Beruflich Dokumente
Kultur Dokumente
RELATIONSHIP
- A PROJECT
SUBJECT: LAW OF TORTS
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sl. no.
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NAME OF CHAPTER
INTRODUCTION
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RESEARCH METHODOLOGY
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DEFINITION
BACKGROUND
PRINCIPLE
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PRINCIPLE-AGENT
PARTNERS
MASTER SERVANT
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CONCLUSION
BIBLIOGRAPHY
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ACKNOWLEDGEMENT
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I would like to thank my faculty Ms. Shushmita Singh, whose assignment of such
a relevant and current topic made me work towards knowing the subject with a greater
interest and enthusiasm and moreover he guided me throughout the project.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without whom I
couldnt have completed it in the present way.
I would also like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.
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i.
ii.
iii.
Discuss and analyze various case law related to test of control for
establishing vicarious liability
hypothesis
In India, The Test of Control is generally not used, even in
cases when it can be.
Test of control is not an essential ingredient to hold the
masters vicarious liability.
Test of control is confined within a limited tortuous act.
RESEARCH METHODOLOGY
This project is based upon doctrinal method of research. This
project has been done after a thorough research based upon
intrinsic and extrinsic aspects of the project.
Source of data: Secondary Sources
a) Books
b) Newspaper
c) Articles
e) Website
Mode of Citation:
The researchers have followed a uniform mode of citation
throughout the course of this project.
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however, vicarious liability, that is the liability of one person for the act
of another person, may arise. In order that the liability of A for the act
done by B can arise, it is necessary that there should be certain kind of
relationship between A and B, and the wrongful act should be, in
certain way, connected with that relationship.1
The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each others tort;
(3) Liability of the master for the tort of his servant.
So Vicarious Liability deals with cases where one person is liable for the
acts of others. In the field of Torts it is considered to be an exception to
the general rule that a person is liable for his own acts only.
Reasons for vicarious liability. Several reasons have been advanced as
a justification for the imposition of vicarious liability:
(1) The master has the deepest pockets. The wealth of a defendant,
or the fact that he has access to resources via insurance, has in some
cases had an unconscious influence on the development of legal
principles.
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(3) As the employer makes a profit from the activities of his employees,
he should also bear any losses that those activities cause.
The one reason for fixing his liability is historical. The personality
of the servant is deemed to be merged with the master and this
principle has survived the era of slave emancipation where
servant were treated as slaves and they did not had any
individual personality for identity.
Deeper pocket theory- The second reason for fixing liability on
master is based on public policy and master is supposed to be in
better position to pay for loss cause to the aggrieved party
through insurance for the tortuous act of his servant because of
his deeper pocket.
The third reason is expressed in the twin maxim of respondiate
superior which means let the master be liable and Qui facit
per alium facit per se which means that the act of the agent
is the act of the principle. Vicarious liability is based upon these
two principles as mentioned above.
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that who authorized it.2 It is based on the general principle Qui facit
per alium facit per se which means that the act of the agent is the act
of the principle.
The authority to do the act may be express or implied 3. So, when an
agent commit a tortious act in the ordinary course of employment,
then principle will be made liable for the same.
In Lloyd v. Grace, Smith $ co. , Mrs. Llyod who owned two cottages
was not satisfied with the income therefrom, approached the office of
defendant , a firm of solicitors and she was advised to sell the two
cottages and invest money in better way. The agent of the company
played a fraud and made her sign documents which was in really a gift
deed in the name of the agent himself. He then disposed of the
property and misappropriated the proceeds. He had acted solely for his
personal benefit without the knowledge of the principle. It was held
that since the agent was acting in the course of his apparent authority,
the principle was liable for the fraud.
2. Partners
The relationship as between partners is that of principle and agent. The
rules of law of agency apply in case of their liability also. For the tort
committed by any partner in the ordinary course of business, all the
other partners are liable to the same extent as the guilty partner. 4
2 Mclaughin v. Pryor, (1942)
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was held that for this negligence on the part of the independent
contractors, the defendant could not be made liable.9
There are many cases of accidents caused by mechanics, repairers or
owner of workshops during test drive of the vehicles entrusted to them
by the owner of the vehicles for repairs.
In B. Govindrajulu V. M.L.A. Govindraja Mudaliar,10 after a motor
lorry was entrusted to the owner of workshop for repair, an employee
of the workshop while testing met with an accident. In this case the
owner of the lorry was not made liable because the owner of the
workshop was an independent contractor.
The servant is employed under contract of service whereas
independent contractor is employed for the service.
In Alcock v Wraith, NEILL LJ stated: where someone employs an
independent contractor to do work on his behalf he is not in the
ordinary way responsible for any tort committed by the contractor in
the course of the execution of the work.
The main exceptions to the principle fall into the following categories:
(1) Cases where the employer is under some statutory duty which he
cannot delegate.
(2) Cases involving the withdrawal of support from neighbouring land.
(3) Cases involving the escape of fire.
(4) Cases involving the escape of substances, such as explosives,
which have been brought on the land and which are likely to do
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damage if they escape; liability will attach under the rule in Rylands v
Fletcher.
(5) Cases involving operations on the highways which may cause
danger to persons using the highway.
(6) Cases involving non-delegable duties of an employer for safety of
his employees.
(7) Cases involving extra-hazardous acts.
In case of Rylands v. Fletcher, the employer could not escape the
liability for the damages caused to the plaintiff, when the escape of the
water from a reservoir got which was constructed by the defendant
from an independent contractor, flooded the plaintiffs coalmine.
TEST OF CONTROL
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In Short V.J. & W. Henderson Ltd. LORD THANKERTON pointed out four
indicia of contract of service:
(1) Masters power of selection of his servant;
(2) Payment of wages or other remunerations;
(3) Masters right to control the method of doing the work, and
(4) Masters right of suspension or dismissal.
The important characteristic according to this analysis is the
masters power of control for other indicia may also be found in a
contract for services.
This was the traditional test. In Collins v Hertfordshire HILBERY J said;
the distinction between a contract for services and a contract of
service can be summarised in this way: In one case the master can
order or require what is to be done, while in other case he can not only
order or require what is to be done, but how it shall be done.
The Supreme Court in Dharangadhara Chemical Works Ltd. v
State of Saurashtra
12
master to supervise and control the execution of the work done by the
servant is a prima facie test, that the nature of control may vary from
business to business and is by its nature incapable of any precise
definition, that it is not necessary that the employer should be proved
to have exercised control over the work of the employee, that the test
of control is not of universal application and that there are many
contracts in which the master could not control the manner in which
work was done. The English Courts have also recognised that the
control test is no longer decisive.
12 1957, AIR264, 1957 SCR 152
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(5) Whether and how far he has an opportunity of profiting from sound
management in the performance of his task.
According to the Supreme Court of United States, the test is not the
power of control whether exercised or not over the manner of
performing service to the undertaking, but whether the persons
concerned were employees as a matter of economic reality and the
important factors to be seen are the degrees of control, opportunities
of profit or loss, investment in facilities, permanency of relations and
skill required in the claimed independent operations.
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In the above case it was observed that that there was a only transfer
of service and not the transfer of servant . The general employer
himself had power to control the manner and not the hirer. Thats way
the general employer was made liable as a master.
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his employment, sometimes along the route where the accident occurred.
Secondly, the limousine, when driven by the chauffeur, was sometimes used
to pick up food for hotel staff.
As a decision of the Court of Final Appeal in Hong Kong, this interpretation is
authoritative and binding on all future cases. Therefore, it is important for
employers to have an understanding of this close connection test in order to
minimize the risk of being held liable for the actions of their employees.
Q1: How should the close connection test be applied?
A1: You should ask whether the employees tort was so closely connected
with his employment that it would be fair and just to hold the employer
vicariously liable.
Furthermore, it is
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Example
authorized a servant to deal with the 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 of these cases the servant is doing
the act which he has been 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.
Prohibited Act
When master has put a prohibition regarding the way , in which the work has
to be done and the servant does not follow it and thus as a result commits a
tortuous act within the course of employment and for the profit of the
master, then the master will be held liable for it.
And when that act is done outside the course of employment , then he will
not be made liable.
Rose vs. Plenty:
Rose v Plenty [1976] 1 WLR 141 is an English tort law case, on the issue of
where an employee is acting within the course of their employment.
Vicarious liability was tenuously found under John William Salmond's test for
course of employment, which states that an employer will be held liable for
either a wrongful act they have authorised, or a wrongful and unauthorised
mode of an act that was authorised.
Mr Plenty was a milkman under employment in Bristol by the Co-operative
Retail Services Ltd, since Easter of 1970. At the depot where he worked,
there was a prohibition on allowing children onto any vehicle, with evidence
that the employers and trade unions had attempted to stop such behavior.
There were signs to this effect, which were large and visible to employees;
one such stated:
"Children and young persons must not in any circumstances be employed by
you in the performance of your duties.
However, children still persisted in going to the depot in the hopes of being
allowed onto milk floats.Soon after he was employed, Mr Plenty was
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Whilst the majority of Lord Denning and Scarman LJ agreed upon this
interpretation, Lawton LJ dissented, arguing that precedents set in two earlier
cases, Twine v Bean's Express Ltd and Conway v George Wimpey & Co Ltd,
could not be distinguished from the instant case. In these cases, no liability
was found on the part of the employer where passengers taken by
employees - against specific instructions - were injured. Lord Denning
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distinguished the cases on the grounds that Leslie Rose had been furthering
the employee's duties, keeping Mr Plenty within the course of his
employment.
Negligent delegation of authority by the servant
If the servant negligently delegates his authority and instead of himself
carefully performing a duty allows it to be negligently performed by another
person , the master will be liable for such negligence of the servant.
In Ricketts vs. Thomas Tilling Ltd., the driver of a bus seated himself by the
side of the conductor and permitted the conductor to drive the bus for the
purpose of turning the omnibus in the right direction for the next journey .
The conductor drove the bus so negligently that it mounted the pavement ,
knocked down the plaintiff and seriously injured him. It was held that the
master was liable for the negligence on the part of the driver in allowing the
conductor to drive negligently.
Giving lift to an unauthorized third party
It was held in Twine vs. Beans Express Ltd., that the act of giving lift by a
driver to an unauthorized person in that case fell outside the course of
employment .
In Conway vs. George Wimpey and Co. Ltd., the position was similar to that
in Twines case. There, the defendants, who were
firm of contractors,
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EXCEPTIONS
ACT OUTSIDE THE COURSE OF EMPLOYMENT
Though master has control over the manners in which work is to be
done but in certain cases when a servant does any act which is not in
the course of masters business, the same is deemed to be outside the
course of employment.
In Beard v. London General Omnibus Co.,14 at the end of the
journey, the driver of the bus went to take dinner. During the
temporary absence of the driver, the conductor drove the bus for next
journey without the knowledge of driver and met with an accident. In
this case master was not made liable because the act done by the
conductor was outside the course of employment.
TRANSFER OF SERVANT WITH CONTROL
When there is only transfer of service and not the servant as seen
above in Mersey Docks and Harbour Board v Coggins and
Griffith Ltd. Then the master can be made liable but in certain cases
where there is service is transferred with the servant and its effective
control too, then master cannot be made liable and in that case he
hierer who took that effective control will be made liable.
In case of Rajasthan State Road Transport Co. v. K.N. Kothari,15 it
has been held by the Supreme Court that the transfer of effective
14
(1900) 2 Q.B. 530. Also see Llkiw v. Samuels,(1963)
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control over servant, would make the transferee of the vehicle liable
for vicarious liability. In this case, the RSRTC hired a bus and a driver
for running a bus on a specified route. The RSRTC engaged a
conductor, who managed the bus and also exercise control over driver.
It was held that for an accident cause by the driver hirer RSRTC was
made liable vicariously and not the original owner who transferred
such control.
In some hospital cases also, in certain circumstance the master
are not made liable for the negligence of staff surgeon because they
lack power of control over them.
In Hillyer v. St. Bartholomews Hospital,16 the hospital authorities
were not made vicariously liable for the negligence of their staff
involving professional care and skill, because they lacked the power of
control over them.
CONCLUSION
Vicarious Liability deals with cases where one person is liable for the
acts of others. In the field of Torts it is considered to be an exception to
the general rule that a person is liable for his own acts only. It is based
on the principle of qui facit per se per alium facit per se, which means,
He who does an act through another is deemed in law to do it
himself. So in a case of vicarious liability both the person at whose
behest the act is done as well as the person who does the act are
15
A.I.R. 1997 S.C. 3444
16
(1909) 2 K.B. 820
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liable. Thus, Employers are vicariously liable for the torts of their
employees that are committed during the course of employment. So a
master is liable for the acts of his servant if the act is done in the
course of employment.
The servant and independent contractor are under contract of service
and contract for service respectively. The traditional view to distinguish
between the two was the control test exclusively. But in modern
scenario this is not sufficient test as there is no single test. The
significant outcome can be achieved only by balancing different factors
with the help of different tests like:
Bibliography
BOOKS REFERRED
WEBSITES REFERRED
www.lawteacher.net/Tort-law
www.legalservicesindia.com/article/vicarious-liability-in-india-1634-1.htn
www.lawmentor.co.uk/home/resources/essay-on-vicarious-liability.html