Vicarious liability, a fundamental doctrine in the realm of tort law, is a legal concept that has far-reaching implications for individuals, businesses, and institutions across the globe. Rooted in the principles of justice, fairness, and accountability, vicarious liability addresses a critical question: should one party be held responsible for the wrongful actions of another? This legal doctrine provides a nuanced response to this query, serving as a cornerstone of modern legal systems.[1]

At its core, vicarious liability holds one party accountable for the actions or omissions of another, typically within the context of an employment or agency relationship. The central premise is that when an individual or entity (the "principal" or "employer") engages another party (the "agent" or "employee") to act on their behalf, they must bear the consequences of the agent's actions during the course of their authorized activities. This doctrine reflects the underlying belief that it is just and equitable for those who benefit from the services or labor of agents to also bear the risks associated with those agents' actions.[2]

The historical origins of vicarious liability can be traced back to English common law, where it initially emerged as a response to the limitations of personal responsibility and the desire to provide redress to victims. Over time, vicarious liability has evolved, adapting to the changing dynamics of society, business, and employment relationships. This evolution has seen its incorporation into statutory frameworks and the broadening of its application beyond traditional master-servant scenarios.

Key elements underpin the application of vicarious liability, including the nature of the relationship between the principal and agent, the scope of employment or agency, and the foreseeability of the wrongful act. Courts around the world grapple with these factors when determining whether vicarious liability should be imposed in a given case.

In practice, vicarious liability extends its influence into numerous sectors, including healthcare, corporate governance, education, and beyond. Employers must carefully navigate the intricacies of this doctrine, implementing measures to minimize the risk of employee misconduct and to protect both their interests and those of the public. Victims, in turn, rely on vicarious liability as a means of seeking compensation for harms suffered due to the actions of individuals or entities they may not have directly interacted with.

This introduction sets the stage for a comprehensive exploration of vicarious liability, delving into its historical development, legal principles, practical implications, and its role in shaping the broader landscape of accountability and justice in modern society.

Doctrine Of Vicarious Liability:

• The "Master and Servant liability" is a term used to describe the well-established vicarious liability doctrine, the obligation taken on in place of or in addition to another.
   
• Vicarious liability is a legal theory in tort law that establishes the situation where one party, usually an employer, is held accountable for the wrongdoings or negligence of another party, frequently an employee, even though the employer did not directly take part in the harmful act.
• This philosophy is based on the notion that the employer gains from and has control over the employee's activities while they are doing their duties.
   
• In order for vicarious liability to be applicable, the wrongdoing must take place within the course and scope of employment, which means it must be properly related to the employee's job responsibilities and approved by the employer. Except when the activity is intrinsically harmful, independent contractors are not normally held liable.
   
• The doctrine serves to ensure that there is a financially responsible party capable of compensating the victim, providing a remedy especially in cases where the employee lacks the resources to adequately cover the damages caused.

The liability arising is discussed based on the different kinds of relationship, where they can be classified into 3 types which are as follows:

• Relationship between that of a Principal and the Agent.
• Relationship between that of partners of a firm.
• Relationship between the master and that of a servant.

Principal and Agent:
It can be claimed that it is founded on the general tenet "Qui facit per alium facit per se," which states that an agent's action is considered to be the principal's action. Here, when one person is given permission to commit a crime by another, both that person and the one who gave the permission will be held accountable.

The person authorizing may declare or imply their authority. When an agent violates a duty in the course of performing that duty, even though the principal does not typically direct his agent to do so, the principal is also held accountable for that violation.[3]

In the case of Lloyd v Grace, Smith &Co[4]., The court defined the parameters of tort vicarious liability. In this instance, a legal assistant's assistant stole money from clients. Due to the fact that the clerk's acts were unapproved and outside the scope of her employment, the court determined that the firm was not vicariously liable. For vicarious liability to apply, the Court underlined the significance of acts occurring within the permitted scope of employment, setting a standard for subsequent cases involving employee misbehavior.

In the case of Ormrod v. Crosville Motor Service Ltd.,[5] In one instance, the owner of the vehicle asked someone to drive it to Monte Carlo so that he could later travel there with pals for a holiday. However, the driver struck a bus carelessly, resulting in damage and casualties. The car owner was held accountable, according to the Court of Appeal. Despite the owner giving express consent for the trip, the driver nevertheless received personal benefits from driving the vehicle, rendering the owner vicariously liable for the collision as a result of the driver's acts.

Partners:
Even a partnership between two people is considered to be a principle and agent relationship. If a partner violates the law, the entire partnership is responsible for the violation.[6]

For instance take the case of Hamlyn v Houston & Co., [7] where two partners of the firm are operating in the course of their employment and one partner of the firm bribed the plaintiff's clerk and persuaded the clerk to break the contract. In light of the relationship between the two partners, which is referred to as one of a principle and agent, it was decided that both partners are responsible for the tort committed by one partner.

Master and Servant:
This refers to the master-servant relationship in which the servant obediently carries out the master's commands. If a servant does an unlawful conduct while doing their duties, the master is responsible for that action. The master is then also responsible for the wrongdoing in addition to the servant. Here, it is claimed that the master himself carried out the act that the servant did.

The adage "Respondeat Superior," which translates to "let the principal be liable," is used to explain the theory of the master's accountability for a tort committed by his servant. It can be claimed that whomever does an act through another is presumed to have done so through the master himself.[8]

The two essentials to be fulfilled by the for the liability of master to arise are

• The tort was committed by the servant.
• The servant committed the tort in the course of his employment.

Servant: A servant is a person who is engaged by another person to perform a certain task under the master's supervision and in accordance with the master's instructions. In principle, an independent contractor's actions are not subject to liability; only a master would be responsible for a servant's actions.

The three tests to determine the relationship between master and a servant:

• Hire and fire test
• Integration test
• Multiple test

Distinguishing Servant And Independent Contractor

When it comes to the way the task is to be done, a servant is an agent who must be under the employer's control and supervision. A servant, commonly an employee, works under direct supervision and control of an employer, following specific instructions and schedules. Employers have authority over both what tasks the servant performs and how they are done. [9]

In contrast, an independent contractor operates autonomously, hired to complete specific projects with minimal oversight. They retain control over their methods and are engaged for specialized skills or tasks. While servants are integrated into the core operations of a business and often receive benefits, independent contractors are self-employed, responsible for their own taxes and benefits.

Employers are vicariously liable for servants' actions within the scope of employment, as they act on the employer's behalf. However, this liability does not extend to independent contractors, as they are considered separate entities, accountable for their own work. Thus, the key distinctions lie in the level of control, integration into the business, tax responsibilities, and the extent of liability, highlighting the fundamental differences between these two classifications of workers.[10]

Liability Of Employer For Acts Of An Independent Contractor

An employer's liability for acts committed by an independent contractor is generally limited compared to that of employees. Independent contractors are considered separate entities from the hiring organization. As a result, employers are typically not held directly responsible for the contractor's actions or negligence in the same way they would be for employees.[11]

If an independent contractor fails to fulfill their obligations or causes harm to others, the contractor is usually personally liable for any resulting legal consequences or damages. However, there are exceptions to this rule. Employers can be held liable for the actions of an independent contractor if they exercise a high degree of control over the contractor's work, if they hire a contractor known to be incompetent or dangerous, or if the work the contractor is hired for is inherently risky, such as construction or hazardous materials handling. [12]

In such cases, the employer may share liability or be held fully responsible for any wrongdoing. It's crucial for employers to clearly define the terms of the contractor relationship and understand the legal boundaries to mitigate potential liability issues.

Exceptions To The Employers Liability For Independent Contractor

Exceptions to the general rule of employers being liable for the actions of their employees do exist when it comes to independent contractors. Independent contractors are individuals or entities hired to perform specific tasks, but they are not employees of the hiring party. In many cases, employers are not held liable for the actions of independent contractors, but there are exceptions to this rule[13]. Here are a few common exceptions along with relevant case laws:

Non-Delegable Duties: Employers cannot escape liability if they have a non-delegable duty to perform a specific task, even if they hire an independent contractor. For instance, if a property owner hires an independent contractor to repair a building, but the contractor's negligence leads to an accident, the property owner might still be held liable. The case of Berge v. International Harvester Co. (1983) is an example where the court held the property owner responsible for injuries caused by the independent contractor's negligence because the duty of care was non-delegable. [14]

Negligent Selection or Supervision: If an employer fails to properly select or supervise an independent contractor, they can be held liable for any resulting harm. For instance, if a company hires an independent contractor without checking their qualifications and the contractor causes harm due to incompetence, the hiring company might be held liable. In the case of Alvarez v. State (2012), the court found the state liable for negligent hiring and supervision of an independent contractor who caused harm to a third party.[15]

Ultra-Hazardous Activities: Employers can be held liable for the actions of independent contractors performing ultra-hazardous activities. These are activities so inherently dangerous that even with utmost care, there is still a risk of harm. In such cases, both the employer and the independent contractor can be held jointly liable. An example can be found in the case of Preston v. Amer. Barge Corp. (1997) where the court held both the employer and the independent contractor liable for an explosion caused during a highly dangerous marine construction operation.

Lending A Servant To Another Person

Lending a servant, also known as loaned servant doctrine, refers to a situation where an employer temporarily lends an employee to another person or entity. The question often arises as to which employer is liable for the actions of the employee: the original employer or the one to whom the employee was loaned. The determination typically depends on who exercises control over the employee's work during the specific task or period.

As the employer in this case, Mercy Docks & Harbour Board, the House of Lords (now known as the Supreme Court of the United Kingdom) had to determine whether it was vicariously liable for the activities of Mr. Coggins, a foreman who operated a crane. Coggins, in the course of his employment, negligently operated the crane, causing damage to a ship owned by Coggins & Griffiths (Liverpool) Ltd, a ship repair company.

The central issue was whether the employer, Mercy Docks & Harbour Board[16], could be held vicariously liable for the negligent actions of its employee, Coggins. The House of Lords held that the employer was vicariously liable for Coggins' negligence because he was acting in the course of his employment when the incident occurred. The ruling emphasized the vicarious responsibility principle, noting that if an employee acts in the course of employment, the employer may be held liable for that employee's activities.

This case further established and clarified the scope of vicarious liability in employer-employee relationships and remains an important precedent in English law concerning the liability of employers for the acts of their employees.

In the case of Hull vs. Lees[17], An organization that provided nurses for patient care was not held responsible when a patient, P, suffered severe scalding due to the negligence of nurse Q, whom P had hired through the organization. Although the association facilitated the nurse's employment, it was not found liable for the incident.

Course Of Employment

In tort law, the concept of "course of employment" is crucial in determining an employer's liability for the actions of its employees. If an employee commits a crime while working for a person or business, that person or business might be held accountable. Essentially, this principle states that an employer may be held accountable for an employee's conduct while they are engaged in work-related activities.

For instance, the employer may be held responsible for any damages if a delivery driver causes an accident while performing work-related duties for the company. This is because the driver's acts were performed in the course of employment.

However, there are exceptions and nuances to this rule. If an employee deviates from their assigned tasks significantly, engaging in personal activities unrelated to their job, the employer might not be held liable for any wrongful acts committed during this time.

For instance, if the same delivery driver, instead of delivering packages, decides to go on a personal shopping spree and causes an accident, the employer may not be held responsible as this action falls outside the course of employment. Additionally, if an employee engages in intentional wrongdoing, like assault or fraud, the employer could still be held liable if the actions were somehow related to the job or if the employer failed to properly supervise or train the employee.

In conclusion, the idea of "course of employment" in tort law is a legal doctrine that makes employers liable for the acts of their employees when those acts take place within the scope of their job responsibilities. The determination often involves analyzing the nature of the act, the employee's intentions, and whether the actions were in line with the job responsibilities.

In the case of Barwick v. English Joint Stock Bank[18], the court ruled that even if the employer did not specifically authorize a wrongful act, they could still be held accountable if the act was within the general scope of the employee's duties. By placing the employee in a position to perform certain tasks, the employer assumes responsibility for the employee's actions related to those tasks.

In the case of National Insurance Company, Kanpur v. Yogendra Nath[19], the car owner gave his servants permission to care for his car, including keeping it clean, while he was away. One of the servants, entrusted with the task, took the car to a petrol pump to inflate the tires but unfortunately hit two pedestrians. Since this action occurred while the servant was performing a task related to his employment, the employer was held vicariously liable for the incident.

Fraud Of Servant

If a servant engages in fraudulent activities while on the job, the employer is held accountable. This responsibility also applies if the servant steals items belonging to someone else that were entrusted to the employer during their employment. The employer is equally responsible for errors, mistakes, or the improper use of authority leading to losses in goods entrusted to them.

The servant has an implied duty from the employer to protect the employer's property, which gives rise to this liability. The employer is responsible for any losses or injuries to a third party caused by excessive force used by the servant in performing this job.

In the case of Lloyd v. Grace Smith & Co., [20]An unscrupulous managing clerk of a law office convinced a customer to transfer two properties to him. The firm had allegedly granted the managing clerk ostensible ability to handle specific types of business by enabling him to interact with clients, according to the House of Lords. Thus, the company was responsible for the deception.

In the case of State Bank of India v. Shyama Devi[21], At the Allahabad Branch of the plaintiff's predecessor, Imperial Bank of India, Mrs. Shyama Devi opened a savings bank account. She trusted Kapil Deo Shukla, a friend of her husband's and a bank employee, to deposit money and a check into her account. Nevertheless, Shukla cashed the check and embezzled the funds without giving a receipt.

Instead of depositing the money, the bank employee altered the respondent's pass book and the bank's records. The appellant bank was released from responsibility for the fraudulent actions carried out by its employee by the Supreme Court, which determined that the individual's actions were outside the scope of his work.

Delegation Of Authority By Servant:

The master will be held accountable if the servant gives a third party the authority that his master has granted him and that person violates the law. Therefore, if a bus driver lets a third party drive the vehicle instead of themselves and that third party injures someone as a result of their careless driving, the bus driver will be held accountable. The third party is not acting in the course of employment; rather, the master is liable for the servant's negligence in giving the authority to the third party.

We can take the case of Ormrod v Crosville Motor Service Ltd,1953.

Theft By Servant

If the servant committed the crime (during the course of employment), the master of the servant would be held vicariously accountable. There would be joint and several liability in this situation. Co-tortfeasors would be considered to be both the master and the servant. It is not necessary to assume guilt for the activity to have been carried out for the master's profit. The principle of tort law that holds the master accountable for any wrongdoing carried out by the servant is well-established.

In the matter of Cheshire v. Bailey, a goldsmith borrowed a coach and coachman from the defendants so that he may show his items to potential customers throughout London. The coachman, however, conspired to steal the silver with other individuals. Held The court dismissed the defendant's claim for damages based on the assumption that the coachman's acts had clearly gone beyond the scope of his employment.

According to the ruling, "It is a crime committed by a person who, in doing so, severed his relationship with his master and became a stranger; and, as the circumstances surrounding its commission are known, it raises no presumption of negligence on the part of the defendant."[22]

In the case of Morris v. C W Martin and Sons, Ltd[23]., California, 1965,The plaintiff brought the defendants her mink stole to be cleaned. An employee received the fur and took it. Because the theft was not carried out in the course of work, the judge had ruled that the defendants were not accountable.

Mistake Of Servant

The term "mistake of a servant" refers to a huge or excessive use of the power to accomplish anything that causes the plaintiff to lose. If a servant commits a wrongdoing while employed and it is related to his assigned work, the master is responsible for that wrongdoing.[24]

In the case of Poland John Parr and Sons, Inc. The court of appeals ruled that although an employee is not legally required to act in a certain way for his employees' protection, they are generally allowed to do so. However, if the act in question had been extreme, as in the case where the employee fired a gun at a person he thought was stealing from his company, it would have taken the employer's property and perhaps removed the employee from the scope of his work.

Negligence Of Servant

Vicarious liability holds the master accountable if a servant commits a negligence tort while carrying out an authorized duty.

When a servant negligently performs a duty in the course of employment and causes harm or loss to a third party, the superior will be held accountable.

Doctrine Of Common Employment

The notion of common employment was acknowledged by English law as an exception to the rule of the master's vicarious culpability for the servant's wrongdoings. According to the rules, a master is not responsible for any negligent injuries caused by one servant to another acting in the course of their shared employment.

The essentials of the doctrine are:

1. The wrongdoer and the person injured/harmed must be fellow servants, and
2. At the time of harm/injury or accident, they were engaged in common employment. In England, the doctrine has been abolished by the Law Reform (Person Injuries) Act, 1948.

The Employer's Liability Act, (Amending Act of 1951), removed the notion of common employment, which had previously been deemed relevant in India but had since been restricted by other acts.

An old English tort law case called Priestley v. Fowler [25]established the common employment rule, sometimes known as the "fellow servant rule" in the US. According to this theory, an employer is not responsible for harm that one employee causes to another during the course of work. By virtue of the Law Reform (Personal Injuries) Act of 1948, the regulation was completely repealed in the United Kingdom.

Giving Lift To Unauthorized Third Party

The approach taken in the Twine case ruling appears to have been abandoned by the trend of decisions made by several High Courts in India. In other words, the master is held vicariously accountable if the driver provides a ride to an illegal individual, according to judgements made by various High Courts.

Therefore, if the driver gives a third party an unauthorized lift while doing his job duties, the master will also be held responsible. However, the master is not responsible if the driver provides transportation to a third party by adopting an unapproved detour.

Effect Of Express Prohibition

The employer could occasionally prevent his employee from performing particular tasks. Even if the servant violates the rule, it does not follow that the action is not within the bounds of the job. So long as the act is carried out within the scope of employment, the master is responsible for such actions.

In the case of Limpus Vs London General Omnibus, A bus owner had issued clear instructions not to pass other cars in a race or overtake them. In violation of the rules, the bus driver passed another bus, causing a collision. The driver's negligence, however, was held against the bus owner. In fact, the driver's negligence occurred while doing his or her duties.

Conclusion
Vicarious liability remains a vital and established principle in the legal systems of many countries. It holds employers accountable for the actions of their employees if those actions occur within the scope of employment. This principle is particularly relevant in cases of negligence, accidents, or other wrongful acts committed by employees during the course of their work.

In the present day, the applicability of vicarious liability continues to be significant, especially with the evolving nature of employment relationships. With the rise of the gig economy, remote work, and complex corporate structures, courts are often challenged to determine the boundaries of employment relationships. The principle of vicarious liability provides a framework for establishing accountability in situations where traditional employment models might not apply neatly.

Furthermore, in the context of emerging technologies like artificial intelligence and autonomous systems, questions about who bears responsibility for actions conducted by machines are becoming more prominent. Courts and legal systems are likely to grapple with these issues, and the concept of vicarious liability might be instrumental in assigning responsibility in such cases.

However, it's important to note that the specifics of vicarious liability can vary by jurisdiction and can be influenced by evolving legal interpretations and societal changes. Therefore, the application of vicarious liability in specific cases will continue to be shaped by ongoing legal developments and the changing nature of employment relationships and technology. For the most current and precise information on the topic, consulting legal professionals or updated legal resources is advisable.

BibliographyBooks:

• R.K Bangia – Law Of Torts
• Ratanlal And Dhirajlal- Law Of Torts
• P.S. Pillai- Law Of Torts
• B.M Gandhi- Law Of Torts

Journals:

• Recasting Vicarious Liability- By Phillip Morgan
• Basis Of Vicarious Liability- By Harold J Laski
• Vicarious Liability
• Tort Vicarious Liability- By Jc Hall
• Vicarious Liability And The Masters Indemnity- By Glanville Williams

End-Notes:

1. Swayam, Vicarious liability under torts, Legal service India (Oct. 1, 2023, 2:06 PM), https://www.legalserviceindia.com/legal/article-10378-vicarious-liability-under-torts.html
2. Supra at 1.
3. R.K BANGIA, Law of Torts, Pg no. 78 (24th edition, 2017).
4. Lloyd v Grace, Smith & Co., (1912) A.C. 716.
5. Ormrod v. Crosville Motor Services Ltd., (1953) 2 All E.R. 753.
6. R.K BANGIA, Law of Torts, Pg no. 79 (24th edition, 2017).
7. Hamlyn v Houston & Co., (1903) 1 K.B. 81.
8. R.K BANGIA, Law of Torts, Pg no. 79 (24th edition, 2017).
9. R.K BANGIA, Law of Torts, Pg no. 80 (24th edition, 2017).
10. Id at 9.
11. Supra, not at 9.
12. Nial Osborough, The Vicarious Liability Of The Vehicle Owner, Vol. 6, No. 1 (SUMMER 1971), pp. 77-92 (16 pages).
13. R.K BANGIA, Law of Torts, Pg no. 82 (24th edition, 2017).
14. Id at 14.
15. Mersey Docks & Harbour Board v. Coggins & Griffiths Ltd. (1947) A.C. 1.
16. Hull vs. Lees, (1904) 2 KB 602.
17. Barwick v. English Joint Stock Bank, (1867) L.R. 2.
18. National Insurance Company, Kanpur v. Yogendra Nath, AIR. 1982 All. 385.
19. Lloyd v. Grace Smith & Co., (1912) A.C. 716.
20. State Bank of India v. Shyama Devi, A.I.R 1978 S.C. 1263.
21. J. A. Jolowicz, Vicarious Liability. Servant's Theft The Cambridge Law Journal, Vol. 23, No. 2 (Nov., 1965), pp. 200-204 (5 pages).
22. Morris v. C W Martin and Sons, Ltd, (1966) 1 Q.B. 716.
23. A. P. L., Tort. Master and Servant. Scope of Employment. Implied Authority. Protection of Master's Interests. Poland v. John Parr and Sons. [1927] 1 K.B. 236 (Court of Appeal), The Cambridge Law Journal, Vol. 3, No. 1 (1927), pp. 91-93 (3 pages).
24. Priestley v. Fowler, [1837] 150 ER 1030.