By Sanjana Shikhar,
B.A.L.L.B (Hons.),
3rd semester,
Banaras Hindu University.
ANALYSIS OF VICARIOUS LIABILITY IN INDIA
INTRODUCTION
The
word vicarious comes from the Latin word vice, which means "in the place
of." This statement refers to a person's accountability for another's tort
in which he or she had no involvement.
It
can be based on the common law or on statutes. It is a legal notion that allows
an individual to be held accountable for an act that he did not conduct but was
caused by the wrongdoing of another person. In torts, a person is usually held
accountable for the wrongful act that he personally performed, and no one else
is held liable for the wrongful act committed.[1]
When
someone does anything wrong, they are considered to be liable or responsible
for it. The link of necessity that exists between the wrongdoer and the remedy
for the wrong is known as liability or responsibility. When the remedy is
civil, the party has the right to demand the maximum redress allowed by law,
and the perpetrator is obligated to comply.
However,
in circumstances of vicarious liability, a person who did not conduct the crime
may be held guilty, and his obligation may arise as a result of the wrongdoings
of another person as a result of their relationship.
In
the event of vicarious liability, there must be a pre-existing relationship
between the parties; if the parties are not related or the wrongful act is not
connected to them, the other party will not be held accountable.
REASONS FOR VICARIOUS
LIABILITY
1.
A servant is nothing more than an employee who
is directed and overseen by his boss. So the servant works for the master,
which means he does the work in the way the master wants it done. As a result,
the master must bear responsibility for the servant's acts.
2.
The master always reaps the benefits of the
servant's work, thus he must also endure the loss incurred by the servant's
activities, but only during the course of employment.
3. The master is in a
better financial position than the servant. As a result, the master is better
suited to pay for the damages created by the servant's tortious act. However,
masters are authorised to take reasonable precautions to avoid such
occurrences.[2]
There must be any of the three kinds of
relationship between them:
1.
In the case of a master-servant relationship,
a master might be held accountable for a wrongful act committed by a person
while on the job.
2.
In the case of a principal-agent relationship,
the principal might be held accountable for the wrongful act done by his agent
while on the job.
3.
Partners' liability for each other's torts- In
this instance, all partners are held accountable for any wrongful act committed
by any of the individuals. The relationship between sovereign and non-sovereign
governments, or master and servant, is referred to as vicarious liability in
administrative law.
HISTORY OF VICARIOUS LIABILITY
The term
"vicarious liability" was coined in England. The legal maxim Rex Non
Potest Peccare was in effect during the reign of an ancient monarch (The king
can do no wrong). A king
servant commits a tort while on the job for which the king is not liable under
the vicarious liability doctrine. This remedy will only be available in Torts,
not Contracts, to reclaim the land.
The king's obligation,
according to Manu, is to follow the law, and he is subject to the law in the
same way that other citizens are. In England, the crown is the exclusive owner
of all rights and obligations. Magnus and colleagues (Magnus and colleagues,
2004) Under the cover of crown jobs, the tortfeasor could not be prosecuted.
In Tobin v. R, the
court determined that if the crown was liable in tort, the king's power to do
no harm would have been rendered irrelevant. However, as the government's
obligations developed, the crown's tort liability protection became
incompatible with the needs of justice. In a number of cases, the king's court
denounced this exception, claiming that it was contrary to fairness, equality,
and good conscience.
The British parliament
approved the crown proceeding act of 1947, which removed the axiom that the
king cannot do anything wrong. In the workplace, the respondent superior
concept applies, and a king can be sued for a tortious act performed by one of
his servants. As a result, everyone is equal before the law, and no one is
superior or inferior to another.[3]
INTERPRETATION
Liability for the
actions of others is how the idea of vicarious liability is commonly referred
to. As a result, vicarious culpability exists for wrongs committed by others. A
servant is a person who is engaged by another to perform work under his
master's direction and supervision. A master is someone who hires others to undertake
work for them under his supervision and control.
The term "course
of employment" denotes that the act performed must occur during the period
of work allocated and must be the permitted work assigned to the person by the
master. In general, the master is accountable for the torts of his servant but
not for the torts of an independent contractor. Thus, it is evident that a
person's liability is for a tort committed by someone else in which the
defendant had no part.
Plaintiff, on the
other hand, can sue him under common law or under statute for wrongs committed
by others. In the case of a master-servant relationship, the master is
vicariously accountable for the wrongful act committed by his servant while on
the job. As a result, if a servant commits a wrongful conduct while on the job,
the master is liable; nevertheless, in this instance, the servant is equally
guilty.
The following are the
basic requirements for establishing a vicarious liability tort in a
master-servant relationship. It has to be done by the servant. It has to be
done in the course of employment. In the framework of principle and agent,
vicarious liability means that the principal bears responsibility for the
agent's actions. As a result, when an agent commits a tort in the course of performing
his duties as an agent, the principle is liable for the wrongful act.
Because he committed
the wrongful conduct, the agent would also be held accountable. Because of the
principal-agent connection, the principal is accountable vicariously. As a result,
they can be held accountable for the same wrongful act and be termed
co-tortfeasors. They are jointly and severally liable. The relationship between
partners is similar to that of a principal and an agent.
As a result, if one
partner commits a wrongful conduct in the ordinary course of the firm's
activity, all of the other partners are vicariously accountable. All of the
firm's partners, including the guilty and non-guilty partners, are considered
joint tortfeasors. They are also jointly and severally liable.[4]
POSITION IN INDIA
In India, the crown
took over the company's administrative activities after gaining sovereignty in
1858. For the purposes of using and being sued under the act, the Secretary of
India is declared to be a private body. The following corporate assumptions
were declared by Section 32 of the Government of India Act of 1915 (Feldman
2015):
1.
The Secretary of State Council, as a legal
entity, has the ability to sue and be sued.
2.
The Secretary of State in Council will have
all remedies if the East India Company and Government of India Company Act of
1858 is not passed.
3.
This clause was reintroduced in 1935 by
Section 176(i) of the Government of India Act.
Without regard to the
ensuing arrangement of this section, the organization may sue or be sued in the
name of the alliance of India, and commonplace governments may sue or be sued
in the name of region, and without regard to the ensuing arrangement of this
section, the organization may be liable to any arrangements made by the act of
the league or common lawmaking body approved by the prudence of forces provided
on that assembly by this demonstration, sue or be sued in the name of region. [5]
The cat was used in a
broader justification by the kingdom of sovereign control of the state, which
is not accountable for omissions. The John Stuart lawsuits in 1775 provided the
first knowledge of governmental culpability during the East India Company. The
governor in general was declared to be immune from court jurisdiction in
matters involving the termination of government personnel for the first time.
The privy council's
idea of sovereign immunity does not apply to India. After the British monarch
obtained sovereign powers, the government of India act of 1858 was passed,
which established the nation's administration. The court distinguishes between
sovereign and non-sovereign powers in acts undertaken with conduct of
enterprises that may be carried out by persons who do not have the authority in
administrative law. (Gageler and colleagues, 2017) As a result of the
non-sovereign function, any conclusions will arise. There were two separate
characters within the East India Company.
1.
As a sovereign power
2.
As a business enterprise
Only the company's
business activities and acts undertaken in the exercise of assigned sovereign
authority could be held liable. In this instance, the harm was caused to a
non-sovereign party, meaning the Dockyard's maintenance, which could be done by
any private citizen with no appointment of sovereign power, and as a result, the
Government was held accountable for the workers' torts. Any acts taken by
sovereign powers were not the responsibility of the Secretary of State.[6]
FINDINGS AND SUGGESTIONS
When one party is held
liable for the actions of another, this is known as vicarious liability. In the
subject of torts, it is considered an exception to the general rule that an
individual is only liable for his own actions. It is based on the principle of
qui facit per se per alium facit per se, which means "in law, he who
performs an act for another is believed to perform it himself." Both the
person who directs the act and the person who performs it are held accountable
in a vicarious responsibility prosecution. As a result, employers are held
vicariously liable for their employees' torts committed while on the job.
As a result, a master
is liable for his servant's conduct if they occur while the servant is on the
job. However, if someone hires an independent contractor to undertake work on
his behalf, he is typically not liable for any torts committed by the
contractor during the course of the work, unless there are exceptional
circumstances, such as those mentioned above.
The master can punish
a servant for any willful, thoughtless, or improper behaviour committed while
on the job. If a waiter injures a customer because he was disrespectful to him,
both the waiter and the hotel are liable for the waiter's carelessness. The
hotel is liable under vicarious liability.
The old Control
test is not valid as a comprehensive test in cases of employment involving
skill, such as a doctor working in a hospital, because the hospital owner
cannot advise the doctor on how to treat a patient and can only order him to
treat patients. As a result, new tests for determining the Master-Slave
Relationship have been developed.
If one person has
a Master-Servant relationship with another, that person may be held liable for
the torts committed by the other. Because the servant is acting on behalf of
his employer, tort law holds the master accountable for any unjust act
performed by the servant during the course of his employment. There have been
numerous standards for determining a master-servant connection, and the Court
also exercises its discretion to judge such a relationship depending on the
facts of the case.
[1] Vicarious Liability, available at: https://www.investopedia.com/terms/v/vicarious-liability.asp (Last visited November 3, 2021).
[2] General facts you must
know about vicarious liability, available
at: https://blog.ipleaders.in/vicarious-liability/#Reasons_for_Vicarious_Liability
(Last visited November 3, 2021).
[3] Critical Analysis of
vicarious liability, available at: https://www.legalserviceindia.com/legal/article-6118-critical-analysis-of-vicarious-liability.html
(Last visited November 3, 2021).
[4] Supra note 3.
[5] Supra note 3.
[6]Sovereignty Legal
Information Institute, available at: https://www.law.cornell.edu/wex/sovereignty#:~:text=Sovereignty%20is%20a%20political%20concept,%22sovereign%22%2C%20or%20king.&text=The%20Sovereign%20is%20the%20one,even%20as%20Blackstone%20defined%20it
(Last visited November 3, 2021).
