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LIABILITY FOR WRONGS COMMITTED BY OTHERS[1]

Table of Contents

(Vicarious Liability) Or (Constructive Liability)

QUESTION BANK

Q.1. What is ‘Vicarious Liability? Is the master liable to the third person for the torts committed by his servant?

Q.2. Discuss the principle of vicarious Liability fully.

Q.3. Discuss the nature of vicarious Liability.

Q.4. State and explain the principle laid down in the State of Rajasthan V/s. Vidyawati

Q.5. Discuss the Liability of a master for the tort of his servant.

Q.6. What is vicarious Liability? Explain the principles of vicarious Liability.

SYNOPSIS

I) Vicarious Liability / Constrictive Liability:-
II) Principles On Which Vicarious Liability Is Based: –
‘Qui facit per alium facit per se’ –
‘Respondent superior’-
Public policy –

III) Modes Of Vicarious Liability: –

A) Liability by ratification: –
B) Liability arises out of a special relationship:-
Master and servant: –
a) Liability of master to third person for the wrongful act of his servant.

Vicarious Liability of Government for Tort committed by its servants:-

b) Liability of servant for his wrongful act to third person:-
c) Liability of a master to the act of one servant to another servant:- (Doctrine of common employment).
d) Servant’s Liability to master:-

2) Owner and Independent Contractor:-

The distinction between independent contractor and servant:-

Rule as to independent contractor’s Liability:-

Exceptions: –

a) Employer’s control: –
b) Wrongful act: –
c) Legal or statutory duty:-
d) Dangerous Work:-

3) Principal and Agent: ‑

4) Company and its Directors: –

Liability of Company:-

Personal Liability of Directors:

5) Firm and Partner: –

6) Guardian and Ward:-

C) Liability for abetment:-

I) Vicarious Liability / Constrictive Liability:-

As Salmond observes, “In general, a person is responsible only for his own acts, but there are some exceptional cases in which the law imposes on him vicarious responsibility for the acts of others, however blameless himself may be.”

It means that every person is responsible for his own torts. However, there are certain exceptional circumstances in which Liability is imposed upon a person for the wrongs committed by others. Such Liability is called “vicarious or constrictive liability.”

II) Principles On Which Vicarious Liability is Based: –

1) ‘Qui facit per alium facit per se[2]’ –

The maxim means ‘he who acts through another, does it himself. In other words, in the law, it is deemed that he who acts through others does the act himself. Therefore, the person is answerable for the consequence thereof.

2) ‘Respondent superior[3]‘-

This maxim means, ‘Let the superior be responsible in such cases not only he who obeys but also he who commands become equally liable.

Public policy[4] –

According to the modern social view, the concept of public policy serves a social purpose; for example, the master employing a servant is better able to make good any damage caused to others by the servant within the course of his employment.

III) Modes Of Vicarious Liability: –

The Liability for others’ wrongful acts or omissions may arise in one of the following three ways.

A) Liability by ratification[5]: –

Any person authorising the commission of a tort by another is responsible for that tort as if he had committed it himself.

Illustration

An act was done by A, not for himself, but for B, without the authority of B, If B subsequently ratifies (assents) such act of A. B becomes liable for any tort committed by A in doing that act for B.

This Liability is based on the maxim- Qui facit per alium facit per se, i.e. he who does an act through others does it himself.

B) Liability arises out of a special relationship[6]:-

Vicarious Liability may arise where the doer of the act and the person sought to be held liable are related to each other in the following relations-

1] Master and servant: –

The person is a servant of others if subjected to the master’s control. Control signifies the authority to tell what is to be done and how it is to be done. Based on this control theory in various cases, it has been held that a hospital authority could not be vicariously liable for the torts committed by its medical and nursing staff.

To hold the master liable for the tort of his servant, the following conditions should be fulfilled:-

The servant commits a tort.
Within the course of his service.

Relations between the master and servant give rise to the following four kinds of liabilities:-

a) Liability of master to third person for the wrongful act of his servant-

In Ramaswammy V/s.Union Motor Services[7]

Facts: – The defendant was running buses in the city of Madras. While the driver and conductor were on duty, just as fun, they changed their places. So, while driving, the bus conductor met with an accident with the plaintiff’s car. The car got damaged.

Court Held: – Union Motor Services Company, i.e., the master is liable for the wrongful act committed by the employee during his course of employment.

Vicarious Liability of Government for Tort committed by its servants:-

The question of the Government’s Liability for the tortious act of its servant arose first in the State of Rajasthan V/s. Vidyawati[8]

Facts: In this case, the claim for damages was made by descendants of a person who died in an accident caused by the negligence of a jeep driver. The Government maintained the jeep for the official use of the collector of Udaipur. The accident occurred while the jeep was being brought back from the workshop after repairs.

Held:- The Supreme Court, while upholding the view of the Rajasthan High Court, held that the Government is liable vicariously for the tortious act of its servants.

In Menam Ongbi Bina Devi v. The State of Manipur[9]

Laws (Mani) 2014-12-5

The Manipur High Court referred the Supreme Court’s decision of Chairman, Railway Board v. Chendrima Das[10] , in which four Railway employees raped a Bangladeshi woman in a railway compartment. She asked for compensation on the grounds of the government’s vicarious Liability for its servants.

Supreme Court awarded Rs. 10 lakh compensation and held that the railway department is vicariously liable to pay the compensation for the wrongful act of its servants.

b) Liability of servant for his wrongful act to third person:-

A servant is liable for doing a wrongful act during his services. In such a case, the injured party will have his remedy against both the master and the servant or either of them at his option.

c) Liability of a master to the act of one servant to another servant:-

(Doctrine of common employment)

If the wrong is committed by one servant to another in the course of employment, an earlier rule was that the master is not liable.

In Paristlay V/s. Fowler[11]

Facts: – Plaintiff alleged that he was directed by the defendant, his employer, to go in a Truck driven by another servant. The truck is in unsafe and overloaded condition and broke down. The plaintiff sustained injuries.

Held: The Master is not liable because the servant must be deemed to take the risk of the job while accepting the service, and these risks include the fault of his fellow servants.

However, this rule of common employment has not been applicable since the Law Reforms (Personal Injuries) Act of 1948. Now, instead of an employer, more protection is given to employees. Now, the master is liable for the wrongful act of one servant to another.

d) Servant’s Liability to master:-

A servant is liable to the master for the consequences of his torts. If the damages have been recovered from the master because of the servant’s negligence in doing the master’s work. The master can recover such damages from the servant

2) Owner and Independent Contractor[12]:-

An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result (1) Contractor of house. (2) Lawyer, etc.

The distinction between independent contractor and servant:-

The main difference between an independent contractor and a servant is that -In the actual execution of the independent work, the contractor is not under the order or control of the person for whom he does it but uses his own discretion. In contrast, a servant is an agent who works under the supervision, control and direction of his employer.

Rule as to independent contractor’s Liability:-

If an independent contractor is employed to do some work and, in the course of work, he or his servant commits any tort, the employer or owner is not liable. In such cases, the Liability is fixed on such an independent contractor.

Exceptions: –

It has been laid out that there are exceptions to the general rule that an employer is not liable for the torts of his independent contractor. They are as follows-

a) Employer’s control: –

Where the employer retains control over the contractor, he personally interferes and makes himself a party to the act that causes the damage.

b) Wrongful act: –

Where the thing contracted is itself wrongful. The employer or owner is responsible for the wrong done by the contractor or his servants and is liable to the third person who sustained damage from the wrongdoing, e.g. if a man employs a contractor to build a house to darken another person’s windows (i.e. the elementary right of light and air); is itself a wrongful act.

c) Legal or statutory duty[13]:-

Where a legal or statutory duty is imposed on the employer, he is liable for any injury that arises to the other as a consequence of the duty having been negligently performed by the contractor. For example, the owner is liable for any injured employee under the Workmen’s Compensation Act 1923.

d) Dangerous Work:-

Where the work contracted to be done is likely to cause danger to others, the employer has a duty to take all reasonable precautions against such danger. If the contractor does not take these precautions, he is liable for damage caused to others.

For example, Tree in A’s premises is being tried to be severed by ‘D’, an independent contractor. But there is a danger of its likeliness of falling either on ‘B’ or ‘C’s’ house. If D takes proper care and caution while cutting the tree, it falls on ‘B’s house. ‘A’ is liable. In such a case, ‘D’, an independent contractor, a woodcutter, is not liable.

3) Principal and Agent[14]: ‑

An act of the end will make the principal responsible so long as the end does the act –

within the scope of his authority, or
under the actual control of the principal.

The principal’s liability for the wrongs of his agent is joint and several with the agent. The injured may sue either or both of them.

4) Company and its Directors: –

Liability of Company:-

Companies are liable for the torts committed by their servants in the course of their employment. But the wrongful act complained of should be intra-vires (i.e. within the power of the Company) and not ultra-vires (i.e. outside the power of the Company) and should have been performed for the Company by the Directors.

The relationship is also treated as principal and agent.

Personal Liability of Directors:

Directors are personally responsible for any torts committed by themselves (or directed by others to commit them), although it may be for the benefit of the Company.

5) Firm and Partner[15]: –

The relations of partners (inter-se) among themselves are that of principal and agent, and therefore, each partner is liable for the actions of his fellow partners.

Both under English and Indian law, a firm (all partners collectively) is liable for torts committed by any partner in the ordinary course of the business of a firm.

6) Guardian and Ward[16]:-

The guardian is not personally liable for a tort committed by a minor (e.g., ward), but He can sue for personal injuries to a minor under his charge.

C) Liability for abetment[17]:-

In action for wrong, those who abet the tortuous acts are equally liable to those who commit the wrong.

A person who procures the act of another is legally responsible for its consequences:-

if he knowingly and for his own ends induces another person to commit an actionable wrong or
when the act induced is within the right of the immediate actor and therefore not wrongful so far as the actor is concerned but is detrimental to the third party, and the inducer procures his object by using illegal means directed against that third party.

For example, if ‘A’ induces ‘B’ to break his contract with ‘C’, it would be unlawful interference in ‘C’ s contractual right. It would detriment C’s interest, though it is not wrongful for B to leave C’s service.

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[1] दुसयाच्या अपकृत्याबद्दल जबाबदारी [ दूसरे के अत्याचार की जिम्मेदारी]

[2] जो दुसयाकडून अपकृत्य करुन घेतो त्याने ते स्वतःच केल्याप्रमाणे असते [ जो दूसरे से अधर्म लेता है, वह ऐसा है जैसे उसने स्वयं किया है]

[3] उच्चाधिकारी जबाबदार [ उच्च अधिकारी जिम्मेदार]

[4] जनकल्याण [ सार्वजनिक कल्याण]

[5] मागाहून संमती दिल्याने [ बाद मे सहमति देणा]

[6] विषिश्ट संबंधामुळे येणारी जबाबदारी [विशेष संबंध से उत्पन्न दायित्व]

[7] 1955

[8] 1963

[9] Decided in Dec 2014

[10] (2000) 2 SCC 465

[11] 1837

[12] स्वतंत्र कंत्राटदार [स्वतंत्र ठेकेदार]

[13] कयदयाने घालून दिलेले कृत्य [ कानून द्वारा निर्धारित अधिनियम]

[14] मु;य व्यक्ती व त्याचा प्रतिनिधी [ प्राचार्य और उनके प्रतिनिधि]

[15] भागीदारी व भागीदार [ साझेदारी और भागीदार]

[15] पालक व पाल्य [ माता-पिता और बच्चे]

[15] चिथावणी देणाराची जबाबदारी [ उत्तेजक लेखक का दायित्व]