UNIVERSITY OF MUMBAI LAW ACADEMY

SUBJECT: LAW OF TORTS

TOPIC: LIABILITY FOR WRONGS COMMITTED BY OTHERS:

APPLICABILITY OF VICARIOUS LIABILITY PRINCIPLE IN INDIA

SUBMITTED BY: SUBMITTED TO:

CHINMAY UDAY CHAVAN PROF. KEVAL UKEY
FY BBA LLB
ROLL NO. 07

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 TABLE OF CONTENTS
SR.NO. TOPIC PAGE
NO.
1. INTRODUCTION 3
 AIMS AND OBJECTIVE
 HYPOTHESIS
2. RESEARCH METHODOLOGY 3
 METHODS OF DATA COLLECTION
 SOURCES OF DATA
3. INTRODUCTION 4-5
 DEFINITION
 BACKGROUND
 PRINCIPLE
4. VICARIOUS LIABILITY BY RELATION 5-6
 PRINCIPAL-AGENT
 PARTNERS
 MASTERS SERVANT
5. PRINCIPLE OF VICARIOUS LIABILITY 6-9
 TWIN MAXIMS
 INDEPENDENT CONTRACTOR
6. EXCEPTIONS 9
 ACTS OUTSIDE THE COURSE OF
EMPLOYMENT
 HOSPITAL CASES
7. CONCLUSIONS 10
8. BIBLIOGRAPHY 11

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AIM AND OBJECTIVE

i. To discuss (in brief) the concept of vicarious liability and its principle.
ii. To study the subject matter of Test of Control and its position in India.
iii. Discuss and analyse various case law related to test of control for establishing vicarious liability

HYPOTHESIS

 In India, The Test of Control is generally not used, even in cases when it can be.
 Test of control is not an essential ingredient to hold the master’s vicarious liability.
 Test of control is confined within a limited tortuous act.

RESEARCH METHODOLOGY

This project is based upon doctrinal method of research. This project has been done after a thorough
research based upon intrinsic and extrinsic aspects of the project.

SOURCE OF DATA:

Secondary Sources

a) Books
b) Newspaper
c) Articles
e) Website

MODE OF CITATION

 The researchers have followed a uniform mode of citation throughout the course of this project.

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 INTRODUCTION: VICARIOUS LIABILITY

Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts
done by others. In certain cases, however, vicarious liability, that is the liability of one person for the act
of another person, may arise. In order that the liability of A for the act done by B can arise, it is necessary
that there should be certain kind of relationship between A and B, and the wrongful act should be, in
certain way, connected with that relationship.1

The common examples of such a liability are:

(1) Liability of the principal for the tort of his agent;

(2) Liability of partners of each other’s tort;

(3) Liability of the master for the tort of his servant.

So Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of
Torts it is considered to be an exception to the general rule that a person is liable for his own acts only.

Reasons for vicarious liability. Several reasons have been advanced as a justification for the imposition of
vicarious liability:

(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access to
resources via insurance, has in some cases had an unconscious influence on the development of
legal principles.

(2) Vicarious liability encourages accident prevention by giving an employer a financial interest in
encouraging his employees to take care for the safety of others.
(3) As the employer makes a profit from the activities of his employees, he should also bear any losses
that those activities cause.

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  The one reason for fixing his liability is historical. The personality of the servant is deemed to be
merged with the master and this principle has survived the era of slave emancipation where
servant were treated as slaves and they did not had any individual personality for identity.
 Deeper pocket theory- The second reason for fixing liability on master is based on public policy
and master is supposed to be in better position to pay for loss cause to the aggrieved party through
insurance for the tortuous act of his servant because of his deeper pocket.

 The third reason is expressed in the twin maxim of “respondiate superior” which means let the
master be liable and “Qui facit per alium facit per se” which means that the act of the agent is the
act of the principle. Vicarious liability is based upon these two principles as mentioned above.

VICARIOUS LIABILITY BY RELATION

In Vicarious liability, in order to make A liable or the tortuous act of B, then it is necessary that there
should be a certain kind of relationship between A and B, and the tortious act should be a certain way
connected with that relationship. The common examples are-
1. Principle and Agent
Where one person authorizes another to commit a tort, the liability for that will be not only of that person
who has committed it but also of that who authorized it.2 It is based on the general principle “ Qui facit
per alium facit per se” which means that the act of the agent is the act of the principle.
The authority to do the act may be express or implied3. So, when an agent commit a tortious act in the
ordinary course of employment, then principle will be made liable for the same.

In Lloyd v. Grace, Smith $ co. , Mrs. Llyod who owned two cottages was not satisfied with the income
therefrom, approached the office of defendant , a firm of solicitors and she was advised to sell the two
cottages and invest money in better way. The agent of the company played a fraud and made her sign
documents which was in really a gift deed in the name of the agent himself. He then disposed of the
property and misappropriated the proceeds. He had acted solely for his personal benefit without the
knowledge of the principle. It was held that since the agent was acting in the course of his apparent
authority, the principle was liable for the fraud.

2. Partners

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The relationship as between partners is that of principle and agent. The rules of law of agency apply in
case of their liability also. For the tort committed by any partner in the ordinary course of business, all the
other partners are liable to the same extent as the guilty partner.4
In Hamlyn v. Houston & CO.,One of the two partners of the defendant’s firm, acting within the general
scope of his authority as a partner, bribed the plaintiff’s cleark and induced him to make a breach of
contract with his employer by disclosing secreats relating to his employer’s business. It was held that both
the partners of the firm were made liable for the wrongful act committed by only of the partner.
3. Master and Servant
The common law principle states that a person is made liable for the tortious act of his servant but the
question is why a master should be made liable for the wrongful act of his servant during the course of
employment. The principle of master’s liability for the wrongful act of his servant is based on following
reason-

 The one reason for fixing his liability is historical. The personality of the servant is deemed to be
merged with the master and this principle has survived the era of slave emancipation where
servant were treated as slaves and they did not had any individual personality for identity.
 Deeper pocket theory- The second reason for fixing liability on master is based on public policy
and master is supposed to be in better position to pay for loss cause to the aggrieved party through
insurance for the tortuous act of his servant because of his deeper pocket.

 The third reason is expressed in the twin maxim of “respondiate superior” which means let the
master be liable and “Qui facit per alium facit per se” which means that the act of the agent is the
act of the principle. Consequently the act of the servant becomes the act of the master.

In the words of Lord Chelmsford: “It has long been established by law that a master is liable to third
persons for any injury or damage done through the negligence or unskilfulness of a servant acting in his
master’s employ. The reason of this is, that every act which is done by servant in the course of his duty is
regarded as done by his master’s order, and, consequently it is the same as if it were master’s own act”.

PRINCIPLE OF VICARIOUS LIABILITY

So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
Who is the servant

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A servant is a person employed by another to do work under the directions and control of his master.
As a general rule, master is liable for the tort committed by his servant but he is not liable for an
independent contractor.
Servant And Independent Contractor
A servant and independent contractor are both employed to do some work of the employer but there is a
difference in the legal relationship which the employer has with them. A servant is engaged under a
contract of services whereas an independent contractor is engaged under a contract for services. The
liability of the employer for the wrongs committed by his servant is more onerous than his liability in
respect of wrongs committed by an independent contractor. If a servant does a wrongful act in the course
of his employment, the master is liable for it. The servant, of course, is also liable. The wrongful act of
the servant is deemed to be the act of the master as well. Since for the wrong done by the servant, the
master can also be made liable vicariously, the plaintiff has a choice to bring an action against either or
both of them. Their liability is joint and several as they are considered to be joint tortfeasors. The reason
for the maxim respondeat superior seems to be the better position of the master to meet the claim
because of his larger pocket and also ability to pass on the burden of liability through insurance. The
liability arises even though the servant acted against the express instruction, and for no benefit of his
master.5

For the liability of the master to arise, the following two essentials are to be present:
(1) The tort was committed by the servant.
(2) The servant committed the tort in the course of his employment.

A servant is a person employed by another to do work under the direction and control of his master. As a
general rule, master is liable for the tort of his servant but he is not liable for the tort of an independent
contractor. It, therefore, becomes essential to distinguish between the two. Since for the wrongful act of
servant master is made liable vicariously, the plaintiff has a choice to bring action against either or both of
them.
There liability is joint and several as they are considered to be joint tortfeasor.
A servant is an agent who is subject to the control and supervision of his employer regarding the manner
in which the work is to be done. An independent contractor is not subject to any such control. He
undertakes to do certain work and regarding the manner in which the work is to be done. He is his own
master and exercises his own discretion. And independent contractor is one “who undertakes to produce a

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given result, but so that in the actual exclusion of the work, he is not under the order or control of the
person for whom he does it, and may use his own discretion in things not specified beforehand.”6
Example:
My car driver is my servant. If he negligently knocks down X, I will be liable for that. But if he hire a taxi
for going to railway station and a taxi driver negligently hits X, I will not be liable towards X because the
driver is not my servant but only an independent contractor. The taxi driver alone will be liable for that.

EXCEPTION TO INDEPENDENT CONTRACTOR

In Morgan v. Incorporated Central Council,7 the plaintiff, while he was on a lawful visit to defendant
premises, fell down from an open lift shaft and got injured. The defendant had entrusted the job of
keeping the lift safe and in proper way to certain independent contractors. It was held that for this
negligence on the part of the independent contractors, the defendant could not be made liable.8
There are many cases of accidents caused by mechanics, repairers or owner of workshops during test
drive of the vehicles entrusted to them by the owner of the vehicles for repairs.
In B. Govindrajulu V. M.L.A. Govindraja Mudaliar,9 after a motor lorry was entrusted to the owner of
workshop for repair, an employee of the workshop while testing met with an accident. In this case the
owner of the lorry was not made liable because the owner of the workshop was an independent
contractor.


 The servant is employed under contract of service whereas independent contractor is employed for
the service.
In Alcock v Wraith, NEILL LJ stated: where someone employs an independent contractor to do work
on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the
course of the execution of the work.
The main exceptions to the principle fall into the following categories:

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(1) Cases where the employer is under some statutory duty which he cannot delegate.
(2) Cases involving the withdrawal of support from neighbouring land.
(3) Cases involving the escape of fire.
(4) Cases involving the escape of substances, such as explosives, which have been brought on the land
and which are likely to do damage if they escape; liability will attach under the rule in Rylands v
Fletcher.
(5) Cases involving operations on the highways which may cause danger to persons using the highway.
(6) Cases involving non-delegable duties of an employer for safety of his employees.

(7) Cases involving extra-hazardous acts.

In case of Rylands v. Fletcher, the employer could not escape the liability for the damages caused to the
plaintiff, when the escape of the water from a reservoir got which was constructed by the defendant from
an independent contractor, flooded the plaintiff’s coalmine.

EXCEPTIONS

ACT OUTSIDE THE COURSE OF EMPLOYMENT

Though master has control over the manners in which work is to be done but in certain cases when a
servant does any act which is not in the course of master’s business, the same is deemed to be outside the
course of employment.

In Beard v. London General Omnibus Co.,10 at the end of the journey, the driver of the bus went to take
dinner. During the temporary absence of the driver, the conductor drove the bus for next journey without
the knowledge of driver and met with an accident. In this case master was not made liable because the act
done by the conductor was outside the course of employment.

TRANSFER OF SERVANT WITH CONTROL

When there is only transfer of service and not the servant as seen above in Mersey Docks and Harbour
Board v Coggins and Griffith Ltd. Then the master can be made liable but in certain cases where there
is service is transferred with the servant and its effective control too, then master cannot be made liable
and in that case he hierer who took that effective control will be made liable.

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In case of Rajasthan State Road Transport Co. v. K.N. Kothari,11 it has been held by the Supreme Court
that the transfer of effective control over servant, would make the transferee of the vehicle liable for
vicarious liability. In this case, the RSRTC hired a bus and a driver for running a bus on a specified route.
The RSRTC engaged a conductor, who managed the bus and also exercise control over driver. It was held
that for an accident cause by the driver hirer RSRTC was made liable vicariously and not the original
owner who transferred such control.
HOSPITAL CASES
In some hospital cases also, in certain circumstance the master are not made liable for the negligence of
staff surgeon because they lack power of control over them.

CONCLUSION

Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts
it is considered to be an exception to the general rule that a person is liable for his own acts only. It is
based on the principle of qui facit per se per alium facit per se, which means, “He who does an act
through another is deemed in law to do it himself”. So in a case of vicarious liability both the person at
whose behest the act is done as well as the person who does the act are liable. Thus, Employers are
vicariously liable for the torts of their employees that are committed during the course of employment. So
a master is liable for the acts of his servant if the act is done in the course of employment.

The servant and independent contractor are under contract of service and contract for service respectively.
The traditional view to distinguish between the two was the control test exclusively. But in modern
scenario this is not sufficient test as there is no single test. The significant outcome can be achieved only
by balancing different factors with the help of different tests like.

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 BIBLIOGRAPHY

BOOKS REFERRED
 LAW OF TORTS by R.K. Bangia
 Michael A. Jones, Textbook on Torts
 THE LAW OF TORTS by Ramaswamy Iyer
 THE LAW OF TORTS by Ratanalal and Dhirajlal

WEBSITES REFERRED
 www.lawteacher.net/Tort-law

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 www.legalservicesindia.com/article/vicarious-liability-in-india-1634-1.htn
 www.lawmentor.co.uk/home/resources/essay-on-vicarious-liability.html

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