Vicarious Liability: Basis and Justification
Chapter Fifty-Three
Syllabus topic 3.1, "Vicarious Liability: Basis, scope, Justification, Different types."
Pages 215 to 218 of 434
In one line
Vicarious liability makes one person answerable for a tort committed by another because of the relationship between them.
In the wording a student can write in an exam: vicarious liability is the liability of one person for the tort of another, arising not from any fault of his own but from the relationship between them; its basis is expressed in the maxims qui facit per alium facit per se, he who acts through another acts himself, and respondeat superior, let the superior answer; it requires a relationship the law recognises, a tort committed by the person for whom liability is imposed, and a connection between the tort and that relationship, ordinarily that it was committed in the course of employment.
The two maxims
Qui facit per alium facit per se means "he who acts through another acts himself". It expresses the idea that a person who gets his work done by another is doing it himself, so the law treats the other's wrongs in that work as his.
Respondeat superior means "let the superior answer". It expresses the idea that the person in the position of authority, and of means, should answer.
The three requirements
1. A relationship the law recognises. Master and servant is the principal one; principal and agent, partners, and in some circumstances a person who lends his servant or his vehicle, are others. Chapters [Who Is a Servant] and [Other Relations that Attract Vicarious Liability] work them out.
2. A tort committed by the other person. There must be a wrong for which the servant himself would be liable. Vicarious liability is not a separate tort.
3. A connection between the tort and the relationship. For a servant that connection is the course of employment, which chapter [Course of Employment] works out.
Why the law does this: the justifications
This is the part of the topic MU prints in terms, and it is what turns a definition into an answer.
Control. The master chooses the servant, directs the work and can stop it. A person who has that power should answer for how it is used.
Benefit. The work is done for the master's benefit, and it is fair that the person who takes the profit of an activity should take its losses. This is sometimes put as: the risk is a cost of the enterprise.
Loss distribution and the deep pocket. The master can insure, and can pass the cost into his prices; the injured person can do neither. Chapter [The Object of the Law of Torts] shows how this reflects the loss-distribution object.
Deterrence. A master who bears the cost of his servants' wrongs will select and supervise them better.
Vicarious Liability: Basis and Justification
The plaintiff's practical protection. A servant is often not worth suing. If liability stopped with him, the right would be theoretical.
There is a criticism, and mentioning it earns marks: liability without fault sits uneasily with the fault principle, and it may make a careful employer pay for a wrong he did everything to prevent. The answer is that the doctrine is not about blame but about who should carry a loss the enterprise generated.
The scope of the doctrine
It is joint and several. The master and the servant are both liable, and the plaintiff may sue either or both, as chapter [Joint Tortfeasors] explains. The servant does not escape merely because the master is liable.
It extends to the State. Article 300 of the Constitution makes the State suable, and chapter [Vicarious Liability of the State] works out how far. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, is the modern Indian illustration.
Facts. A government jeep was being driven not by its appointed driver but by another employee, with the driver sitting beside him and with his knowledge and consent. It was driven rashly and killed a scooterist, and the State denied liability because the man at the wheel was not authorised to drive.
Held. The State was vicariously liable. The modern trend is to make a master liable for acts which do not strictly fall within the course of employment as ordinarily understood, and where the appointed driver allowed a colleague to drive with his knowledge and consent while he sat beside him, the act was in the course of employment. The Court relied on Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, where a company was liable although its manager had taken a passenger without authority.
Why it matters here. It states the direction of Indian law: the connection with the employment is read generously, and a technical want of authority does not save the master.
A worked example
A courier company employs Deepak to deliver parcels on a motorcycle.
Deepak knocks down a pedestrian while delivering. The company is liable: the relationship is master and servant, there is a tort, and it was committed in the course of employment.
Deepak lends the motorcycle to a friend who knocks down the same pedestrian. The company's liability now depends on whether the friend was doing the company's work with its authority, actual or implied; Kanchanmala shows that a court will not be quick to let the employer out where the servant remained in charge.
Deepak assaults a customer who complains about a late delivery. Whether the assault is in the course of employment is the question in chapter [Course of Employment]; a wrongful mode of doing authorised work is within it, a personal quarrel is not.
Vicarious Liability: Basis and Justification
Deepak takes the motorcycle home for a family wedding and crashes. That is a frolic of his own and the company is not liable.
Who does the pedestrian sue? Both. The company has the money, and the liability is joint and several.
What it does NOT mean
It does not require fault in the master. That is the whole point of the doctrine.
It does not excuse the servant. He remains liable, and in principle the master who pays may seek indemnity from him.
It is not confined to employees. Principals, partners and, in some circumstances, owners of vehicles are caught.
It does not apply to every act of a servant. The tort must be connected with the employment.
Quick revision
- Vicarious liability: liability of one person for another's tort, arising from their relationship.
- Maxims: qui facit per alium facit per se and respondeat superior.
- Three requirements: a recognised relationship, a tort by the other, and a connection with the relationship.
- Justifications: control, benefit, loss distribution and the deep pocket, deterrence, and the plaintiff's practical protection.
- Criticism: liability without fault; the answer is that the doctrine allocates a loss rather than blame.
- Liability is joint and several, and the servant remains liable.
- State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659: the course of employment is read generously; an unauthorised driver with the appointed driver beside him was still within it.
Test yourself
1. What is vicarious liability, and on what basis is it imposed? Vicarious liability is the liability of one person for a tort committed by another, imposed not because of any fault of his own but because of the relationship between them. Its basis is expressed in two maxims: qui facit per alium facit per se, he who acts through another acts himself, and respondeat superior, let the superior answer. Three things must be shown: a relationship the law recognises, principally master and servant but also principal and agent and partners; a tort committed by the person for whose act liability is claimed; and a connection between that tort and the relationship, which for a servant means that it was committed in the course of his employment. The liability is joint and several, so the servant remains liable too.
2. How is vicarious liability justified? By five arguments. Control: the master selects the servant, directs the work and can stop it, so he should answer for how it is done. Benefit: the work is done for the master's advantage, and the person who takes the profits of an activity should bear its losses. Loss distribution: the master can insure and can pass the cost into his prices, while the injured person can do neither, so placing the loss on him spreads it most efficiently. Deterrence: an employer who pays for his servants' wrongs will select and supervise them better. And practical protection: a servant is often not worth suing, so a rule stopping at him would leave the right theoretical. The standing criticism is that liability without fault is inconsistent with the fault principle; the answer is that the doctrine allocates a loss the enterprise created rather than apportioning blame.
Vicarious Liability: Basis and Justification
3. Does the master's liability excuse the servant? No. Both are liable, and their liability to the plaintiff is joint and several, so he may sue either or both and recover the whole from either, subject to one satisfaction. In principle a master who has paid may seek indemnity or contribution from the servant whose wrong it was, since the servant is the primary wrongdoer, though in practice this is rarely pursued because the servant has no means, which is one of the reasons the doctrine exists at all.
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.