Vicarious Liability

I. Introduction and Fundamental Principles #

Vicarious Liability (VL) is a doctrine in the law of torts under which one person is held legally responsible for the wrongful acts (torts) committed by another person, even though the former did not commit the act. The liability is imputed by law, not directly created by the wrongdoer’s actions.

The foundation of this doctrine rests upon the common law maxim, “Qui facit per alium facit per se” (He who acts through another acts for himself), but is primarily justified by the principle of “Respondeat superior” (Let the master answer).

A. Rationale for the Doctrine #

1. Deep Pocket Theory: The employer (master) usually possesses greater financial resources than the employee (servant) and is better positioned to bear the loss or distribute it through insurance.
2. Deterrence and Enterprise Risk: The law imposes liability on the employer because the employee’s act is deemed a part of the risk inherent in running the business or enterprise.
3. Benefit Principle: Since the master derives benefit from the servant’s work, the master must also bear the burden of the servant’s wrongful acts committed during that work.

II. Essential Requirements for Vicarious Liability #

For liability to arise, two fundamental elements must be established:

A. Special Relationship between the Tortfeasor and the Defendant #

The following relationships typically attract vicarious liability:

1. Master and Servant (Employer and Employee): The most common relationship.
2. Principal and Agent: The principal is liable for acts done by the agent within the scope of authority.
3. Partners: All partners are vicariously liable for the torts of any one partner committed in the ordinary course of the firm’s business (Section 25, Indian Partnership Act, 1932).

B. The Tort Must be Committed in the Course of Employment #

This is the most contested requirement. The master is only liable if the tortious act is so closely connected to the employment that it can be regarded as a method, albeit an improper one, of performing the work.

III. Advanced Topics and Nuances #

A. Distinction between Servant and Independent Contractor #

This distinction is crucial because a master is typically not liable for the torts of an Independent Contractor, who is hired to produce a result but not controlled regarding how to achieve it.

Feature	Servant (Employee)	Independent Contractor
Test Applied	Control Test / Integration Test	Result Test
Control	Master controls how the work is done.	Contractor controls how the work is done.
Integration Test	Work is integral to the business (e.g., driver in a transport company).	Work is accessory to the business (e.g., outsourced repairman).

B. The Doctrine of “Course of Employment” #

An act is within the course of employment if:

1. It is an authorized act performed in an unauthorized or negligent mode (improper mode doctrine).
2. It is an act that is necessary or incidental to the performance of the authorized act.

The “Frolic of his own” Rule (Deviation) #

If a servant deviates significantly from the path or scope of work for his own personal business or pleasure, the act is considered a frolic of his own, and the master is not liable.

• Storey v. Ashton (1869): A driver diverted for the manager’s personal errands. Deviation was significant; master not liable.
• Joel v. Morison (1834): If the servant is merely “going a little out of the way,” the master remains liable. The courts distinguish between a “detour” (liable) and a “frolic” (not liable).

C. Liability for Willful Wrongdoing or Criminal Acts #

A master is liable for the servant’s deliberate or criminal act (e.g., assault, fraud) if the act is committed as a means, even a misguided or criminal means, of executing the task assigned.

• Lister v. Hesley Hall Ltd. (2001) (UK House of Lords): An employer was held vicariously liable for the sexual assault of children by a warden because the act was closely connected with the responsibilities entrusted to him, such as maintaining close contact and care for the children.

D. Liability for Lent Servants (Doctrine of the Loaned Employee) #

When a master (A) lends their servant (B) temporarily to another employer (C), the question arises: who is liable for B’s tort? The law presumes that the general employer (A) remains liable. To shift liability to the temporary employer (C), it must be conclusively proven that:

1. A entirely relinquished all control over the employee, and
2. C assumed total and authoritative control over the employee’s work and method of working.

IV. Indian Judicial Precedents (FIRAC) #

Case 1: Smt. Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd. (1977) #

Aspect	Description
Facts	A company director was driving a company car, carrying a shareholder/employee (Udeshi), for a business trip. An accident occurred due to the director’s negligence, resulting in Udeshi’s death. The director was also a shareholder.
Issue	Was the Company (Master) vicariously liable for the director’s (Servant/Agent) negligent driving, and was the director acting within the scope of his employment?
Rule	The Supreme Court held that the test for the master-servant relationship and “course of employment” is applied strictly. The master is liable if the servant’s act is done in the course of service, even if contrary to orders or negligently executed.
Application	The court found that the journey was undertaken to discuss company business with the deceased shareholder/employee. Thus, the director, even though a high-level official, was performing an act in furtherance of the company’s business.
Conclusion	The Company was held vicariously liable for the director’s negligence, as the act fell within the “course of employment.”

Case 2: State of Rajasthan v. Mst. Vidyawati (1962) #

Aspect	Description
Facts	A government jeep, maintained for the Collector of Udaipur, was being driven back from a workshop by a temporary driver. Due to the driver’s rash and negligent driving, he struck and killed a pedestrian.
Issue	Could the State be held vicariously liable for the negligent driving of its employee, or could it claim the defense of Sovereign Immunity?
Rule	The Supreme Court firmly rejected the application of the absolute English Sovereign Immunity doctrine in India. It reiterated that the State’s liability for tortious acts of its servants is the same as that of any other employer, where the act is not an exercise of sovereign power.
Application	The act of maintaining and driving a vehicle for the use of a Collector was deemed a non-sovereign, administrative/jural function. Therefore, the principle of respondeat superior was fully applicable.
Conclusion	The State was held vicariously liable for the driver’s negligence, marking a significant step toward governmental accountability for the non-sovereign torts of its employees.