VICARIOUS LIABILITY OF MASTER AND SERVANT

Introduction:

The term "liability" refers to an individual's legal obligation to compensate a victim for a wrong committed by a wrongdoer. person will always be responsible for his own actions and does not take the liability of others. This liability has been imposed by the law because the person has committed a breach of duty.

For example, if A is playing very loud music and its noise is affecting B (A’s neighbor), then it is a violation of B's rights and A will be held liable for breach of duty and have to furnish compensation.



Vicarious Liability-

Generally, the person committing the breach will be held liable, but in the cases of vicarious liability, one person will be held liable for the act committed by another person because of the nature of the relations between both people. A tort comes under a civil wrong and it provides unliquidated damages to the plaintiff, and it’s upon the court's discretion to decide the damages on a case-to-case basis.

For instance, if X (driver of A) had been given the task of picking up Y from the airport and during the performance of this task he injured a pedestrian, then A would be held liable for the accident and not X, irrespective of the fact that A was not himself driving the car.


Relations in which Vicarious Liability arises

  • A Master and Servant

  • Agent and Principal

  • Partners in a Partnership Firm

  • The company and its directors

  • Independent contractors and the owner


Master-Servant Relationships and Vicarious Liability

If a servant commits a wrongful act in the course of his employment, the master under whose guidance the servant is working will be held liable. The doctrine of the liability of the master for the wrongdoing of his servant is based upon two maxims:

  1. Respondent superior—which signifies' let the principle be liable ', means that the superior will be held liable for all the acts done by his junior.

  2. Qui facit per alium facit per se-‘He who acts through another acts himself’ means that when a person gets something done by anyone else, that person will be held as doing the act himself.

For example, suppose Person X hires Person B to work as a driver for him.X was getting very late and asked A (driver) to drive fast, and due to the over speeding, they met with an accident. In this case, the master will be held liable as he was controlling the ways of the work of the driver and the driver was working under his guidance. The accident occurred in the course of the employment.



Reasons for Vicarious Liability:

Some reasons have been provided for implementing the concept of vicarious liability.

  • Due to the deep pockets of the master and his capacity to access the recourses through insurance, it makes it more favourable to make the master liable for the act and bind him for the compensation.

  • It also improves the chances of an accident as, due to the principle of vicarious liability, employers always encourage employees to take proper safety measures for others as they will have to compensate if any wrong happens.

  • If an employee works, he generates profit for his employer, so if any breach occurs during the course of employment, then the employer should be held liable.



The following are the requirements for vicarious liability in a master-servant relationship:

There are mainly two essentials to prove the liability of the master.

  • The act committed by the servant should amount to a tort.

  • Such a tortious act committed by the servant should be in the course of his employment under his master.

There are various methods through which we need to determine the master-servant relationship, as every relationship does not come under the ambit of master-servant as it also has some exceptions, which will be explained later.



Traditional Control View Test-

In order to determine the relationship, it should be seen whether the master can control the due process of work of his servant. As in some cases, the master only wants the end result but lacks the ability to control the working process, so the master has the authority to direct at any time and the servant must obey.

The case of V.J. and W. Henderson, Ltd., pointed out the following rules to determine the master-servant relationship:

  • Mater has servant selection powers.

  • Ability to set servant wages and remuneration

  • The master’s right to control the method of working of the servant

  • Having the right to dismiss or expel the servant.

For example, if A has employed some workers in his villa for various tasks like gardening, washing, etc., A does not only direct them to complete the tasks but also has the capacity to control their way of working, which means they are not independent.



Traditional and modern perspectives are not mutually exclusive.

The old traditional test is based upon the old test of relationship between the master and servant, like agricultural laborers, factory workers, and craftsmen, etc., but it becomes almost useless when applied to highly skilled jobs requiring high skills in a particular field.

The Supreme Court in the case of Dharangadhra Chemical Work Ltd v State of Saurastra determined that the right of the master to provide tasks and control the way of working is a prime facie test, and the order of control may be different depending upon the kind of business it is, and because of its nature, it may be very difficult to determine the control. That’s why it is not always necessary for the employer to prove to have employer control over the work of the employees. It should not be taken as a universal formula and there are many contracts where an employer may not be able to control the process of work of the employee.



Integral part of the business test-

The test of the integral part of business was applied in Stevenson Jordan & Harrison Ltd. V. Macdonald & Evans (1952) 1 TLR 101, in which differentiation was created as a contract of service was held to be a contract for such work which is an integral part of the business and a contract for service was held to be a contract for such work which is not an integral part of the business.

For example, if there is a factory which hires engineers for the manufacturing of auto parts, then there is a master-servant relationship between employees and employer. But if the factory owner hires the caterer, then it is not a master-servant relationship as catering is not the primary work of the firm.

Multiple Economic Reality Tests –

Lord Wright said that in a more modern, complex industry, more complicated tests have to be applied. He was in support of applying a complex test which included

  • Control

  • Ownership of equipment

  • Profitability is possible.

  • Loss possibility



In the case of Ready Mixed Concrete v Minister of Pensions and National Insurance (1968) 2 QB 497, three conditions were laid down for a contract of service. They are as follows:

  • The servant is ready to provide his skills to his master for something in return, like wages or remuneration.

  • He also agreed to the amount of control the master would exercise over him during the course of his employment.

  • The other provision is in consonance with this contract and capable of forming the contract of service.

Thus, the old method of determining the relationship is no longer the only method as the world has realised the complexities of the emerging society and it’s not as simple as it was before, and law should also be in consonance with the emerging technologies and should follow the pattern of society.



The distinction between a Servant and an Independent Contractor-

The servant and the independent contractor work under the master for the fulfilment of the task given by him, and what should be done is always decided by the master. It appears on the face that in the case of breach, the master should be held liable, but there is a difference between the two which separates them. Consequently, if the breach is committed by the servant, then the master will be held liable, but if it is committed by the independent contractor, then the master will not be held liable.

If A has a new channel, News Time, and X is a journalist employed by A, then all the tasks of X will be decided by A and in which manner he needs to perform them will be in A’s control. So, if X has committed a breach of duty, then A will be held liable.

On the contrary, if the breach has been committed by the independent contractor outside the control of the master, which means he only specified the work which needs to be completed and does not control the method of achieving the task, then the master will not be held liable.

For example, if A is the owner of the land and he instructs B an independent contractor to construct his house, here A can only specify what to do but can’t tell how to construct the house or methods to be used, so here the master will not be held liable.

There are various exceptions to the principle in which the liability of the master could be ascertained even after having the relationship of an independent contractor.



  • In cases where an employer asks for a task in order to complete it and during that task the breach occurs, the employer will be held liable.

  • The master will be held liable for the negligence of the worker in the course of his employment.

  • A wrong is committed willfully by a servant with the intention of fulfilling the task of his master.

  • The master could also be held liable for the servants' fraudulent acts.

Conclusion

The master will be held liable for the breach of duty by the servants in the course of his employment and there will exist a master-servant relationship between them. There have been several tests for determining the relationship between master and servant, and the court also applies its discretion according to the facts of the case to determine such a relationship.



This article is written by Abhinav Singh, of Marwadi University.

Recent Posts

See All

Introduction Section 262 defines one person company as meaning a corporation which has only one person as a member section 3(1)(c) provides for incorporating such a company by saying that a company ma

“Where there is a right, there is a remedy” In order to provide relief in cases relating to breach of contracts and in the cases relating to law of torts Specific Relief Act, 1877 was enacted which wa