Vicarious is derived from a Latin noun ‘vicis’, which means alteration, and Liability in layman terms means, ‘responsible for something’. Vicarious Liability means the liability of a person who didn’t actually participate in an act/omission that caused legal damage to another person, but rather have a superior relationship with the person who has caused the harm. It is also known as ‘Imputed Negligence’. One of the most common examples of a Vicarious Liability is a Master-Servant liability. For example, ‘X’ being a master, orders his servant ‘Z’ to light up the bar-be-que stove in his garden. While doing so Z negligently lit the stove under a tree which was placed in X’s neighbour, C’s garden. That tree catches fire and half of the C’s garden get burned. In this case X will be vicariously liable.
The concept of Vicarious Liability works on two Principles:
- Quit facit per alium, facit perse: a legal maxim which means, ‘He who does an act through another is deemed to do it himself’.
- Respondeat Superior: a legal maxim which means, let the superior be held responsible.
Origin of Vicarious Liability
Vicarious Liability as a legal concept in modern India owes its origin to English Common Law through the efforts of Sir Henry Mane and Sir James Stephens, British Empire brought common law and Torts to India[ii]. The crown or the government had the immunity which was once possessed by the king- encapsulated in the maxim that “the King can do no wrong”[iii]. That means only the wrongdoer or as in this case, the servant of the government was held liable, even if the act was instructed by the crown. The British empire was expanding and so was the duties of government, thus increase in the population of servants. The demand for justice also increased, and hence Crown Proceeding act, 1947 was passed, under which Crown was equally held liable[iv].
Justification of Imposition of Vicarious Liability
In the case of Farwell vs Boston Rail Road Corp[i]. the Supreme Court said that “This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it. If done by a servant, in the course of his employment, and acting within the scope of his authority, it is considered, in contemplation of law, so far the act of the master, that the latter shall be answerable civiliter”. We have to also understand that in a vicarious relationship, the superior authority is wealthier and more superior than the latter, vicarious liability encourages prevention of accident by giving the former financial interest in encouraging his latter to take care for the safety of others. It works on the morality that the former makes a profit from a latter and hence, he should also be liable for any losses those activities lead to.
Elements of Vicarious Liability
Three elements need to be proved, to make someone vicariously liable. Those elements are:
- The person who is liable for this tort must have a superior legal relationship with the person committing the tort.– First element talks that the person who is liable for this tort must have a superior legal relationship with the person committing the act, which establishes that a relationship should be present amongst the accused party. For example a master-servant or employer-employee relationship etc.
- The act done must be unlawful or cause legal damage – Second element talks that the act done must be unlawful or cause legal damage, which establishes that even though there is a relationship, there must also be legal damage to the complainant. The thing he is pleading for.
- The legal damage caused must be committed during the course of the employment or the legal relationship. -Third element talks that the legal damage caused must be committed during the course of the employment or the legal relationship, this is an aggravated explanation for the relationship. It says that even though there is a relationship, the act done must be during the course of the relationship, which can also be interpreted that an instruction or order must be given by the superior authority to the person committing the act.
Presence of all three elements must be there to make someone vicariously liable.
Let’s Analyze it through Illustrations.
- Illustration 1. ‘X’ is the employee of ‘Z’. ‘X’ breaks B’s car window, causing him a legal damage.
- Illustration 2. ‘X’ is the employee of ‘Z’. ‘X’ breaks B’s car window because he got slipped while he was on his way to purchase vegetable for restaurant, as instructed by ‘Z’.
In Illustration 1. we can see that first element i.e. relationship is present, X is the employee of Z, in which Z is the superior authority. It also fulfils the second element i.e. the act of X causes legal damage to B. But Illustration 1 does not fulfil the third element i.e. even though X and Z were in an employer-employee relationship, X acted out of the course of his employment.
In fact, the only difference between Illustration 1 and Illustration 2 is the fact that in Illustration 2, X was doing the job as instructed by Z, means working under his course of employment and while that he accidentally slipped and broke B’s car window hence fulfilling all the elements of Vicarious Liability.
Types of Relationships under Vicarious Liability
Master and Servant Relationship
It’s one of the most common relationships used to describe Vicarious Liability. Master is the person who employs a servant and authorizes lawful orders and directions. A servant is a person employed by a Master, who acts as per the lawful order or direction is given by his master. Any unlawful act or any act that has caused legal damage to other people will make both master and servant vicariously liable if the act was done under the course of employment and authorized by the master.
For example, X being a master orders his servant B to park his car and while doing so B accidentally hits and damage Z’s car. In this scenario, X will be vicariously liable, as the accident occurs while the servant was on his course of employment.
In Gregory vs Piper[v], Piper ordered his servant to put rubbish across a pathway so that it will block Greogory’s pathway, with all due care the servant did as per instructed by his master, but with time the rubbish into Gregory’s property. In this case, the defendant Piper was held liable.
Principal is the person, who chooses his agent, delegates his authorities to him and take the benefits out of the act of the agent. An Agent works by the authority of his principle and for his principle. Hence, the principle must be held liable to bear the losses of the agent.
In Castillo v. Case Farms of Ohio[vi], The plaint were migrant workers who were recruited by America’s Tempcorps to work in Case Farm. The condition was not good and as the court describes distressing and deplorable”. One of the issues was whether ATC was an agent of Case Farm. It was held that ATC was indeed an agent of Case Farm and Case farm should be liable to compensate the workers.
Husband and Wife Relationship:
Relationship of Husband and Wife is based on legal Doctrine ‘feme covert’ which means that the husband and wife is one single entity and that entity was the husband. The common law liability of a husband for the torts of his wife is not a personal liability in the sense that his liability for his own torts is personal to him; it is because he is entitled to the personality and the right to enjoy of the realty of the wife, and because she could not be sued[vii]. The cases also hold that this liability depended upon on paper marriage. Even though the liability of the husband includes torts occurring before marriage as well as those which arise during coverture, he is liable only while the parties remain married to each other. His liability ceases if she dies before him, or if the marriage is terminated by a decree of divorce[viii].
As per Indian statute, Partnership is defined as, “relation between persons who have agreed to share the profit of business carried on by all or any one of them acting for all”[ix]. We can see that financial interest has been shared amongst each partner. This section also states that “all or any one of them acts for all”. Hence, we can say that they all are an agent of the firm, which is also described under section 18 of this act. This makes Partners to vest all responsibilities and liabilities of an agent. Each and every partner of the firm is jointly as well as severally liable for all the acts of the firm. If during any course of business, partner with his wrongful act causes legal damage to a party, then the firms become liable for it[x].
Nature of Vicarious Liability
Vicarious Liability is civil in nature in most of the cases, in a criminal scenario, a person will be vicariously liable, if he is a party to the offence. The essence of vicarious liability in criminal law is that a person may be held liable as the principal offender that is the perpetrator of a crime whose actus reus is physically committed by someone else[xi]. In such cases, both superior authority and the person committing the tort will hold liable.
For example, X hires a mercenary to assassinate B. The mercenary assassinates B and while running away was caught by the neighbours. In this case, both X and the mercenary will be criminally charged.
[i] Farwell vs Boston Rail Road Corp. 4 Metcalf (45 Mass.) 49 (1842). Supreme Court of Massachusetts
[ii] Shubhendu, “Vicarious Liability- Concepts, Origins and Relations governed by it”, Legal Bites (May 24, 2018) https://www.legalbites.in/vicarious-liability/
[iii] Paul F Scott, “The National Security Constitution”, p.266,267, (Hart Publishing, 2018.)
[v] Gregory vs Piper (1829) 9 B & C 591
[vi] Castillo v. Case Farms of Ohio, 96 F. Supp. 2d 578 (W.D. Tex. 1999)
[vii] Wolf v. Keagg. 33 Del. 362, 136 Ad. 520 (1927).
[viii] Eileen Ellis Murphy, Vicarious Liability of Husband for Torts of his Spouse, 4 U. Miami L. Rev., p.360 (1950)
[ix] Indian Partnership act, 1932, Section 4.
[x] Indian Partnership act, 1932, Section 27.
[xi] Ashwini Priya, “Vicarious Liability under Criminal Law in India”, ISSN Vol.3 Issue.3, p215. (July, 2016)
Student, Manipal University, Jaipur
Aniket has a keen interest over criminology and criminal trials. He’s exploring his interests in the field of law and wants to become a great criminal litigator. For any Clarifications, feedback, and suggestion, you can reach him at firstname.lastname@example.org