Done by : Adhunika, Manasa, Preethi, Neha and Lavina

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

Vicarious liability: Liability arising out of relationship to the wrong doer.

Master & ServantPrincipal & AgentPartners in a FirmGuardian & Ward

THREE STAGES1. 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. 16th and 17th century: Abolition of slavery. “Command Theory” came into force.

3. “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.

History of 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.

Rationale behind vicarious liability

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

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.

Master - Servant Relationship

Traditional tests to establish master servant relationship

Master’s power to select the servantPayment of wages or other remunerationMaster’s right to control the method of doing the workMaster’s right of suspension or dismissal

New age testsControl test is a product of the primitive societyThe 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’ & ‘fire’

test.

Relationship between master and servant

Employer & independent contractorEmployer & servant of contractorEmployer & delegate of the servantFellow 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.

Absence of relationship between master & 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 contractor & servant

Servant Contract of ServiceUnder the supervision

of the masterContinuous, dominant,

detailed control on every step

Works for wagesEmployed on a

permanent basisExample: Chauffer

Contract for servicesThe contractor is his

own masterExercise his own

discretion

Works for fee or commission

Employed on a casual basis.

Example: Taxi-driver

Independent Contractor

The employer is liable in the following cases:Contractor is employed for the purpose of an

illegal actWhere the tortious act is authorized by the

employerWhere strict liability of the employer arises on

account of extra hazardous work undertaken Case: Rylands v. Fletcher 1868 LR 3 HL 330

Contractor negligently employedCase: Robinson v. Beaconsfield Rural council

1911 2 Ch 188

Exceptions in Independent Contractor

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”When wrongful but authorized act is doneWhen an authorized act is done in a wrongful

way

2) In the "Course of employment "

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 merely permitted to do and does so for his own purposes.

Is employer liable? Use the following…

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. Ranjit Ginning & 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 objective hence--NOT LIABLE

Course of employment : CASES

QuestionWhether 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?

1. Lending of Servant

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 LawsMersey Docks & Harbour Board V. Coggins & Griffith

(Liverpool) Ltd (1946) 2 All ER 345Facts: 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 NOT LIABLE.

Testing your understandingWhere 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 DELEGATIONSamson 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

Limpus v. London General Omnibus Co. 1862 H&C 526Lloyd 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.

3. Wilful wrongful doing

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

4. THEFT BY SERVANTS

5. ASSAULT BY SERVANTSKeppel Bus Co. Ltd v. Sa’ad bin Ahmad

(1974)2 All ER 700PC

Petterson v. Royal Oak Hotel Ltd 1948 NZLR 136Nightclub 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 742Servant was restricted from entering master’s property. In an attempt to repossess the property, the servant assaulted the plaintiff, employer liable.

Hillyer v. St. Bartholomew’s hospital Not VL because lack power of control1909 2 KB 820FACT: 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.

6. Hospital cases

Cassidy v. Ministry of Health 1951 1 All ER 574Patient suffered contraction of fingers in left

handOperated by doctor F in hospital (Defendant)After operation and bandage for 14 days, patient

complained of painNo action taken by house surgeon in the absence

of Dr. FHOSPITAL LIABLEJudgment: 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-AGENTA principal is a person–legal or natural–who authorizes an agent to act to create one or more legal relationships with a third party. This branch of law is called agency and relies on the common law proposition qui facit per alium, facit per se (Latin "he who acts through another, acts personally").

CASES:• Lloyd v. Grace Smith & Co.• State bank of India v. Shyama Devi • Ormrod v. Crosville Motor Service Ltd.

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 81Partner 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

PARTNERS IN A FIRM