Doctrine of Vicarious Liability

This article is written by Aanchal Rawat, a second-year student of R N Patel Ipcowala School of Law and Justice pursuing B.Com-LL.B. (Hon.). This article talks about vicarious liability, civil law, criminal law.

INTRODUCTION

When a person does a wrongful act then he is liable for that act and not any other person.

However, in certain cases, a person may be held liable for the actions of others. In such cases, the law imposes vicarious liability on one person for the acts of others.

A can be liable for the act done by B, if there is a certain kind of relationship between A and B, and the wrongful act done is somehow connected with that relationship.

Vicarious liability is a form of a liability that arises under the common law doctrine of agency, respondeat superior, and the responsibility of the superior for the acts of their subordinates.

Principles of Vicarious liability

Vicarious liability is based on two principles. Following are those principles:

Qui facit per alium facit per se: One who makes the other do the act does it himself.
Respondeat Superior: The superior/principal will be liable / responsible for the work done by his subordinate, agent, etc. If it is done in the course of the business.

Example: If an employee of a company commits fraud then the company will be liable for it.

If an employee cheats the client of the company then the company will be liable.

Civil law

In civil law to constitute vicarious liability two conditions must be satisfied. Following are the two conditions:

Relation
Ratification

Relation

There should be a relation between the wrongdoer and the other party, such as Principle and Agent, Master and Servant, Employer and Employee, etc.

Ratification

A person is also liable for the wrongful act or omission of some other party in the following ways-

If the person abets the other person to any wrongful act then he is also liable.
If the former ratifies or authorizes the act of the other knowing that the act committed or omission done was wrong.
As standing towards the party who committed a wrong in such a relation that it entails responsibility for the acts or omission done by the other person.

Reasons for Holding the Master Vicariously Liable

Respondeat Superior

This maxim is used to hold Master vicariously liable which means “Let the superior/principal be liable/responsible”.

Avoiding Exploitation of the Servant

Many times a servant does the dirty work of its Master in his course of employment and to avoid the responsibility the Master then fires the servant. So, to stop the exploitation of the servant’s a Master is made liable for the wrongful act done by the servant if the act is done during the course of his employment.

Qui facet alium facet per se

This maxim is also used to hold the Master liable. It means “One who makes others do an act; it will be seen as if he has done it himself”.

Damages

A Master is considered as an insurance that the aggrieved will be will able to get compensation/damages.

Examples of Vicarious liability

Principal and Agent
Partners
Master and Servant

Principal and Agen

When an agent does any wrongful act which the principal has ratified him to do then both the principal and agent are liable for it. Their liability is joint and several. The principal can authorize the agent to the wrongful act either by expressing it or by implying it.

It is not necessary the principal will be liable for only the wrongful act he had authorized an agent to do. The Principal will also be held liable if an agent does a wrongful act in the ordinary course of the performance of his duties as an agent.

Example:

Shasha had Villa on her name which she wanted to sell; she approached Rera Estate Agency for that. There a manager named Manglesh made Shasha sign a document which she believed were the sale deed which, in reality, the manager Manglesh had made her sign the gift deed in his name. After getting the Villa he sold it and then misappropriated the money received from selling it.

Here, Manglesh had acted solely for his benefit and without the knowledge of his principal (Rera Estate Agency). Manglesh being an agent and acting in the course of his apparent or ostensible authority, due to which the principal will also be liable for the fraud.

Partners

If a partner commits any wrong in the course of business of the partnership firm then other partners are also liable for the same.

The partners are liable jointly and severally.

Example

If one partner commits fraud then other partners of the firm are also liable for the fraud.

Master and Servant

If a servant does a wrongful act in the course of his employment, the master and servant both are liable for it.

The act of the servant is considered the act of the master as well. This is based on the doctrine of liability of the master for the act of his servant which is based on the maxim respondeat superior, which means ‘let the principal/superior be liable/responsible’ and this puts the master in the same position as the servant as if he had done the act himself.

This liability also derives its validity from the maxim qui facit per alium facit per se, which means “he who does an act through another is deemed in law to do it himself”. As both master and servant are liable, the plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several. They are joint tortfeasors. Here the maxim respondeat superior (let the principal be liable) is used so that the clam can be met because of the master’s large pocket and also to pass on the burden of liability through insurance. The liability arises even though the servant acted against the express instructions, and for no benefit of his master.

For making the Master liable following two conditions must be satisfied:

(1) The wrong was committed by the ‘servant’.

(2) The servant committed the wrongful act in the ‘course of his employment’.

Who is a master?

Master is that person who employs another person subject to certain terms and conditions to work under his orders and supervision.

Who is a servant?

A servant is a person who is employed to do work under the directions and control of his employer/Master.

Example:

A son is not the servant of his father.

An employer is not liable for any wrongful act done by servant, if he does it after the duration of his employment.

Example:

Danish’s servant Golu commits theft at Danish’s neighbour’s home at 3 am at night. The work time for Golu was 10 am to 5 pm. In this case Danish will not be liable as Golu has committed theft at 3 am which is outside his work time.

An employer is not liable for any wrongful act done by an independent contractor.

Example:

Mahesh hired a taxi to reach the Railway station. The taxi driver negligently hits Mangla; here Mahesh will not be liable towards Mangla because the driver is not his servant but only an independent contractor. The taxi driver will only be liable for that.

Criminal Law

A person can be liable for the act done by the other person if he is also a party to the offence. Example:

Two persons go to rob a bank, one of them stayed outside the bank and the other went into bank to rob it. The person who stayed outside the bank will also be liable along with the person who went inside the bank for robbing the bank.

The principle which is followed the is that a person may be held liable as the principal offender, even if the actus Reus was committed by some other person. The person who commits the act on the instruction of the other will also be held liable. He will not be considered innocent.

Example:

Mayank a contract killer was assigned to kill Kalpa by Pratmesh. Mayank killed Kalpa. Here Mayank had done the act as per the instructions of Pratmesh. Though Pratmesh has not killed Kalpa he had instructed someone else to do it. The law will also held Pratmesh liable along with Mayank. Pratmesh will not be considered innocent.

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