job, the employee’s salaries paid monthly or regular, and all other relevant factors.

Thus, the old view of using the Control Test is no longer the only way to decide the relationship between the master and the worker, since it has been realized that in the present complex environment, where there are a large number of variables influencing the method of deciding the relationship between the employee and the boss, it is not possible to use a single test and thus the various aspects of a case can be seen.

VICARIOUS LIABILITY OF STATE

The East India Company established vicarious state liability in 1858. But after 1950 article 300 came into force. In India, although there is no specific law dealing with the State’s vicarious liability, Article 300 of the Indian Constitution stipulates that the union of India or the State Government can sue and be prosecuted like any ordinary person. State Vicarious Liability is also known as the Government’s tortious liability. The State’s responsibility for its workers’ tortious acts is called the State’s tortious responsibility. The state shall be liable either willingly or involuntarily for acts of incompetence, wrongful execution, and omission or commission.

In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the Supreme Court classified the functions of secretary of state into two –

  • Sovereign functions
  • Non-Sovereign functions

Sovereign functions: These are the roles of the state for which the state is not responsible for the unlawful actions of its employees under any provision. For example, functions such as security operations, protection of armed forces, protection of peace and war, diplomacy are some of the sovereign functions for which the state cannot be held accountable.

Non-Sovereign Functions: These are the functions of the state which are other than the Sovereign Functions.

The root of this state responsibility began during the medieval era when the maxim Res Non-Potest Peccare, meaning-the king can do no wrong, began to lose its significance in the popular view. New industries and democracies have arisen after the 18th century that considered the actions of authorities under judicial search/study so that justice can be made to the persons who have suffered from the authorities’ illegal acts. And the obligations of the state were heightened, so in 1947 the Crown Proceedings Act was enacted. The crown was also made responsible for this action as well as was the private citizen.

EVOLUTION IN INDIA

In England, it was the Crown Proceedings Act, 1947 that made the state responsible, but in India, there was no legislation for the State’s liability. So, the East India Company developed this law well before 1858. Article 300 granted people the right to sue the Government. But this provision came into force in 1950 that is after the Constitution had been modified. According to Article 176 of the Government of India Act, 1935 and even Sections 35 and 65 of the Government of India Act, 1915 and 1858 respectively, similar provisions apply.

JUSTIFICATION FOR THE LIABILITY
There are many reasons to say that the vicarious liability of state is justified –
• The State is the one that is financially better.
• Government motivates its employee to take good care to prevent incidents which can pose a risk to the third party. This incentive is due to the Government being unable to pay some money for the employee’s conduct.
• The State obtains any advantage from the employee’s conduct. But it should maintain the damages caused by the actions of the employee.
• All actions committed by the employee during the time of employment shall be performed by the order of the State. But, in the end, the acts are the actions of the State itself.
• Because the State has the power to appoint and fire its workers, it is the responsibility of the State to review the work performed by its workers.

CONCLUSION
Under Vicarious Liability, if another person shares a Master-Servant relationship with him, a person can be held responsible for the torts committed by another person. The servant does the act on behalf of his employer, and so the torts law provides that any misconduct committed by the servant in the course of his employment is bound to make the employer responsible for it. There have been numerous measures to assess the master-servant relationship and the Court also exercises its discretion to determine such a relationship according to the facts of the case. Before 1858, there was no law concerning the Government’s responsibility for its subjects’ unjust actions. Indeed, the decision taken to draught legislation to that end is superior. Since our country is an independent, secular, and democratic republic, this legislation should be there to protect all the words listed above.

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