Other Relations that Attract Vicarious Liability
Chapter Fifty-Seven
Syllabus topic 3.1, "Vicarious Liability: Basis, scope, Justification, Different types."
Pages 230 to 232 of 434
In one line
Besides master and servant, vicarious liability arises between principal and agent, between partners, and where an owner casually entrusts a dangerous thing to somebody to do his work.
In the wording a student can write in an exam: the relations that attract vicarious liability are master and servant, principal and agent, partners in a firm, a company and those through whom it acts, and, in India, an owner who entrusts his vehicle to another to be driven for his purposes, which is called casual delegation; the common element is that the wrongdoer was doing the defendant's work with his authority, express or implied.
Principal and agent
Section 182 of the Indian Contract Act 1872 defines an agent as a person employed to do any act for another or to represent another in dealings with third persons, and the person for whom the act is done is the principal.
Section 188 provides that an agent having authority to do an act has authority to do every lawful thing necessary in order to do it, and that an agent authorised to carry on a business has authority to do every lawful thing necessary for that purpose or usually done in the course of conducting it.
Section 238 provides that misrepresentations made, or frauds committed, by agents acting in the course of their business for their principals have the same effect on agreements made by such agents as if the misrepresentations or frauds had been made or committed by the principals; but misrepresentations or frauds which do not fall within their authority do not affect their principals.
The tort rule matches. A principal is liable for a tort committed by his agent within the scope of the authority conferred, whether that authority is express, implied or apparent, and the test of scope is the same idea as the course of employment in chapter [Course of Employment].
Partners
Partners are agents of the firm and of one another for the purposes of the business, so a tort committed by one partner in the ordinary course of the business makes all of them liable, jointly and severally, and the firm's property answers as well.
Companies
A company acts through people. It is liable for the torts of its servants and agents in the ordinary way, and in addition the acts of those who are its directing mind are treated as its own acts rather than as somebody else's for which it is vicariously liable.
Casual delegation, and the owner of a vehicle
This is the Indian branch that matters most in practice, because it is how the owner of a car is made liable for the driving of a friend or a relative.
Other Relations that Attract Vicarious Liability
The principle. Where an owner asks another person to do something for him with his chattel, the other is doing the owner's work, and the owner is liable for his negligence in doing it even though there is no contract of employment.
Facts. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, decided on 8 February 1966. A taxi owner entrusted the vehicle to a driver who collected the fares and accounted to him; the driver trained the cleaner and took him for a driving test, during which the cleaner injured the respondent. The driver was not in the vehicle.
Held. The owner was not liable. There is a presumption that a vehicle is driven on the master's business by his authorised agent or servant, but it may be rebutted, and it was, because 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; nor was the driver present to control the vehicle on his behalf. The act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing an act authorised by him.
And the other side. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, held the State liable where a jeep was driven by an employee who was not the appointed driver, the appointed driver being beside him and having consented, because the modern trend is to make the master liable for acts which do not strictly fall within the course of employment as ordinarily understood.
Why they matter here. Together they show that what the court looks for is whether the vehicle was being used for the owner's purposes and whether the person the owner trusted remained in control.
Where vicarious liability does NOT arise
Parent and child. A parent is not liable simply as a parent, as chapter [Who May Not Be Sued] explains; he is liable where the child was his servant or agent, or where he was himself negligent.
Employer and independent contractor, subject to the exceptions in chapter [Liability for an Independent Contractor].
Hirer of a vehicle with its driver, where the driver remains the general employer's servant.
A worked example
Gopal owns a car.
His driver, employed on a salary, knocks somebody down while taking Gopal to work. Master and servant: Gopal is liable.
Gopal asks his neighbour to take the car and fetch his daughter from the station, and the neighbour knocks somebody down. Casual delegation: the neighbour was doing Gopal's work with his authority, and Gopal is liable although the neighbour is neither servant nor agent in any formal sense.
Other Relations that Attract Vicarious Liability
Gopal lends the car to the same neighbour for the neighbour's own holiday. No liability: the car was not being used for Gopal's purposes.
Gopal's manager, authorised to run his shop, makes a fraudulent statement to a customer while selling goods. Principal and agent, and section 238 of the Indian Contract Act 1872 states the same rule for the contract: the fraud of an agent acting in the course of his business for his principal affects the principal.
One of Gopal's partners defames a supplier while negotiating for the firm. All the partners are liable, because a partner is an agent of the firm for the purposes of its business.
Quick revision
- The relations: master and servant, principal and agent, partners, company and its people, and casual delegation.
- Section 182 of the Indian Contract Act 1872 defines agent and principal; section 188 fixes the extent of an agent's authority; section 238 makes an agent's fraud in the course of the business the principal's concern.
- A principal is liable for an agent's tort within the scope of express, implied or apparent authority.
- Partners are agents of the firm; liability is joint and several.
- Casual delegation: the owner of a chattel is liable where another uses it for the owner's purposes with his authority.
- Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697: the presumption about vehicles, and how it is rebutted.
- State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659: liability where the trusted driver remained in the vehicle and consented.
- No liability merely as a parent, nor for an independent contractor except in the recognised cases.
Test yourself
1. What relations besides master and servant attract vicarious liability? Principal and agent, where the principal answers for torts committed by the agent within the scope of his authority, express, implied or apparent; the Indian Contract Act 1872 supplies the framework, section 182 defining agent and principal, section 188 the extent of an agent's authority, and section 238 providing that misrepresentations or frauds by agents acting in the course of their business for their principals have the same effect as if made by the principals, while those outside their authority do not. Partners, who are agents of the firm for the purposes of the business, so that a tort by one in the ordinary course makes all liable jointly and severally. Companies, which answer for their servants and agents and whose directing minds' acts are treated as the company's own. And casual delegation, where an owner entrusts a chattel to another to be used for the owner's purposes.
2. Explain casual delegation with Indian authority. Casual delegation describes the case where an owner asks another person, who is neither his servant nor his agent in any formal sense, to do something for him with his property, typically to drive his vehicle. Because the other is doing the owner's work with his authority, the owner answers for his negligence. Indian law begins from a presumption that a vehicle is being driven on the owner's business by his authorised servant or agent, but Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, holds that the presumption may be rebutted, and rebutted it where a cleaner drove during a licence test without the owner's authority and with the driver absent from the vehicle. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, shows the other side: the State was liable where the appointed driver sat beside a colleague and allowed him to drive with his knowledge and consent. The question in each case is whether the vehicle was being used for the owner's purposes and whether the person he trusted remained in 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.