THE CONCEPT OF VICARIOUS LIABILITY

Every person is liable for the acts that they commit but not for the acts of others. The term vicarious is derived from the Latin word vice, which means “in the place of”.

It is founded on the principle of ‘Qui facit per se per alium facit per se’, which means that “he who performs an act through another is deemed in law to perform it himself”. Vicarious liability is a type of liability that arises in the common law. It is when someone is held responsible for another person’s actions. So, for this to happen, both people must have a specific type of relationship, and the act must be related to the relationship. These relationships can be between a master and a servant or between a principal and an agent. A very simple example is when an employer is held liable for the unlawful work done by his/her employee. It solely depends on the relationship between the two parties. In the most common type of vicarious liability, one person should be the superior and the other should have an obligation of duty under him/her.

Winfield explains the theory of vicarious liability: The term “vicarious liability” refers to A’s potential liability to C for any harm caused by B’s negligence or another tort. It is not appropriate for A to have participated in the tort in any way, nor is it appropriate for A to have breached a legal duty owed to C. As a result, the master may be held liable for his servant’s torts while on the job. Both the agent and the principal are responsible for maintaining law and order, and their actions must be carried out within the legal framework. This type of regulation works because the principal will always try to monitor the agent as much as possible and will take all necessary precautions to avoid damage.

The enforcement of such concepts has a lot of things to be considered.

The three main essentials for the working of the concept of vicarious liability are:

  1. Both parties should have a certain type of relation.

  2. The unlawful act must be done during employment.

  3. The unlawful act has to be committed by another person


If we talk about the conceptualization of vicarious liability, we cannot miss the special relationships that are valid under it. There are majorly three types of relationships considered under vicarious liability. Namely:


1. Master and Servant - In this relationship, the servant is to provide service to the master because he was employed to do so. The servant has to perform tasks for the master to make his/her life easier.

The master commands the servant to work for him/her based on what he/she wants. This is a unique relationship as the master will also be held liable for the wrong or rather unlawful tasks done by the servant. The wrongful act should be necessarily committed under the course of employment and also should amount to a tort.


2. Principal and agent - Vicarious liability in this type of relationship signifies the imposing of responsibility on the principal for the acts done by its agent. It is a relationship where the agent is obligated to act for the benefit of the principal. In a company, the employer puts a lot of trust and faith in the employee to work for him/her.

As a result, when a fiduciary relationship exists, the law imposes specific obligations on both parties to act in the best interests of the other, which may be strengthened or amplified by a written agreement.


3. Owner and independent contractor - An independent contractor is a person who performs or works for another person (the principal) under an express or implied agreement, is not under anyone’s control, and is solely responsible for himself and his actions unless the person who hired the contractor is responsible in certain circumstances. Under The Contract Labour (Regulation and Abolition) Act, 1970, numerous liabilities have been applied to both the owner and the individual contractor. It imposes an obligation on the owner to make sure that the individual contractor is doing everything right with proper dignity and honour.

The Crown Proceedings Act, 1947, exists in England; however, there is no statutory provision in India that mentions the state’s culpability.

There was minimal discussion of the state’s obligation under Sec 65 of the Government of India Act, 1858 in pre-constitutional days, therefore it was unclear if the state was liable for a specific act or not. The condition was similar in the Government of India Act, 1935, which did not clarify the situation but recognized the situation that existed before the act’s passage.

Even though there is a mention of the government’s culpability for acts performed by its servants in the Indian Constitution (Section 300), there is still a question as to which conduct the government will be held liable for. As a result, the government’s accountability is entirely dependent on the Judges’ discretion.

Being such an important part of almost all types of laws, vicarious liability enabled a lot of researchers like Lord Chelmsford and Winfield to give justification for the applicability of this law. This is a debatable concept and needs to be addressed precisely to understand all of its aspects. Thus, every state in every country has a different take on vicarious liability all around the world. Numerous explanations have been offered for the imposition of vicarious liability:


1. Because the employer profits from his employees’ activities, he should also bear any losses that those activities produce.

2. Vicarious responsibility supports accident prevention by providing a financial incentive for an employer to encourage his staff to consider the safety of others

3. The ‘deepest pockets’ belong to the master. In some circumstances, a servant’s wealth or the knowledge that he has access to resources through insurance has had an unintentional influence on the formation of legal rules


If someone shares a Master-Servant relationship with another person, he or she may well be held answerable for the torts committed by that person. Because the servant acts on behalf of his master, tort law mandates that any wrongful act committed by the servant within the course of his job makes the master accountable. There are numerous tests for outlining the link between master and servant, and also the Court also uses its discretion to work out such a relationship supporting the facts of the case.


References-

1. Thakur, A., 2019. Vicarious Liability in case of Master-Servant Relationship in Tort Law. [online] iPleaders. Available at: https://blog.ipleaders.in/vicarious-liability-case-master-servant-relationship-tort-law/

2. India, l., 2022. Vicarious Liability in India. [online] Legalservicesindia.com. Available at: http://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html

3. Legal PaathShala. 2022. Vicarious Liability under Tort Law - Legal PaathShala. [online] Available at: https://legalpaathshala.com/vicarious-liability/



This article is written by Ananya Vaish of Symbiosis Law School, Hyderabad.

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