Course of Employment
Chapter Fifty-Five
Syllabus topic 3.1, "Vicarious Liability: Basis, scope, Justification, Different types."
Pages 223 to 226 of 434
In one line
A master answers for what his servant does wrongly while doing the master's work, and not for what the servant does on his own account.
In the wording a student can write in an exam: an act is done in the course of employment where it is a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master; the master is therefore liable for careless, mistaken, excessive or even forbidden ways of doing the job, and is not liable where the servant has stepped outside the employment altogether and is on a frolic of his own.
The formula, and where it comes from
Facts. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, decided on 8 February 1966. The owner of a taxi entrusted it to a driver who collected the fares and accounted to him. The cleaner was trained to drive by that driver and, while taking a driving test with the driver absent from the vehicle, injured the respondent.
Held. The owner was not liable. The presumption that a vehicle is driven on the master's business by his authorised servant was rebutted: the owner had not employed or permitted the cleaner to drive, had not asked him to take a test, and had not authorised the driver to employ strangers, and the driver was not present to control the vehicle on the owner's behalf. For the master's liability to arise the act must be a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master.
Why it matters here. It is the formula, stated by the Supreme Court, and every situation below is an application of it.
The situations, in the order examiners set them
1. A careless way of doing the job. A driver who drives too fast on his round is doing authorised work in an unauthorised way. The master is liable.
2. A mistaken way of doing the job. A servant who acts on an honest mistake while doing his work, for example a railway porter who pulls a passenger off a moving train believing him to be on the wrong one, is still doing the work. The master is liable.
3. An excessive way of doing the job. A servant who uses more force than the job requires, for example a bouncer who ejects a customer violently, is still doing the job. The master is liable.
4. A forbidden way of doing the job. A prohibition on the mode of doing the work does not take the act outside the employment; a prohibition on the sphere of the work does. A driver told not to race is still employed to drive; a driver told never to carry passengers who carries one may still be within the employment if the carriage was for the master's purposes.
Course of Employment
5. A frolic of his own. Where the servant abandons the master's business for his own, the master is not liable. A detour on the master's business is not a frolic; a journey undertaken purely for the servant's own ends is.
6. Delegation by the servant. If the servant hands the job to somebody else without authority, the master is not liable unless the servant remained in control, which is where Sitaram Motilal Kalal and State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, part company: in the second case the appointed driver sat beside the man at the wheel and had allowed him to drive with his knowledge and consent, and the State was liable.
7. A criminal act. A servant's theft or fraud is within the employment where it was committed in the course of doing what he was employed to do, particularly where the employment gave him the opportunity and the master held him out as trustworthy.
The Indian direction of travel
Both Supreme Court cases in this chapter point the same way. In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, a company was held liable although its manager had taken a passenger without authority, and the Court noted that the recent trend is to make the master liable for acts which do not strictly fall within the course of employment as ordinarily understood. Kanchanmala repeats that in terms. So an Indian answer should say that the connection with the employment is construed generously.
A worked example
A transport company employs Farid to drive a lorry from Pune to Surat.
He speeds and hits a car. Course of employment: a wrongful mode of doing authorised work.
He takes a fifteen kilometre detour to eat and hits a car there. Still in the course: a deviation reasonably incidental to the journey.
He drives 200 kilometres to Nashik to visit his family and hits a car there. A frolic of his own; the company is not liable.
He lets a friend drive while he sleeps in the cabin. On Sitaram Motilal Kalal the company escapes only if the delegation was outside his authority and he was not in control; on Kanchanmala the fact that he was in the vehicle points the other way.
He is told never to give lifts and gives one; the passenger is hurt. A prohibition on the mode of doing the work, so the company may still be liable, particularly if the lift served the company's purposes in some way.
Course of Employment
He steals goods he was carrying. Within the employment, because the employment gave him the goods and the opportunity, and the owner entrusted them to the company.
What it does NOT mean
It does not depend on authority for the wrongful act itself. No master authorises negligence; the question is whether the job was authorised.
A prohibition does not automatically end the employment. Only a prohibition limiting the sphere of the work does.
A deviation is not a frolic. The scale and purpose of the departure decide.
A crime is not automatically outside the employment. Theft and fraud in the course of the work may be within it.
Quick revision
- The formula: a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing an authorised act.
- Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, states it and rebuts the presumption about vehicles on the facts.
- Careless, mistaken, excessive and forbidden modes of doing the job are all within the employment.
- A prohibition on the mode does not exclude liability; a prohibition on the sphere does.
- A frolic of the servant's own is outside; a deviation on the master's business is not.
- Unauthorised delegation takes the act outside unless the servant remained in control.
- State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, and Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735: the connection with employment is construed generously in India.
- Theft or fraud by a servant may be within the employment where the work gave him the opportunity.
Test yourself
1. When is an act done in the course of employment? When it is either a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master. That is the formula stated by the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697. It follows that the master is liable where the servant does the job carelessly, mistakenly, excessively, or even in a way expressly forbidden, provided the prohibition limited the manner of the work rather than its sphere. He is not liable where the servant has abandoned the work for purposes of his own, which is a frolic of his own, though a deviation reasonably incidental to the master's business remains within the employment. Unauthorised delegation to another takes the act outside the employment unless the servant remained in control of the work.
2. Does an express prohibition by the master end his liability? Not by itself. The law distinguishes between a prohibition that limits the sphere of the employment and one that limits the mode of doing the work. A servant told not to drive at all who drives is outside his employment; a servant told not to drive fast who drives fast is doing the authorised work in a forbidden manner and the master remains liable. The reason is that a master cannot escape responsibility for the risks his enterprise creates by issuing instructions, since a rule to the contrary would allow every employer to immunise himself with a notice board. The question in each case is what the servant was employed to do, not what he was told about how to do it.
Course of Employment
3. "The trend in India is to construe the course of employment generously." Discuss. The proposition is supported by two Supreme Court decisions. In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, a company's manager took a passenger in the company's car without authority, and the Court, noting that the recent trend is to make the master liable for acts which do not strictly fall within the course of employment as ordinarily understood, held the company vicariously liable. In State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, a government jeep was driven by an employee who was not its appointed driver, with the driver sitting beside him and permitting it, and the State was held liable. Against them stands Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, where the owner escaped because the person driving had no authority of any kind and the driver was not present to control the vehicle. The three together show a generous construction with a limit: the servant must still be doing the master's work, or the work must still be under his control.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.