This article has been written by Niti Shah pursuing BLS/ LLB from Pravin Gandhi College of Law, University of Mumbai.
A person is always responsible for his wrongful deeds and one does not take the responsibility for the wrong full deeds done by others. Where one person is responsible for the deeds done by another person in such cases vicarious liability occurs. Liability can only arise if there is a certain kind of relationship between two. For example liability by an act done by B may arise to A if there is a certain kind of relationship between the two. It is compulsory and the most important condition that there must be a certain kind of relationship between the two and the wrongful act in any way should be connected to the same relationship. For e.g A, is an employee who works for B. A is a driver of a truck owned by B but while working in the course of the employment A hits a pedestrian as A is working during the course of employment and there also exists a relationship between the two hence B is responsible for the act done by A.
What is Meant by Tort?
A tort is a civil wrong or wrongful conduct which implies the violation of an individual’s legal right for which the remedy is in terms of unliquidated damages. Common torts include negligence, battery, assault, nuisance, contributory negligence etc. A person who commits a tort is referred to as a tortfeasor. Employers happen to be vicariously responsible for the torts committed by their employees only if they meet the requirement of vicarious liability which involves a relationship between the two and the tort is committed during the employment only then is the enactment of liability on the principal for the mistake of the employee.
Relation in which Vicarious Liability Arises
- Master and Servant relationship
- Partners in a Partnership Firm.
- Principal and Agent relationship
- Company and its Directors.
- Owner and Independent Contractor
What is meant by Course of Employment
For a principal employer to be responsible first we need to understand what is the course of employment. Liability of a principal employer arises when two necessary conditions are fulfilled :
1. The tort must be committed by a servant, a servant is a person who has been employed by the principal employer,
2. The servant must commit the tort in the course of his employment which means they must be committed during the process of doing work. The definition of course of employment is an employee involved in any work for not one’s own business but for an employer.
Master and Servant Relationship
In a Master-Servant relationship, the master is the one who employees the servant for obtaining the services provided by him and the servant works on the command of the master hence a special relationship exists between the both of them and if in case a tort is committed by the servant then even the master is liable for the same. Tort includes all the negligence cases as well as the intentional wrong committed by a person. There are so many cases in which it is implied that the master is doing the work. This implication happens because the master has assigned the servant to do his work hence any wrong or any unlawful act committed by the servant has the liability on the master of the same. This liability of the master for the acts of the servant is based on following two maxims:
- Qui facit per alium facit per se: –Latin legal term which means, “He who acts through another does the act himself.” It means that at any point of time a person gets any work done by another person then the person is to be doing such an act himself. For example: If A is the owner of a car and B is employed by A for driving him to the office each day. One day because A was getting very late he asked B to drive the car as fast as possible and because of overspeeding, the car B gets involved in an accident. In this case, the accident took place in the course of the employment and also the wrongful act is related to the special relationship that exists between the two then even though A did not drive the car himself, he will be liable for the accident.
- Respondeat Superior: –Latin legal term which means: “let the master answer” It means that the superior should be held responsible for the acts done by his subordinate.
These two maxims play a very important role in the development of the law of vicarious liability of masters.
Partners in a Partnership Firm
The relationship which the partners have with each other is similar to the relationship between principal and agent. For the tort committed by any partner of the company, all other partners are liable. Each partner is jointly liable. Section 4 of the Indian Partnership Act 1932 says that. “Partnership” is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Section25 which says that every partner is liable jointly with all the other partners and also severally, for all acts of the firm done while he is a partner
Principal and Agent
Vicarious liability in the context of the principal-agent relationship means responsibility on the principal for the acts of the agent. This form of liability finds its basis on the simple agency law principle of Respondeat Superior or “let the master answer,” attribute the actions of the servant/ agent on the master (principal). Each agent is expected to use reasonable care and diligence to accomplish the principal’s objectives. This means that an agent should use personal skills and knowledge to perform all tasks diligently while working for the principal.
Company and its Directors
The Company or the corporations are responsible for the actions of the company’s executives and directors because they act on behalf of the company and all the major decisions about the company are taken by them. The corporation which they are representing is held vicariously liable for the acts committed by them in the course of employment and that affects the position of the business or creates a new relationship with a third party. Directors are the trustees of the company’s assets, transact business, and take on duties as its representatives. Also, the directors of the corporations are liable for the offences committed by the corporations.
Owner and Independent Contractor
An independent contractor is an individual who performs for another individual (the principal) under an implied agreement and is the one who is not under anyone’s control and is independently responsible for himself and his actions unless in certain cases makes the person who has hired the contractor responsible. An independent contractor is a person who supervises the worker community and compensates them for their work
Relationship between an Independent Contractor and Principal Employer
There’s no direct relationship between both the two parties and the employer does not have any control over the labour employed by the independent contractor but the employer can demand the services in a certain way but at the end of the day, it is the contractor who decides how he wants to complete the demanded services. It is the independent contractor who finally decides the method that will be used to perform the act or job assigned to him or her by the person who is the principal employer.
How to Determine whether a Contract is Independent or Not?
To determine whether a person is an independent contractor or not:
Control of the job: How the person employed works, if in case the employer works according to the method decided by the principal employer then it is not an independent contract but only if the employer is concerned with the services and the method is decided by the contractor then he is on an independent contract..
Nature of the work: An independent contractor always brings his machinery and all the necessary items that are required to complete the task assigned by the principal employer. In the case of an employee, all the material are provided by the company hence the employee does not have the freedom to do the work in his way
To sum it up, it can now be very well established that with this article that vicarious liability exists among persons who share a master-servant relationship and commit a tort during the course of the employment.
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