SHRUTIKA BHANUSHALI
IBSAR COLLEGE OF LAW , KARJAT, VII SEM 2021
VICARIOUS LIABILITY: During Anglo Norman time the idea of liability changed. Vicarious liability is very unique in justice system it is the tort which looks beyond the tort feasers liability and transfer the liability to some other.
Vicarious means
another’s and liability means debts or pecuniary obligation. So vicarious
liability means liability of a one person due to act done by other person it is
the situation where some one is held responsible for the actions or omission
done by some other. It is form of secondary liability because the primary
liability is automatically transferred. This concept is more commonly
beneficial to the victim or plaintiff to claim compensation or damages. The
doctrine of vicarious liability is applied mostly in civil cases but there’s also
some criminal cases where it was applicable. Ipc Sec 149,154,155,156,268,269
and 499 are the section which can be related or used in vicarious liability. Vicarious
liability under law of tort is an exception for the general rule ,that the
person is liable for his own acts only. But vicarious liability Based on an
legal maxim “ qui facit per se per alium facit per se , which means He who dose an act through another is deemed in
law to have done it himself. That is because in vicarious liability the person
who did the act and other who commanded him are liable.
Essentials of VICARIOUS
LIABILITY
1. There must be a relationship between them
a. Principal agent relationship
:
The
principal has powers position and control over his employees, he gives commands
to servant to do work so if agent commits any Wrongful act during his course of
employment the principal is liable for claim. The agent and principal have
fiduciary relationship this is called as relationship based on trust. Discharge
duties that have been imputed upon him by the principal. The person who is authorised
to act as such is the agent. The authorisation of the principal can be expressed.
This relationship, the principal employs the agent and authorises him to act on
his behalf and
Ex: In state bank of India V. Shyama devi .The plaintiff’s husband had handed over cheques to be deposited in his account to a friend Who was an employee of the defendant bank, No receipts of the deposits were collected and The friend misappropriated the amount. It was held by the Court that the employee was not Acting in his scope of bank employment but as a depositor’s friend when he committed the Fraud. Therefore, the defendant bank could not be held liable by vicarious liability.
b. Master
servant relationship
Master and servant are in
relationship so master is liable for the wrongful act done by servant if ; the
tort was committed by servant and importantly committed wrongful act / tort is
done in the course of his employment. When master authorise or orders /
commands particular act to be done by his / her servant. Than the employer /
Master is liable for the tort occurred by servant
c.
Partnership relationship:
liabilities of each partner is joint and several. So when the wrongful act is done by one partner all other partners
are equally ,vicariously liable
Under Partnership act 1932, following sections states the liability of
partners
Sec 4 definition of partner
Sec 6 mode of determining
existence of partnership
Sec
13 mutual right and liabilities
Sec
25 liabilities of the partner for the act of the firm
2. The wrong act must be done in the course of
employment. This is very vital essential to prove vicarious liability. Master /
employer is held liable under Vicario liability if the wrongful activity is
done during the the course of employment
For example: case of
(1) . Beard v. London omnibus co (2). Limpus v. London
omnibus co.
In beard v. London omnibus co the of the company was
having lunch and the bus conductor thought he should help the driver and to
save time he should turn the bus while doing this he mwt with an accident with
beard claimed for the damages to omnibus co, but company was not liable for the
vicarious liability because company hired driver for this job not conductor,
conductor was solely responsible for the damages occurred.
In limpus v. London omnibus co. The bus driver was
rash driving and racing while doing so he met with an accident with limpus.
Limpus claimed damages under vicarious liability from the omnibus co. Company had already given and had legal documents/
agreement agianst driver to not race and rash drive but still the employer was
liable because the damage occurred and injury resulted from an act done by the driver
in the course of his service and for his master’s purpose it was not done by
the driver for his own purpose.
3. The wrongful act must be in relationship in any
certain way:
Test for the VICARIOUS LIABILITY
Closed connection test
. Two factors which difiine this test are as follows.
(a.) The nature of employer’s role: responsibilities of employees the fields of
services / activities. This shows the scope of responsibilities to ascertain the
depth of the connection.
(b). Sufficient
connection: the connection in power /
position, role of employees and wrongful activity the connection of these two
should be sufficient.
A jargon in modern times it’s multi factorial assessment.
Salmond test provided measures of security for those
who seeking justice
When maltreatment occur during ordinary course. Salmond
introduced doctrine helds employer liable
a. A
Wrongful act authorised by master. b. A Wrongful act unauthorised by master.
Justification of the
doctrine of VICARIOUS LIABILITY.
1 “ quit facit per aliumfacit per se”. It means the
one who gives the command is equally liable as the wrong doer. For ex :
employer gives command to employee, if the employee commits any injury to
anyone or commits any wrongful activity in the duration of his employment the
employee and employer both are liable for the injury occurred.
2. Respondiate superior: It means let the “superior be liable”. , It
says the superior person holds the power position and gives the command so that
person should be held liable for the injury occurred by the person under his
power.
3. The employer, boss haves the share in success by
the efforts took by the labour he should also held liable for the loss occurred
by the labour.
4. The master
has the potential to pay the damages for the injury occurred he could help the
employees by being liable for theirs mistakes
5. People pre assume that the employer can surely pay
for the damages and can be substitute of wrongdoer as he is the employee of his
company.
Exception for VICARIOUS
LIABILITY
* Negligence: negligence is an exception for vicarious
liability if the negligence is proved beyond the course of service ,then the
master is not liable for the liability
* Unauthorised activity: If any servant applies unauthorised way to
complete his authorised work and due to it injury occurres the master cannot be
held liable.
* Criminal activity: the action in the actus rea is
physical and legal, physical activities done by employees and legal action by employer
. The ideas concept and mind of employees and employer are different while
considering the criminal activity so most of the times maaters are not liable
for the wrongful act done by the employee.
* Sovereign functions : the king can do no wrong . Its
basically the same rule applied The doctrine of sovereign immunity states that
state can claim immunity from law Because of its sovereignity . The law of
commission recommend four exceptions tithe rule of state liability. ( Defences
available)
Act of state – It mean an act of the sovereign power
directed against another
Sovereign power or the subject of another sovereign
power not owing temporary
Allegiance, in pursuance of sovereign rights.
Judicial activities : It means act done by
judicial officers and persons executing ,Warrants and orders of judicial
officers.
Political functions :
Acts done in exercise of political functions of state e.g., Foreign affairs;
diplomatic, consular and trade representation; war and peace;
Conclusion :
In
general terms vicarious liability impose liability on some one who is not
personally involved or responsible for the injury tortous wrongful activity .it
aslo poses the problems on one’s employment without the intention or any direct
relation to the wrongful activity .
When vicarious liability is proved or held on employer
; he is completely liable fo the wrongful activity done by employees . The
intention of the employer is not required or considered to assesment of
vicarious liability ; when the liability is established.
The Morrison case and Barclays case both
cases are positive delevelopment for the employees .
: WM MORRISON
SUPERMARKET PLC ( APPELLANT) V VARIOUS CLAIMANTS ( RESPONDENTS) 2020 UKSC12
ON APPEAL FROM 2018 EWCA Civ 2339
Justice : lady hale ,lord Reed ,lord Kerr , lord Hodge lord lyoyds Jones
This case stated new rules in vicarious liability the Supreme Court have provided guidance for
employers and crucial precedent in this case. It will ease the worry that many
employers may have had following the Court of Appeal judgment, that they may
face a class action and be vicariously liable for actions of an employee with a
vendetta.
Barclays Bank PLC V. Various claimants 2020 uksc 13.
Reference
1. https://www.blackgown.in/the-doctrine-of-vicarious-liability-under-the-law-of-torts/
2. https://www.lawcolumn.in/vicarious-liability-in-india/
5. http://www.bailii.org/uk/cases/UKSC/2020/12.html
6. Lawlearners ,Williams vicarious liability n 33 ,547
