A person is generally liable for his own wrongful acts and he does not incur any liability for acts done by others. But in case of vicarious liability there arises a liability on the person on behalf of other. To arise a liability on “A” on behalf of “B” there should be a relationship between A and B .Examples of this kind of relationship are:
- Liability of partners of each other’s tort
- Liability of master for the tort of his servant
- Liability of the principal for the tort of his agent.
Vicarious liability is based on the principal of “qui facit per se per alium facit per se” which means “he who does the act through another is deemed in law to do itself .vicarious liability is an exception to the rule that a person is liable for his own acts only .The three constituents of vicarious liability are:
- There should be a relationship
- The wrongful act should be somehow related to the relationship
- The wrongful act must be done within the course of employment.
Thus, Employers are vicariously liable for the torts of their employees that are committed during the course of employment. The concept of vicarious liability arose due to three main reasons:
- Lack of identity of slaves
- He who employs other person to do some act do it himself
- A principal must answer for the acts of his subordinates.
The liability arising in different kinds of relationship is discussed below:
- Principal and agent: It is considered that the act done by the agent is the act of the principal. The authority to the act may be implied or expressed. It is considered that the principle has given ratification after having a full knowledge about the acts he is consenting. The principal does not authorise his agent to do a wrongful act but when the agent does it on course of employment he becomes liable for it.
- Partners: the relationship between partners is same as in between principal and agent. For the tort committed by the any partner of the company, all other partners are liable .The liability of each partner is joint and several.
- Master and servant: when a servant does a wrongful act in the course of employment the master is liable for it.Servant is any person employed by another to do work on the terms that he is, to be subject to control and the directions of his employer in respect and the manner in which the work is to be done. A master is who is legally entitled to give orders and to have them obey. A master is liable because the
- It is considered that the employer has a sound economic growth
- Employer benefit from the act of employee
- Also it acts as a warning to train the staff better.
There are two tests to confirm whether the relation is of master – servant type. Traditionally the master- servant relationship came under the contract of service. The two tests are:
- Control test: It was traditionally formulated .The master has the power to direct the servant what to do and how to do. The master also has the right to suspend the servant. Eg: farmer and agricultural labourer.
- Organisational test: According to the test the master has the control over the servant and also he must be the owner of the tools provided to the servants. The organisational test is not so derisive.
Family Purpose Doctrine:
When a person lends a vehicle to his family member and accident happens then the owner of the vehicle would be liable. Some conditions of this are
- The defendant must have a control over the vehicle
- The vehicle must be available for the family use rather than for business purpose.
- The vehicle when be driven at the time of accident should with the defendant’s permission or consent.
Vicarious Liability of the State:
The government cannot be visited with the consequences flowing from a wrong order made by a statutory authority. As far as the State is concerned, it cannot put forward any such plea inasmuch as the statute is enacted by it by Legislature. The appointment of the authority is also done either by the Statute itself or by such authority as may be authorised by the Statute. The act of the statutory authority in such a case is an act done for and on behalf of the State. Hence the state is held liable. State’s liability for the acts or omissions of statutory authorities arises only in cases where the statutory authority acts outside his legal authority while purporting to act pursuant to the legal authority conferred upon him and the act or omission, which causes or results in damage to a person, is not within the ambit of the statutory protection, if any, contained in such enactments.