Done by : Adhunika, Manasa, Preethi, Neha and

Lavina
 VICARIOUS LIABILITY
 In tort law liability is generally personal; i.e.,
liability is generally linked to a breach of one’s
(own) duty
 But in vicarious liability, there is an attachment of
responsibility to a person for harm or damages
caused by another person
 That is, X is held liable for the tort of another
person, say Y, in the absence of personal fault
on the part of X.
 X is liable without proof of fault on X’s part
 X’s liability arises from her/his relationship with
the tortfeasor Y.
 Also called “imputed liability”

Vicarious liability: Liability arising out of
relationship to the wrong doer.


Master & Servant

Principal & Agent
Partners in a Firm
Guardian & Ward




History of Vicarious Liability
THREE STAGES
1.In times of slavery, master had complete
liability over acts of slaves. Heads of
families were considered
masters/patrons of their family
members. Called “Adiars”
2.
3.16th and 17th century: Abolition of slavery.
“Command Theory” came into force.
4.
5.“Scope of employment” replaced
“command theory”. Master liable only if
he gave implied consent from the
general authority he gave to the services
of servant.
 Rationale behind vicarious
liability
 “qui facit per alium facit per se”
 Meaning: He who acts through another is deemed to act in
person


 Benefits and Burdens of the enterprise : Imposes liability for

losses created by an activity on person who benefits from
it.

 The person who is held vicariously liable is usually more
financially capable to pay damages


 The liability arises from the viewpoint of the victim who ought
to be compensated in one form or the other due to injuries
sustained.

 Deterrence/Accident Prevention - Employer is in the best
position to adopt safe practices to prevent accidents.

DOCTRINES
 “respondeat superior” [Latin: Let the master answer. ]


. The doctrine makes the employer responsible for a

lack of care on the part of an employee in relation to
those to whom the employer owes a duty of care. For
respondeat superior to apply, the employee's
negligence must occur within the scope of her
employment.
 For example, if the driver of a gasoline delivery truck
runs a red light on the way to a gas station and
strikes another car, causing injury, the gasoline
delivery company will be responsible for the
damages if the driver is found to be negligent.



“family car doctrine”


The doctrine is based on the assumption that

the head of the household provides a car for
the family's use and, therefore, the operator
of the car acts as an agent of the owner.
When, for example, a child drives a car,
registered to a parent, for a family purpose,
the parent is responsible for the negligent
acts of the child at the wheel.



Two conditions to be satisfied by the plaintiff for
vicarious liability


Establish relationship between master

and servant

Establish that the wrong was
committed during the course of
employment

Master - Servant Relationship
 WHO IS A MASTER?
 A master is a person who engages another to work
under his direction and control in return for a wage
or salary.


 WHO IS A SERVANT?
 A servant is a person employed by another to do work
under the directions and control of his master.


Relationship between master and
servant
Traditional tests to establish master servant
relationship
Master’s power to select the servant
Payment of wages or other remuneration
Master’s right to control the method of doing the
work
Master’s right of suspension or dismissal
New age tests
Control test is a product of the primitive society
The employer has the competence to instruct the
workmen as to the method to be followed in the
performance of his work.
Recent cases - this test cannot be strictly applied.
Right of control of method of work doesn’t exist.
Test to determine the relationship is ‘hire’ &
Absence of relationship between master &
servant
Employer & independent contractor
Employer & servant of contractor
Employer & delegate of the servant
Fellow Servant (i.e. servant who is higher in
hierarchy not liable for acts of servant lower
in hierarchy)
In cases of domestic relations, parent is not
taken as “master” of child etc.
Independent contractor & servant
Independent Contractors : Who undertakes to
produce a given result, but in actual
execution is not under the order or control of
the person for whom he does it and may use
his own discretion in things not specified
beforehand.
Contact of services and contract of service

 Independent


 Servant Contractor
 Contract of Service  Contract for services
 Under the supervision  The contractor is his
of the master own master
 Continuous, dominant,  Exercise his own
detailed control on discretion
every step 

 Works for wages  Works for fee or

 Employed on a commission
permanent basis  Employed on a casual
Example: Chauffer basis.
Example: Taxi-driver

Exceptions in Independent
Contractor
The employer is liable in the following cases:


Contractor is employed for the purpose of an

illegal act
Where the tortious act is authorized by the
employer
Where strict liability of the employer arises on
account of extra hazardous work undertaken
 Case: Rylands v. Fletcher 1868 LR 3 HL 330

Contractor negligently employed

 Case: Robinson v. Beaconsfield Rural council

1911 2 Ch 188

 2) In the "Course of employment "
Course of employment is a legal consideration of
all circumstances which may occur in the
performance of a person's job, especially during a
period of time where specific objectives are given by
the employer to the employee are being fulfilled.
Master is liable for every tort he authorizes the

servant to do.
Not limited to the acts he authorizes.

He is liable for torts of the servant that is done in the

course of employment.
Act is deemed to be done in the “course of

employment”
ØWhen wrongful but authorized act is done
ØWhen an authorized act is done in a
wrongful way
Is employer liable? Use the
following…
Where the employer expressly prohibits a particular


conduct, the employee’s act in breach of the

prohibition is generally considered to be outside
the scope of the employee’s services - employer
not liable


• However, an act in defiance of a prohibition which

deals with CONDUCT WITHIN SPHERE (i.e. : how,
when, where etc tasks are performed) OF
EMPLOYMENT will not be outside the scope of
employment - the employee would be doing the
right services but in the wrong way: employer is
liable


• A master will not be liable for the servant’s

negligence in doing something which he was
Course of employment :
CASES
 Limpus v. London General Omnibus Co. 1862 –
driving rashly– to overtake competitor’s bus –
LIABLE
 Beard v. London General Omnibus Co. [1900] 2
QB 530
 -conductor driving the bus in absence of
bus driver-NOT LIABLE
Pushpabai Purushottam Udeshi v. RanjitGinning

& Pressing Co. Pvt Ltd. AIR 1977 SC 1735

 Manger –driving in Maharashtra- giving lift
to someone in company car – LIABLE
Crook v. Derbyshire Stone Ltd. (1956)2 All ER

447 Driver crossed the road to obtain

refreshments– merely permitted to do, not the
1. Lending of Servant
Question
 Whether when a general employer lends
his servant with or without any machine
under a contract or otherwise to another
person there is any change of master for a
period the servant is doing the work of that
other person?

  When the servant commits a tort during the period his
services have been lent, for the person wronged can
make only the real master vicariously liable, with
certain exceptions.

Principles
1. Strong presumption that the general employer continues to
be the master.
2. Burden is on the general employer to prove there is
transfer of service.
3. Burden can be discharged only by proving that the entire
control over the servant was transferred to the hirer and
that the servant had expressly or impliedly consented to
the transfer
4. A term in the contract between the general employer and
the hirer stipulating as to who shall be the master, though
relevant for determining inter se liability is not conclusive
against the person injured by the tort of the servant.

 Case Laws
 Mersey Docks & Harbour Board V. Coggins & Griffith
(Liverpool) Ltd (1946) 2 All ER 345

Facts: This was where an employee operating a
crane was hired out to another employer. The crane
operator was negligent, and his original employer
was held vicariously liable; not the company he was
hired out to – as the new employer didn’t have to
power to control “how to do” work. Only the Board
paid his wages and had the power of dismissal.
 Karuppan Bhoomidas Vs Port of Singapore Authority
(1978) 1 All ER 956 (PC)
Facts: A member of a gang of stevedores was killed in


an accident caused by the negligence of a fellow

workman while the gang was loading a ship. The
gang was employed by the port authority. The
plaintiff, who was the administrator of the deceased's
estate, brought an action against the port authority
for damages. However, Port Of Singapore was held
Testing your understanding
 Where a vehicle is let out on hire with the
service of a driver and an accident occurs due
to negligence of the driver causing personal
injuries to the third person. How would you
determine who the master is for the purpose
of vicarious liability?

1.Whether the driver in doing of the negligent act was
exercising the discretion given to him by his regular
employer or
2.Whether he was obeying a specific order of the hirer
for whom, on his employer’s direction, he was
using the vehicle.
3.Ordinarily the driver exercises his own discretion which
is vested in him by his regular master. But, if the
hirer intervenes to give directions as to how to
drive for which he posses no authority and the
driver pro hac vice (for the occasion) complies
with them and an accident occurs resulting in an
injury to the third party, the hirer is liable.

2. CASUAL DELEGATION
Samson v. Aitchison 1912 AC 844


Pratt v. patric (1924) 1 KB 488



Hewit v. Bonwin (1940) 1 KB 188



Smith v. Moss (1940) 1 KB 424

 3. Wilful wrongful doing
 Limpus v. London General Omnibus Co. 1862 H&C 526
 Lloyd v. Grace Smith & company 1912 AC 716
 Mrs. Lloyd had 2 cottages - consulted a firm of solicitor -
advice on property matters. Managing clerk of firm advised
her to sign 2 documents. But they were gift deeds in his
name itself. Agent was acting in the course of employment,
showing apparent authority. Company liable.
 Joseph R Ltd v. Craig (1919) 1 CH 1
 Garbage disposal, not done@ the correct place but on
the plaintiff’s property—master not liable.
 State bank of India v. Shyama Devi (1978)3 SCC 399
 Plaintiff’s husband gave some amount to friend (also
bank’s employee). No receipt obtained. The friend
misappropriated the funds. SC held that he did not act as
bank employee but as a friend. Hence he was not an
agent, bank not liable.
4. THEFT BY SERVANTS
Morris v. C.W. Martin and sons (1965)2 All ER
725 CA
 A firm of cleaners was held vicariously
liable to a customer whose fur was stolen
by one of its employees.


Thomas Saunders Partnership v. Harvey,

(1990)7 TLR 78


Ross v. Hartman (1944) 139 F 14

 5. ASSAULT BY SERVANTS
Keppel Bus Co. Ltd v. Sa’ad bin Ahmad
(1974)2 All ER 700PC


Petterson v. Royal Oak Hotel Ltd 1948 NZLR

136
 Nightclub bouncer-committed assault- with
the aim of the man he assaulted should leave the
premises –perceived to be furthering interests of
employer. EMPLOYER LIABLE
Dyer v. Munday (1895) 1 QB 742
 Servant was restricted from entering master’s
property. In an attempt to repossess the property,
the servant assaulted the plaintiff, employer
liable.
6. Hospital cases
Hillyer v. St. Bartholomew’s hospital
Not VL because lack power of control
1909 2 KB 820
FACT: Anesthetic doctor, patients hand
touched by hot tin can, right arm internally
burnt, because someone pressed-traumatic
neuritis & paralysis
Hospital defendant-the only duty it owed was
good selection of staff- denied negligence
Hospital not liable.
However it’s an old case, a different principle
applied today.
Cassidy v. Ministry of Health 1951 1 All ER 574
 Patient suffered contraction of fingers in left
hand
 Operated by doctor F in hospital (Defendant)
 After operation and bandage for 14 days,
patient complained of pain
 No action taken by house surgeon in the
absence of Dr. F
 HOSPITAL LIABLE
Judgment: It does not matter if he is
employed for contract of service or
contract for service, depends on who
employs him. If patient employs, hospital
not responsible. Hospital employs
Hospital Liable
PRINCIPAL-AGENT
A p rin cip a l is a p e rso n –le g a lo r n a tu ra l–w h o
a u th o rize s a n a g e n t to a ct to cre a te o n e o r m o re
le g a l re la tio n sh ip s w ith a th ird p a rty. T h is b ra n ch o f
la w is ca lle d a g e n cy a n d re lie s o n th e co m m o n la w
p ro p o sitio n q u i fa cit p e r a liu m , fa cit p e r se ( La tin
" he who acts through another , acts personally " ).

C A SES:
Llo yd v. G ra ce S m ith & C o .
S ta te b a n k o f In d ia v. S h ya m a D e vi
O rm ro d v. C ro sville M o to r S e rvice Ltd .
PARTNERS IN A FIRM
The rules of the law of agency apply in the
case of partnership liability.
All other partners are liable to the same
extent as guilty partner
The liability is joint and several.
Hamlyn v Houston & Co. 1903 1 KB 81
Partner of defendant firm, induced the
plaintiff’s clerk to divulge secrets of the
employer (plaintiff)- which amounts to
breach of contract.
All partners liable for the tort of inducing
breach of contract