VICARIOUS

LIABILITY
In
Law of Torts



University Institute Of
Legal Studies


Submitted By:
Submitted To:
SCHEHERAZADE SANDHU
MISS ANJU
103/14
BA.LLB 1
st
Sem



TABLE OF
CONTENTS

1. Abbreviations
2. List Of Cases
3. Introduction
4. Relationship
Master and Servant
Principal and Agent
Employer and Employee
5. Course of Employment
6. Doctrine Of Common Employment
7. Liability of Vehicle Owners and Hospitals
8. Bibliography


ABBREVIATIONS
V.
versus
Co.
Company
Ltd.
Limited


LIST
OF CASES

1. Ormod v.Motor Service Ltd. 05
2. Hamlyn v. Houston & Co. 05
3. National Insurance Co. ., Kanpur v. Yogendra Nath 07
4. Huchinston v. York, New Castle and Berwick Rail Co. 08
5. Farwell v. Boston & Worcester R.R. Corp 09
6. Storey v. Ashton (1869) LR 4 QB 476 14
7. Century Insurance v. Northern Ireland Road Transport Board [1942] AC 509 14
8. Whatman v. Pearson (1868) LR 3 CP 223 14
9. Hillyer v. St.Bartholomews Hospital 13










INTRODUCTION

The law of tort has been used for many centuries to protect personal interests such as property,
reputation, body etc. It ensures justice is done by looking into the claimant's need for
compensation, which is paid by the defendant who has committed a breach of duty. The general rule
in tort law is that liability is personal, i.e., liability is generally linked to a breach of one s own duty
and a person is liable for the wrongs committed by him only. However, in certain scenarios, the law
makes one person being liable for the harm caused by another, because of some legally relevant
relationship between the two. This is known as the doctrine of Vicarious Lability. The doctrine of
vicarious liability generally operates within the law of torts. It has become well-established in English
law and historically has been called Master and Servant liability. Vicarious liability means liability
which is incurred for or instead of, another. A person is responsible for his own acts. But there are
circumstances where liability attaches to him for the wrongs committed by others. The most common
instance is the liability of the master for wrongs, committed by his servant. In these cases liability
is joint as well as several . The other common example of vicarious liability is the liability of
an employer for the torts of his employees committed in the course of employment. It is not necessary
in such circumstances for the employer to have breached any duty that was owed to the injured party,
and therefore it operates as strict or no-fault liability. It is possible that the injured party could be either
an employee or a stranger, and the employer can be held vicariously liable in both situations. The most
important element to establishing a case for vicarious liability is that the wrongdoer be
acting as a servant or employee, and that the wrong done be connected to the employees course
of employment. Vicarious liability can only be imposed if it is proved that the employee was acting in
the course of employment. This criterion is essential, and requires a clear connection between the
employment duties and the employees acts complained of. A reason for vicarious responsibility of
employers is that employers usually are, while their servants usually are not, financially capable of the
burden of civil liability. The theory partly owes its existence to the anxiety of the injured person to find
a solvent defendant . Again it is said that the employer should be made liable because it is he who has
set the whole thing in motion


RELATIONSHIP

Consider the situation in which one person will be liable for the torts of another, even
though the liable person is not a party to the tort or himself did not commit the tort in
question.
Eg- A is liable to C for the damage or injury suffered by C due to the tort committed by B.

The Relationship between A and B can be

>Master and Servant
>Employer and Employee
>Principal and Agent OR
>Parent and Child


1. Principal and Agent

Where one person authorizes the other to commit a tort, the liability for that will be not
only of that person who has committed it but also of that who authorized it.
It is based on the principle "Qui facit per alium facit per se" which means that the act of
an agent is the act of the principle or in general "he who does an act through another is
deemed in law to do it by himself". Liability arises only when the act is done by the
servant under the course of employment. As Lord Pearce has shortly exclaimed "vicarious
liability is based on, social convenience and rough justice". That is why sometimes this
liability is explained on the basis of maxim respondent superior, which means the superior
is responsible for the providing answer.
For the purpose o vicarious liability, even a friend , driving my car for me, may be my
agent. In Ormod v.Motor Service Ltd.
1
The owner of a car asked his friend to drive his
car. While the car was being so driven by the friend , it collided with a bus. The owner of
the car was held liable. Lord Denning observed:
The law puts an especial responsibility on the owner of a vehicle who allows it to go on
road in charge of someone else. It is being used wholly or partly on the owners purpose,
the owner is liable for any negligence on the part of the driver. The owner only escapes
liability when he lends it or hires it to a third person to be used for purposes in which the
owner has no interest or concern.

2. Partners

1
1953) 1 All E.R. 711, (1953) 2 All E.R. 753 (C.A.).
The relationship as between partners is that of principal and agent. The rules of the law of
agency apply in case of their liability also. For the tort committed by any partner in the
ordinary course of the business of the firm, all the other partners are liable therefore to the
same extent as the guilty partner. The liability of each partner is joint and several. In
Hamlyn v. Houston & Co.
2
, one of the two partners of the defendants firm, acting
within the general scope of his authority as a partner , bribed the plaintiffs clerk and
induced him to make a breach of contract with his employer by divulging secrets relating
to his employers business. It was held that both the partners of the firm were liable for
this wrongful act committed by only one of them.
3. Master and Servant
But first, Who is a Servant?
A servant is a person employed by another to do work under the directions and control of
his master. As a general rule, the master is liable for the tort of his servant but he is not
liable for a tort of an independent contractor. It, therefore becomes essential to distinguish
between the two.

Now, If a servant does a wrongful act in the course of his employment, the master is liable
for it. The servant, ofcourse is also liable.
The wrongful act of the servant is deemed to be the act of the master as well.
Sine for the wrong done by the servant , the master can also be made liable vicariously,
the plaintiff has the choice to bring an action against either or both of them . Their liability
is joint and several as they are considered to be joint tortfeasors. The reason for the maxim
Respondeat Superior seems to be the better position of the master to meet the claim
because of his large pocket and also ability to pass on the burden of the liability through
insurance. The liability arises even though the servant acted against the express
instructions , and for no benefit of his master.

2
[1903] 1 KB 81
For the liability of the master to arise , the following two essentials are to be present :
(1) The tort was committed by the servant
(2) The servant committed the tort in the course of his empoloyment.


Distinction between servants and
independent contractors

Servant Independent Contractor
-a person that has a contract of service -a person that has contract for services
(a master can order what is to be done, and (a master can only order or require
how it shall be done) what is to be done)
Collins v. Hertfordshire CC [1947] KB 598
-a person employed to do work subject -a person who is his own master, and
to the control and directions of his exercises his own discretion as to the mode,
employer and time of his work

-a person engaged to obey orders from -a person who is bound by his contract, but
time to time not by his employers orders

Whilst an employer is liable for the torts of his servants, he is generally not liable for those of
his independent contractors. Quarman v. Burnett
3



THE COURSE OF EMPLOYMENT
An act is deemed to be done in the course of employment if it is either: (1) a wrongful act
authorized by the master, or (2) a wrongful and unauthorized mode of doing some act
authorized by the master. So, a master can be made liable as much for unauthorized acts as

3
[1835-42] All ER Rep 250.
for the acts he has authorized. However, for an unauthorized act, the liability arises if that
is within the course of employment, i.e., it is a wrongful mode of doing that what has been
authorized. Thus, if I authorize a servant to drive and he drives negligently, or I authorize
a servant to deal with clients and he deals with them fraudulently or if I authorize a
servant to help the railway passengers, but he mistakenly causes harm to them, in each the
servant is doing the act which he is authorized to do but his mode of doing is wrongful.
Each one of these acts is, therefore, within the course of employment and the master can
be made liable for the same. In National Insurance Co. ., Kanpur v. Yogendra Nath
4
,
the owner of a car, authorized his servants and orderlies to look after the car and to keep
the same dusted while he was out of town for a long period. One of the servants took the
car to a petrol pump for getting the tyres inflated and for checking the oils, etc., and
negligently knocked down and injured two boys, aged about 11 years and 13 years, who
were going on a cycle. The act of the servant in this case was held to be within the course
of employment of his master, for which the master was liable, and the masters insurers,
therefore, could be made liable to indemnify the master (ie., the owner of the car ) for the
sum awarded against the owner.


THE DOCTRI NE OF COMMON EMPLOYMENT
The rule known as the doctrine of common employment was an exception to the rule that a master is
liable for the wrongs of his servant committed in the course of his employment. The rule was first
applied in Priestley v. Fowler , developed in 1850 in Huchinston v. York, New Castle and Berwick
Rail Co. and it was firmly established that as a part of English law by subsequent decisions. The
doctrine was that a master was not liable for the negligent harm done by one servant to another fellow
servant acting in the course of their common employment.

4
AIR 1982 All 385, 1984 56 CompCas 421 All
In Priestley v. Fowler
5
, the plaintiff, who was the defendants servant , was injured at his thigh due to
breaking down of an overloaded carriage in the charge of another servant of the defendant. Since both
the wrongdoer and the injured person were the servants of the same master, the doctrine of common
employment was applicable and the master was held not liable. The essentials for the application of the
defense of common employment are : (1) The wrongdoer and the person injured must be fellow
servants, and (2) at the time of accident , they must have been engaged in common employment.
6

But in England , due to The Employers Liability Act 1880 and in India, due to The Employers
Liability act 1938, this doctrine was limited and now due to the difficulties created by the Privy
Councils decisions in Constance Zena Wells case, which still recognized the defense of Common
Employment in India, Section 3 of Employers Liability Act, 1938 has been amended in 1951. By this
amendment, the defense of Common Employment, as such has been abolished in India.


Farwell v. Boston & Worcester R.R. Corp
7
, Massachusetts Chief Justice Lemuel Shaw
used a contract rationale to prevent a railroad worker from recovering from his employer,
Boston and Worcester Railroad, for an injury due to the negligence of a switch tender
employed by the same company, even though a third party or passenger would likely have
been able to recover for the same injury. In Shaw's view, the injured worker was in as
good a position as his employer had been (indeed, most likely a better one) to monitor the
work of his fellow workers. It followed that to allow Farwell to recover compensatory
damages would have been to create a moral hazard in the workplace, softening the blow of
employee carelessness for those best able to prevent it.
This created the fellow servant rule. In the years and decades that followed, courts in
Massachusetts and elsewhere in the United States developed a monopoly of doctrines that
made it exceedingly difficult for industrial workers to go to law for insurance against the
risks of their work. Employees were said to assume the ordinary risks inherent in the
workplace. And where an employee's own negligence (no matter how slight) contributed
to his injury, he was barred from recovering damages, even from a negligent employer.

5
[1837] 150 E.R. 1030
6
R.K Bangia Pg.100
7
, 45 Mass. 49 (Mass. 1842)
The contributory fault doctrine connected the law of work risks to a much broader array of
nineteenth-century legal rules that limited the law's risk-spreading capacity. People
entering onto someone else's land were owed only a limited duty of care, and sometimes
no duty of care at all.
The Farwell opinion has been seen by some scholars as providing the financial stability
necessary to secure the success of an infant railroad industry.
[2]
Held
The mere incompetency of a fellow servant is insufficient to render the master
liable for his negligent acts, absent a showing that the master knew of such
incompetency, and was negligent in continuing to employ him.
A master is not liable for injuries to a servant, caused by the negligence of a fellow
servant engaged in the same general business, where the master has furnished
proper appliances, and has not been negligent in the selection of fellow employees.
Employees engaged in the same general business are fellow servants, though they
are in different departments of work.
The liability of a master for injuries to a servant, caused by the negligence of a
fellow servant, is not dependent on the ability of the injured servant to influence the
acts and conduct of the negligent servant.
An engineer in the employ of a railroad company cannot recover for injuries caused
by the negligence of a switch tender, who is employed by the same company, since
they are fellow servants.
A person entering the service of another assumes all risks naturally incident to that
employment, including the danger of injury by the fault or negligence of a fellow
servant.
A railroad company employed A., who was careful and trusty in his general
character, to tend the switches on their road; and, after he had been long in their
service, they employed B. to run the passenger train of cars on the road, B.
knowing the employment and character of A. Held, that the company were not
answerable to B. for an injury received by him, while running the cars, in
consequence of the carelessness of A. in the management of the switches.


Summary of facts:

1: T. was a defendant's employee, and was required to collect his
weekly wages on the defendants' premises on Friday afternoons.

2: He was bicycling towards the pay office in the premises; he decided
to ride across the bus park where several buses were standing.

3: he turned down a gap between two of the buses in order to rejoin
the road.

4: As he came along the gap, he collided with one S. an employee of
the defendants, who just left out one bus

5: S was killed as the result of the collision

6: S's widow brought the action against the defendants for damages for
the negligence of their servant T.

What was held in the court?

The plaint was allowed .

Reasons

1: T. being actually on his employer's, and was in order required to
collect his wages on the premises, and was under the course of
employment at the time of accident so as to make the master liable
under vicarious liability.

LIABI LITY OF VEHICLE OWNERS
In most car accident cases, the key issue is determining which driver is at fault for the
accident. Usually, if one driver is negligent -- that is, did not use reasonable care or
caution while driving -- he or she will be at fault. However, in some situations, the law can
assign fault to someone who was not driving or even present in the car at the time of the
accident. Although this sounds surprising, there are a number of common situations where
this can occur.
When an Employee Drives the Car
The law holds employers responsible for wrongful acts, including negligent driving,
when they are committed by an employee while the employee is performing job duties.
(This comes under the theory of "vicarious liability," or "imputed negligence." When two
parties have a certain relationship with one another, the law can hold one party liable for
the misconduct of another.)
For example, if you are an employer and your employee runs a red light and hits another
car while driving the company car during work hours, you will be responsible for the
damages caused by your employee.

HOSPITAL CASES

Independent consultants who are not employees of the hospital but use the facilities
provided by a hospital are solely responsible for their negligent acts and cannot invoke
vicarious liability of the hospital.

Principle of vicarious liability is "an employee is under the control of his employer.
Therefore, it is deemed that the employer is acting through his employee. So, he is held
responsible for that act done by the employee. Therefore, an employer should be careful
while employing a person and employ only competent persons." This is not the case with
independent consultant doctors. Since independent consultant doctors are not under
control of the hospital, they can hide under the shield of "vicarious liability".





New Delhi, August 08: If a patient dies due to medical negligence in a hospital, then its
management cannot be prosecuted and it is only the doctors who should be penalized, the
Delhi High Court has ruled.

However, the court held that the management of the hospital would be liable in case of
administrative negligence and failure to provide basic infrastructure to patients.

Justice Shiv Narayan Dhingra passed the order on a petition filed by Indraprashta Medical
Corporation Limited, challenging a metropolitan magistrate's order for registration of a
first information report against it for alleged medical negligence resulting in the death of a
patient in 2007.

Justice Dhingra said that the hospital or company cannot be held liable for the personal
negligence of the doctor in giving wrong treatment. He also said that if there is an
administrative negligence or negligence in providing basic infrastructure, which results in
some harm to an aggrieved person, the hospital can be held liable.

The court said that hospitals should not be punished due to error on part of its medical
staff.
In Hillyer v. St.Bartholomews Hospital
8
, the hospital authorities were held not to be
vicariously liable for the negligence of the professional staff involving professional care
and skill , because they lacked the power to control over them. That position no more
holds good and now the hospital authorities are liable for the professional negligence of

8
(1909) 2 K.B 820.
their including radiographers, resident house surgeons, assistant medical officers and
nurses and part- time anesthetics.

CASUAL DELEGATION OF AUTHORITY
For the purpose of vicarious liability , it is not necessary that there must be a long term
master-servant relationship. Even when a person, for a single transaction , authorizes
another to do something for him and the latter does it negligently , the former can be made
liable for the same. This may be explained by referring to the case Ormod v. Crosville
Motor Service Ltd.
9
, which relates to the liability of the principal for the tort of his agent.
In this case, the owner of a car requested his friend to drive the car from Birkenhead to
Monte Carlo so that shortly after reaching there they could use the car for a joint holiday.
Shortly after leaving Birkenhead , the friend driving the car , caused an accident . It was
held that the owner of the car was liable for such negligence of his friend.

MORE CASES OF VICARIOUS LIABILITY

Century Insurance v. Northern Ireland Road Transport Board [1942] AC 509- The
driver of a petrol tanker, whilst transferring gasoline from the vehicle to an underground
tank to filling station, struck a match to light a cigarette and then threw it, still alight, on
the floor. His employers were held liable for the ensuing explosion and fire, since the
drivers negligent act was merely an unauthorized manner of doing what he was employed
to do, that is, deliver gasoline.

Whatman v. Pearson (1868) LR 3 CP 223- A servant who was in charge of a horse and
cart throughout the day, drove them to his house without permission for his midday meal.
The employer was held liable for damage caused by the horse when, having been
carelessly left unattended outside the servants home, ran away. In this case the servant
had deviated only a quarter mile off his authorized route and the purpose of his detour was
reasonably incidental to his employment.


9
(1953) 2 All E.R 7531950) 1W.L.R 1120
Storey v. Ashton (1869) LR 4 QB 476- where a driver had been sent to deliver wine and
collect empty bottles and, on the return journey, deviated from his route in order to pick
up a cask at the house of a friend and take it somewhere else for the friends private
purposes, the employer was held not liable for the drivers negligent driving on the way to
the friends house, for he was clearly on a frolic of his own.







BIBLIOGRAPHY

1. http://en.wikipedia.org/wiki/Farwell_v._Boston_%26_Wor
cester_R.R._Corp
2. http://www.ijaweb.org/article.asp?issn=00195049;year=2010;v
olume=54;issue=6;spage=591;epage=591;aulast=Parakh
3. http://www.google.co.in/?gfe_rd=cr&ei=k9ICVMSlKcnM8
gehqIDIBQ#q=doctrine+of+common+employment
4. http://rostrumlegal.com/blog/the-doctrine-of-common-
employment-in-india-a-critical-study/
5. http://en.wiktionary.org/wiki/vicarious
6. http://www.indiankanoon.org/search/?formInput=vicarious
%20liability
7. http://injury.findlaw.com/medical-malpractice/vicarious-
liability.html
8. Little Oxford Dictionary
9. R.K Bangia