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The law of tort has been used for many centuries to protect personal interests such as property,
reputation, body etc. It ensures justice is done by looking into the claimant's need for
compensation, which is paid by the defendant who has committed a breach of duty. The general
rule in tort law is that liability is personal, i.e., liability is generally linked to a breach of one’s
own duty and a person is liable for the wrongs committed by him only. However, in certain
scenarios, the law makes one person being liable for the harm caused by another, because of
some legally relevant relationship between the two. This is known as the doctrine of vicarious

The word 'vicarious' is derived from the Latin word for 'change' or ‘alteration’. Vicarious
liability is an aberration from the norm of holding the tortfeasor liable for damage caused by
their own tortious liability. It is also referred to as imputed negligence. Legal relationships that
can lead to imputed negligence include the relationship between parent and child, husband and
wife, owner of a vehicle and driver, and employer and employee etc. The persons who are held
vicariously liable need not be personally connected to the tort or be in anyway responsible. Thus
vicarious liability is a form of strict liability.

Many reasons have been advanced to justify this departure from the fault principle. It is
commonly said that the reasons behind the doctrine of vicarious liability are first, that the
employer is in a better position to absorb the legal costs either by purchasing insurance or
increasing his prices. Secondly, that the imposition of liability should encourage the employer to
ensure the highest possible safety standards in running his business. The Latin maxim ‘qui facit
per alium facit per se’ that means he who acts through another shall deemed to have acted on his
own and ‘respondeat superior’ (“let the master answer”) is commonly used in employer-
employee relationships. In Bartonshill Coal Co. v McGuire,1 Lord Chelmsford LC said: ‘every
act which is done by an employee in the course of his duty is regarded as done by his employer’s
orders, and consequently is the same as if it were his employer’s own act.’ It is said that the
doctrine of vicarious liability has not grown from any very clear, logical or legal principle but
from social convenience and rough justice2. Another justification for it is that since the employer
1 (1853) 3 Macq 300
2 Per Lord Pearce in Imperial Chemical Industries v Shatwell [1964] All ER 999

makes profit from the employee’s activities, it is only reasonable that the he bear any losses
caused by the same.

The most common example of vicarious liability is the liability of an employer for the torts of his
employees committed in the course of employment. It is not necessary in such circumstances for
the employer to have breached any duty that was owed to the injured party, and therefore it
operates as strict or no-fault liability. The most important element to establishing a case for
vicarious liability is that the wrongdoer be acting as an employee or employee, and that the
wrong done be connected to the employee’s course of employment.

Extent of Vicarious Liability
The master (or employer) is liable for the torts committed by his servant (or employee) only
when it committed during the course of employment. It is important to note that the vicarious
liability of the employer is additional to the ‘primary’ liability of the employee for negligence.
Both are liable— ‘jointly and severally’, as it is put. The common law implies into the contract
of employment a term to the effect that the employee will perform the contract with reasonable
care. On the basis of this term, the employer is entitled to recover from the employee a
contribution to any damages which the employer is liable to pay to the person injured or killed. If
the employer was not negligent at all, it will be entitled to be fully indemnified by the employee.

There are three basic requirements to attribute liability to the employer. Firstly, it must be
established that the tort was committed by the employee; secondly, the relationship between the
master and employee should be established; thirdly, the tort must have been committed in the
course of employment.

Is the worker an employee?

In order to establish vicarious liability, it is very important to be able to identify an employee;
however the law is rather uncertain on the definition of ‘employee’ (or ‘servant’). An
independent contractor is said to have a contract for his services with his employer, while an
employee (or servant) works under a contract of service. A convenient starting point for inquiry
is the terms of the contract between the parties: how does the contract classify the person in
question—as an employee or as an independent contractor?

In the case of an independent contractor, a contract for services exists between the employer and
the contractor. A 'contractor' is a person who, in the pursuit of an independent business,
undertakes to do specific jobs of work for other persons, without submitting himself to their
control in respect to the details of the work3. The employer is not liable for the torts committed
by the independent contractor except under exceptional circumstances such as strict liability,
negligence in selecting proper person for the task, employment for the purpose of causing harm

3 Chintaman Rao v. State of M.P. AIR 1958 SC 388

The difference between a contract of service (employee) and one for services ([independent
contractor) must reside, essentially, in the terms of the principal obligation agreed to be
undertaken by the employee. In a contract of service, the principal obligation is to provide
himself to serve: whereas in a contract for services the principal obligation is to provide his
services for the use of the employer.4

This distinction was also explained in the case Honeywill & Stein Ltd v. Larkin Bros Ltd5
by Slesser LJ. An employer is not liable for the acts of his independent contractor in the same
way as he is for the acts of his employees or agents, even though these acts are done in carrying
out the work for his benefit under the contract. The determination whether the actual wrongdoer
is a employee or agent on the one hand or an independent contractor on the other depends on
whether or not the employer not only determines what is to be done, but retains the control of the
actual performance, in which case the doer is a employee or agent; but if the employer, while
prescribing the work to be done, leaves the manner of doing it to the control of the doer, the
latter is an independent contractor.

Now, the question arises how to establish the relationship between a master and an employee? It
is important to determine who is an employee not just for the purpose of vicarious liability, but
also for issues such as tax, social security, copyright etc. There is no single test for determining
this, but tests have been formulated in the cases.

The oldest of these is the ‘control’ test. The control test effectively imposed liability where an
employer dictated both what work was to be done, and how it was to be done. This is aptly suited
for situations where precise instructions are given by an employer; it can clearly be seen that the
employer is the causal link for any harm which follows. If on the other hand an employer does
not determine how an act should be carried out, then the relationship would instead be one of
employer and independent contractor.

The weakness of this traditional approach is that in the case of modern, highly specialized tasks
it is difficult for the employer to exercise control over the method of doing the work Therefore,
this test is not universally correct. The control test was explicitly disapproved in the case of
Union of India v. Abdul Rehman and it was stated that control test was a product of the primitive
society. There are many contracts of service where the master cannot control the manner in
4 WHPT Housing Association Ltd v Secretary of State for Social Services [1981] ICR 737
5 [1934] 1 KB 1991
6 AIR 1981 J&K 60

which the work is to be done, as in the case of lawyers, surgeons and captains of ship etc.
However, the Privy Council held that “Control will no doubt always have to be considered, but it
can no longer be regarded as the sole determining factor; and that factor

A new test evolved with times to determine whether the contract is that “of service” or “for
services” A test was formed to determine whether the employee was an integral part of the
business. This test was proposed by Lord Denning. The reasoning is that under a contract of
service, a man is employed as part of the business; whereas under a contract for services, his
work, although done for the business, is not integrated into it but is only accessory to it. The
court will decide the status of each individual in the light of all the circumstances of each case.
Ways of determining whether the worker is an employee or independent contractor include
determining who owns the tools, is the worker paid wages or commission/lump sum amount for
the job, was the worker in business on his own etc.

He said: 'It is often easy to recognize a contract of service when you see it, but difficult to say
wherein the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a
newspaper are all employed under a contract of service; but a ship's pilot, a taxi-man, and a
newspaper contributor are employed under a contract for services. One feature which seems to
run through the instances is that, under a contract of service, a man is employed as part of the
business; whereas, under a contract for services, his work, although done for the business, is not
integrated into it but is only accessory to it.' 7

The test nowadays is to look at all of the circumstances of the relationship before making a
decision. In Ready Mixed Concrete v Ministry Of Pensions And National Insurance8 the
following criteria were put forward to determine whether a contract of service exists:
1. The employee agrees that, in consideration of a wage/other remuneration, he will provide
his own work and skill in the performance of some task for his employer.
2. The employee agrees expressly or impliedly to be subject to his employer’s control.
3. The other provisions of the contract should be consistent with it being a contract of
service or employment.

7 Stevenson, Jordan and Harrison Ltd v McDonald and Evans [1952] 1 TLR 101
8 (1968) 1 All ER 433
Another test is to determine the employer is the 4 indicia of contract of service. It was brought
out by Lord Thankerton in Short V.J. & W. Henderson Ltd.9
(i) Master’s power to select servant
(ii) Payment of wages or other remuneration
(iii) Master’s right to control method of doing work
(iv) Master’s right of suspension or dismissal

The latest test to determine whether a worker is an employee is called the ‘hire and fire’ test.
The person who retains the power of dismissal is usually the employer for the purposes of
vicarious liability. One cannot always use any one test exclusively. In practice, it is difficult to
predict which tests the court will apply and almost impossible to assess in advance the outcome
of individual cases.

Course of Employment
An employer will only be liable for torts which the employee commits in the course of
employment. Although this is a question of fact in each case, there is little consistency in the
decisions. It is therefore extremely difficult to state the law simply.
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. The course of employment
encompasses the actual period of employment and the period during which the employee, while
on the employer's premises, prepares to commence or to depart from work, such as by changing
clothes. Employer-sponsored recreational activities are also considered part of the course of
employment when organized, encouraged, or supported by the employer for business purposes,
such as the promotion of efficiency.
For an act to be considered within the course of employment it must either be authorized or be so
connected with an authorized act that it can be considered a mode, though an improper mode, of
performing it. In other words, an act can be said to be within the realm of “course of
employment” if it is either an authorized act or a wrongful way of doing an authorized act.
If an employee expressly authorizes an unlawful act, he or she will be primarily liable. The
position is more difficult in cases in which the employer is said to have authorized a wrongful act

9 (1946) 62 TLR 427

by implication. This 'implied authority' approach seems to have lost currency but it was accepted
in the early 20th century 10 and it was even then probably little more than a means of justifying
the outcome which the courts desired.

An employer will usually be liable for acts which are wrongful ways of doing something
authorized by the employer, even if the acts themselves were expressly forbidden by the
employer.11 The court should determine the fundamental question of whether the wrongful act is
sufficiently related to conduct authorized by the employer to justify the imposition of
vicarious liability. Where there is a significant connection between the creation or
enhancement of a risk and the wrong that occurs, the employer can be held vicariously liable.

To determine the sufficiency of the connection, the following factors should be

1. the opportunity afforded for the employee to abuse his power;
2. the extent to which the act is furthered by the employer's aims;
3. the extent to which the act is related to friction, confrontation, or any other kind of tort
4. the extent of the power of the employee over the victim; and,
5. The vulnerability of the potential victims.

This principle was applied in many cases like Rose v. Plenty.12 In this case, a milkman had been
forbidden by his employer to allow young boys to ride on the milk floats and assist in delivering
milk. However, he took a 13-year-old boy to help him on his round, and the boy was injured
through the milkman's negligent driving. The boy sued both the milkman and the dairy. The
Court of Appeal held that the milkman was carrying out, albeit in a prohibited manner, the task
which he was employed to do, so the employer was liable.

In another case, Limpus v. London General Omnibus Co.13 a bus driver racing to a stop to collect
passengers deliberately obstructed the driver of a bus of a rival company, overturning the latter's
vehicle. This was done despite express prohibition by his company against obstructing other
buses. However, the defendants were liable. The rationale was that the driver was acting within
the course of his employment at the time; it was immaterial whether his act was forbidden.

10 Poland v Parr & Sons [1927] 1 KB 236

11 Salmond & Heuston on the Law of Torts, 1996, p443
12 [1976]1 WLR 141
13 (1862) 1 H&C 526

An act in defiance of a prohibition which deals with “conduct within sphere of employment”
(i.e.: how, when, where etc tasks are performed) will not be outside the scope of employment -
the employee would be doing the right services but in the wrong way: employer is liable

However, 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. This was seen in the case Crook v.
Derbyshire Stone Ltd.14 it was held that the employer was not liable when a collision occurred
between the employee and a motor cyclist caused by his negligence. The lorry driver had stopped
at a way side café and crossed one section of a dual carriage way on foot in order to get
refreshment which was an act done while he was employed and with his employer’s permission.
The act of getting refreshments was just incidental to his employment.

14 (1956)2 All ER 447

Vicarious Liability in cases of borrowed servants
When one employer lends his servant under a contract or otherwise to another person there is a
change of master for a period the servant is doing the specific work of that other person. This
concept is known as lending of a servant. The servant is said to be borrowed by his new
employer from his general employer for that brief period.

General rule is that vicarious liability can’t be shared. It must be assigned to one employer.
Courts seem to uniformly hold that an employee is presumed to continue in the employment of
the general employer, and that, in order to show that he has become the servant or employee of
the special employer, the burden of proof to establish such a shift is on the general employer. So,
whenever an employee commits a tort during such a course of borrowed employment, the person
wronged can take only the general employer liable. It also seems to be agreed that the
relationship between an employee and the general or special employer is a question of
fact. Because of this, similar or even identical factual situations may produce different results,
because different tiers of fact may put greater weight on different factors. This general rule was
applied in the case of Mersey Docks & Harbour Board v. Coggins and Griffiths Liverpool Ltd15.

The two prevailing tests for determining borrowed employee status can be summarized as
follows. The “whose business” test inquires as to which employer’s work was being performed
at the time the accident occurred. The “right of control” test focuses on which employer had the
right to control the specific acts of the employee at the time of the accident, the reasoning being
that that employer is in the best position to prevent the injury. The two tests tend to overlap since
an employer’s right to control is generally coextensive with the scope of his business, and the
tests are often used in a complimentary fashion by the courts in an attempt to determine which of
the two employers should be liable.

In the case of Mersey Docks & Harbour Board v. Coggins and Griffiths Liverpool Ltd, the
appellants held out their crane and their driver to the respondents Stevedores under a contract
providing that the driver shall be the servant of the respondent. The crane driver by his
negligence injured a person giving rise to the question as to who was the master at the time of the
accident for purposes of vicarious liability. All the courts held that there was no transfer of the
15(1946) 2 All ER 345

servants and he appellants continued to be the master and were, therefore liable for negligence of
the servant.

The House of Lords took all the facts into account, but regarded it to be of paramount importance
that the original employer retained the control over the manner in which the work was to be
done. Accordingly, it was held that the original employer carried vicarious liability for the tort of
the driver. The original employer bears the burden of proving that the responsibility for the torts
of the employee has shifted to the second employer, and the statements in the contract of hire are
not to be treated as conclusive on this matter.

The primary method to establish vicarious liability remains the test of control. The person who
tells the employee the way in which he is supposed to do the work upon which he is engaged, is
the person liable for the negligence or torts committed by the employee. It is not enough that the
task must be performed under his control; he should also control the method of performing it.
The same principal was used in Bhoomidas v. Port of Singapore Authority.16

In another case, a bus which met with an accident was hired along with the driver by a
corporation from a private owner. Although the driver continued to be in the pay roll of the
owner, his services were transferred along with complete control to the corporation under whose
directions, instructions and commands the driver was to ply or not ply the bus on the road. In
these circumstances, the corporation and not the private owner was held vicariously liable for the
tort committed by the driver. 17
The test of control was applied to the above case, and the party
that held the control of the method of performing the work is liable.

Sometimes, the concept of dual liability is followed. Under this concept, both the general and the
special employer may be held liable. An early example of this approach can be found in Gordon
v. S.M. Byers Motor Car Co.18 Byers sold trucks; Hazlett was in the gas business and interested
in buying a truck. Byers therefore provided a truck and driver for a one-week demonstration,
after which Byers could either buy the truck or pay rent for the week. An explosion killed the
plaintiff’s husband while gas was being unloaded from the truck.

16 (1978)1 All ER 956 (PC)

17 Rajasthan State Road Transport Corporation v. Kailash Nath Kothari AIR 1997 SC 3444
18 746 S.W.2d 108

The court held that the driver was the servant of both Byers and Hazlett, and therefore both were
vicariously liable. Byers controlled him as a demonstrator for the purpose of selling the
truck. Hazlett controlled him in delivering the gas. Each had a power or right of control,
whether it was exercised or not. The driver was acting on behalf of both and for the benefit of

A number of courts have adopted the dual liability approach over the years. They follow the
rationale expressed in Brickner v. Normandy Osteopathic Hospital, Inc.19, that notwithstanding
the biblical admonition that a man cannot serve two masters, a person can indeed “serve two
masters simultaneously, provided the interest of the masters are not so adverse and antagonistic
that the intent to serve one necessarily excludes an intent to serve the other.”

19 164 A. 334 at p. 1932

Vicarious Liability of Hospital Authorities
The principle of vicarious liability is very often sought to be imposed on hospital authorities for
the negligence of doctors and other medical staff in the hospital. In the twentieth century, the
hospital's sole responsibility was “to provide a properly equipped medical facility”. Over the
years the function of the hospital has slowly changed from a venue for treatment to a provider of
treatment. The patient has a right to expect a certain standard of care when he puts himself in the
hands of the hospital authority or health care providers. When a hospital fails to uphold this
responsibility, the institution may be held liable for causing damage to its patients. They can be
vicariously as well as directly liable for providing health care facilities.

The hospital-patient relationship creates a duty of due care on the part of a hospital or a hospital
administration. Doctors and surgeons are not expected to perform miracles or guarantee a cure.
The standard of care demanded of hospitals and medical and other staff is a reasonable
professional standard. There will be breach of this duty if the hospital (or its staff):

• omit to do something which a reasonable hospital administration (or its staff), guided by
considerations which ordinarily regulate the conduct of hospital & patient, would do, or;

• do something which a prudent and reasonable hospital administration (or its staff) would
not do20

A doctor does not need the courage of Achilles or the wisdom of Ulysses or the strength of
Hercules nor the prophetic vision of a clairvoyant. He or she is not required to be a perfect doctor
but is required to exhibit the degree of skill and competence usually associated with the efficient
discharge of their medical work.21 A hospital administration and medical or other staff members
would have discharged their duty where they have taken reasonable precautions, such as those
taken by other hospitals or medical staff in a similar situation.

Medical malpractice is professional negligence by act or omission by a health care provider in

which care provided deviates from accepted standards of practice in the medical community and
causes injury/ death to the patient.

20 Blyth v Birmingham Waterworks Co (1856) 11 Exch 781, 784

21 Winfield & Jolowicz on Tort (13th Ed, 1990), pp 46-47

A plaintiff must establish all four elements of the tort of negligence for a successful medical
malpractice claim:
○ A duty was owed - a legal duty exists whenever a hospital undertakes care of a patient.
○ A duty was breached – the provider failed to conform to the relevant standard of care.
The standard of care is proved by expert testimony or by obvious errors (the doctrine of
res ipsa loquitur or the thing speaks for itself).
○ The breach caused an injury – The breach of duty was a proximate cause of the injury.
○ Damages – Without damages (losses which may be pecuniary or emotional), there is no
basis for a claim, regardless of whether the medical provider was negligent.

In earlier times, hospitals were not held vicariously liable for the negligence of its professional
staff in matters involving professional care and skill.22 Mr. Hilleyer suffered severe burns due to
negligence of hospital nurses. The hospital was excluded from liability. The rationale behind the
judgment was that the nurse was not under the direct control of the hospital authorities.
However, in Cassidy v. Ministry of Health23 the claimant underwent a routine operation on his
hand. The operation was incompetently performed, and made the claimant's condition much
worse. He sued the health authority both in its own capacity and as the employer of the medical
staff involved under the principle of Vicarious Liability. The question arose whether there was a
`master-servant' relationship between the health authority and the surgeon. The court held that
the hospital was liable. In this judgment, Lord Denning criticized the judgment given in the
Hilleyer case, saying that “there can be no doubt that the nurses remain the servant of the
hospital authorities, even when they are under the directions of the surgeon in the Operation
Theatre. The reason is because the nurses are employed by the hospital authorities, paid by them
and liable to be dismissed by them; and the consulting surgeon has not that ‘entire and absolute’
authority over them”

Another important principle applied in this case was that it was held that as long as it was found
that at least one of the employer’s servants had been negligent, it did not matter if the individual
tortfeasor could not be identified – the employer was still vicariously liable.

22 Hilleyer v. S.L. Bartholomew’s Hospital (1909) 1 KB 820

23 [1951] 1 All ER 574 (CA)

In India too, the concept of vicarious liability is applicable to hospital authorities. The state is
liable for negligence of staff of Government Hospital.24 The Apex Court held that “The medical
ethics require certain duties to be performed by the medical practitioners with reasonable degree
of care and skill, failing which, such negligence of the medical practitioners working in the
Government Hospitals vicariously gets shifted on the Employer State.”25 In Rukmani v. State of
Tamil Nadu26, it was held that the complainant entitled to damages caused by medical negligence
on the part of the doctors working in the hospital and the State is vicariously liable for such
damages. In this case, the petitioner sought damages complaining that the sterilization operation
undergone by her in a government hospital was a failure and subsequently she alleged unwanted
pregnancies. The court held both the Doctor and the State responsible for damages of the failed
sterilization operation performed by the doctor on account of his negligence. The court held that
this is directly responsible for another birth in the family, creating additional economic burden
on the person who had chosen to be operated upon for sterilization.

In Arpana Dutta v. Apollo Hospitals Enterprises and Ors.,27 the court awarded Rs. 5, 00,000/- as
damages awarded to the plaintiff for the pain, suffering and mental agony undergone by her due
to negligent way in which surgery was done on her. In this case, the defendant doctor negligently
left a foreign body namely an abdominal pack in her abdomen during a surgery. This led to the
plaintiff suffering severe persistent pain. The court held that defendant not exercised sufficient
care and caution in conducting operation which is expected from doctor. The hospital was held
vicariously liable.

24 Kalawati v. State of H.P. AIR 1989 HP 5

25 State of Haryana v. Santara AIR 2000 SC 1888
26 AIR 2003 Mad HC 352
27 AIR 2000 Mad 340

Vicarious Liability of School Authorities
Just as hospitals are liable for torts committed by its staff, school authorities too can be held
vicariously liable for the torts committed by the school staff. Cases that involve the negligence of
teachers, principals, or other school employees usually result in a court's finding that the relevant
school board is liable under the doctrine of "vicarious liability" If a teacher or other employee of
the school board is negligent, he is personally liable for the damages sustained by the injured
person., However, the school board that employs him, which is usually in a better financial
position to compensate the victim is often the primary defendant of the law suit.

In Deep Chand Sood v. State of H.P., the Himachal Pradesh High Court had held the school
liable in negligence for the death by drowning of 14 children while on a school picnic. In M.S.
Grewal v. Deep Chand Sood, in appeal before the Supreme Court, the court reiterated the
principle of vicarious liability of the school for the negligence of its teachers and located it
within the grid of "implied authority" and the master-and-servant relationship where the
employee was seen to be acting in the "course of employment" and not on a "frolic of his own"

Expatiating on the duty of care, the court said: "while the parent owes his child a duty of care in
relation to the child's physical security, a teacher in school expected to show such care towards a
child under his charge as would be exercised by a reasonably careful parent" Duty of care, the
court explained, "varies from situation to situation" Differently from student moving around the
school premises, "if the students are taken out to a playground near a river for fun and a swim,
the degree of care required stands at a much higher degree and no deviation therefore can be had
on any count whatsoever"

Vicarious Liability of Employers in case of
carelessness of employee
Employers are vicariously liable for torts of their employees. An employer is usually liable for
the unintentional torts committed by the employee during the course of the employment.
Unintentional torts are mistake, carelessness etc. A different set of rules apply in deciding cases
when intention of the employee exist such as willful wrongdoing, theft, fraud, assault etc. We
shall now look at the liability of the employer in the circumstance of carelessness of employee

By far the commonest kind of wrong which the servant commits is one due to unlawful
carelessness, whether it be negligence of the kind which is in itself a tort, or negligence is
immaterial; the doer is liable either way. In cases of this sort the employer may well be
responsible for conduct of the servant to which no moral blame attaches. But assuming that the
tort is negligence or that it is one in which inadvertence is a possible element in its commission,
it may still be in the course of employment even if the servant is not acting strictly in the
performance of his duty, provided he is not “on a frolic of his own". Thus a first aid attendant at
a colliery is still within the course of employment while cycling across his employer’s premises
to go to an office to collect his wages28 and so is a person sent to work at a place away from his
employer’s premises who drives some distance from his place of work to get a midday meal. 29 A
number of cases are concerned with deviations by drivers from routes authorised by their
employers. We have probably not advanced much beyond the test stated in the old case of Storey
v. Ashton, 30 that it is “a question of degree how far the deviation could be considered a separate
journey divesting the employer of responsibility. In case of accidents in the above cases, the
employer can be held liable for negligence.

Carelessness can also be termed as negligence. In order to establish civil liability on the ground
of negligence, three things must be proved - a duty to take care, the absence of due care, and
actual damage caused directly by the absence of due care. Mere carelessness gives no right of
action unless the person injured can show that there was a legal duty to take care.

28 Staton v. National Coal board (1957) 1 W.L.R. 893

29 Harvey v. R. G. O’Dell Ltd. [1958] 2 Q.B. 78
30 (1869) L.R. 4 QB 476

One of the leading cases to illustrate vicarious liability in case of negligence or carelessness of
the employee is Century Insurance Co. Ltd. v. Northern Ireland Road Transport Corporation.31
In this case, a lorry belonging to the respondents and driven by one of their employees was
delivering petrol in bulk from Larne Depot of H & Co. to a garage in Belfast. While the petrol
was flowing from the lorry to the tank at the garage, the driver lit a cigarette and threw the
match. It was held that the negligent act of the driver was done in the course of his employment
by the respondents. Thus, they would be liable for his negligence and the appellants were entitled
to claim damages under the terms of the policy.

In Jefferson v. Derbyshire Farmers Ltd.32, the defendants were using the plaintiff’s premises as a
garage. Their servants engaged in their business drew motor spirit from a drum and while going
so lit a cigarette and threw away the lighted match whereby the spirit ignited and burned down
the garage. The defendants were held liable.

31 1942 AC 509
32 (1921) 2 K.B. 281

Master's right to recover damages from servants
An employee may be liable to make good damages or other compensation which the employer
has been liable to pay to some third person as a result of the act or omission of the employee in
the course of employment. The liability is vicarious, that is, the employer is liable because the
act of the employee is attributed to the employer and not because the employer has been guilty of
any negligent or other wrongful act or omission. In other words, when an employer is
successfully sued, they have the option of suing the tortfeasor for an indemnity to recover the
damages back. The person who is vicariously liable can seek it from the tortfeasor.

This principle was used in the controversial Lister v. Romford Ice Cold Storage Co. Ltd.33 The
case relates to the situation where an employee is injured as a result of the negligence of a fellow
employee and the employer is held to be vicariously liable for the loss suffered as a result of that
negligence. Traditionally, under the terms of his contract, an employee must be diligent and use
reasonable skills while at work. This amounts to a general duty to take reasonable care while at
work. These contractual duties are owed to the employer and not to any person who may be
injured as a result of the breach. As a consequence, the employer may be able to sue the
employee for breach of contract. The House of Lords held that the son has to indemnify the
employers and consequently the insurers.

However, in Morris v. Ford Motor Co.34 the court held that it would be unjust to make the
employee personally liable.

This situation can clearly cause problems between employers and employees and as a
consequence of the difficulties which have been predicted, most insurers have entered into a
gentleman's agreement not to enforce their rights in such circumstances in the future if there is no
willful misconduct or collusion between the employer and the employee.

In India it has been held that when an officer of the government or a public authority acts
maliciously and oppressively causing agony to the plaintiff, the government and authority made
liable for damages must recover the amount from the officers who are responsible.35 The reason

33 (1957) AC 555
34 (1973)2 All ER 1084

35 Lucknow Development Authority v. M K Gupta AIR 1994 SC 787

is that when the government or a public authority is made to pay damages the burden really falls
on the citizens as taxpayers and there is no justification for burdening them for malicious and
oppressive conduct of the officers.

The next thing that has to be established is that the tort was committed during the course of
employment. Course of employment can be defined as all the activities engaged in, the
circumstances that exist, and the events that occur that are normally part of an employee’s job,
especially those directly related to the work that the employee was hired to do. The time that the
employee takes to complete his or her assigned tasks also comes under “course of employment”
The law is very clear on what constitutes course of employment through many different
landmark cases which are listed above.

Sometimes, the situation becomes a little complicated in the case of servants who are borrowed
by one person from the one master (or employer) to perform a specific task. The question of law
arises as to who is the master for the purposes of vicarious liability in case a tort is committed
during the commission of that specific task. The courts apply the “Control” test to determine this
and the person who had direct control of the servant’s performance of work is held liable.
Sometimes both the parties can also be held liable for this purpose.

We have seen the meaning of vicarious liability and its application under tort law under many
circumstances as mentioned above.

Vicarious liability is a legal concept which refers to one party being held liable for the injury or
damage sustained by another party, in spite of the fact that they had no active involvement in the
incident. The intent behind vicarious liability is to hold the proper party accountable when harm
is committed. The victim needs compensation and the law provides so by applying the principle
of ‘qui facit per alium facit per se’ that means he who acts through another shall deemed to have
acted on his own, the courts hold the employer or principal or partner responsible as per the
situation. We have looked at a variety of situations in which a party, including contractors,
parents and employers, may be charged with vicarious liability.

Vicarious liability is sometimes applied in criminal law too. In India sections 154, 155 etc of the
Indian Penal Code are classic examples of the same. However application of vicarious liability to
crimes has been greatly criticized. This is because vicarious criminal liability would violate
either or both of two basic principles of the criminal law. According to the first principle, the
actus reus requirement, a person cannot be guilty of a crime unless the person's guilty conduct
includes a voluntary act or omission. One feature of the actus reus requirement is the protection
of personal security it affords by forcing criminal statutes to provide a bright line that a person
can choose not to cross and thereby avoid criminal liability. By holding a person liable for the
conduct of another, vicarious liability undermines this control principle of the actus reus
requirement, because a person cannot control the conduct of others in the same way that she can
control her own. Just as importantly, vicarious liability may violate a second principle, that
criminal liability must be based on personal fault. Both retributive and utilitarian justifications
for criminal penalties demand that fault accompany the moral condemnation and harsher
punishments associated with criminal conviction. By punishing the parent for theft if a child
steals, for example, vicarious liability could violate this basic rule. Nowadays, vicarious liability
in criminal law is rarely applied except in very special circumstances.

An employer is liable for the torts committed by his employees during the course of
employment. Several reasons have been advanced as a justification for the imposition of

vicarious liability. It is because the employer has better financial capacity to compensate the
victim. It encourages the employer to provide safe working conditions that are accident free to
the employees and most importantly, since the employer derives the benefits of the actions of the
employee, it is only fair that he bears the brunt if any loss has occurred due to the same.

An employer can be held liable for the torts of the employee only if the following claims are
established. Firstly, a tort must be committed. Secondly, the tortfeasor must be an employee and
lastly, the tort must have been committed in the “course of employment”

Once the first claim is established, one has to prove that the worker was indeed a
servant/employee and not an independent contractor (employers are not liable for torts
committed by independent contractors). There are many tests suggested by many different legal
scholars to determine the same. Some of these tests are the control test, which checks whether
the employer had the control of determining the method of performance of the work of the

Another test is the hire and fire test which is used in modern times especially for torts committed
by professionals where there is no way to control the method of doing work. The other tests
include the “integral part of business” test, 4 indicia of employment etc. By all these tests one
can determine if the worker is under a contract of service or contract for service, and the
employer is liable only if the first is proved.

Applicability of vicarious liability is possible only when “in the course of employment” criterion
is satisfied. Although essential, this criterion has expanded to the point of allowing claims for
vicarious liability in cases where liability would not have arguably been imposed. This criterion
is a question of fact, and it is immaterial whether the wrong committed by the employee was
authorised or not. Course of employment can be defined as the activities engaged in, the
circumstances that exist, and the events that occur that are normally part of an employee’s job,
especially those directly related to the work that the employee was hired to do. The time that the
employee takes to complete his or her assigned tasks also comes under this. It is important to
note that an employer cannot avoid liability if an employee acts in a way that could be described
as “incidental” to his employment and the duties to which he is entrusted with.

Vicarious liability becomes a tricky concept when professionals such as medical practitioners
and school teachers are involved. The employers usually hold the stand that they are not skilled
enough to understand the nature of the work; they had no control over the actions of the

employees, so they cannot be held vicariously liable. This was accepted by the court earlier, for
instance in the case of Hilleyer v. S.L. Bartholomew’s Hospital36. However later the court
rejected this stand and held that the employer must be made liable as the hospital owed a duty of
care towards its patients.

We saw instances where the master can be held liable for the careless and negligent actions of
the servant, thereby resulting in injury or damage to a third party. If this action of the servant was
committed during the course of employment, then the master is held accountable and has to pay

So far, we have seen the master held accountable. Nevertheless, there is a provision in law to
provide relief to the employers’ who have been held vicariously liable when the employee
commits a tort. The principle is commonly referred to as the Lister v Romford Ice Cold Storage
Co. Ltd. Using this principle the employer may sue the employee for damages claiming that the
employee has incurred by using the claim that the employee has violated the term of the contract
of service by his negligence.

Thus, vicarious liability is a theory that is aimed at providing remedy to the sufferers of damage
in accordance with the principle of “justice, equity and good conscience”

36 (1909) 1 KB 820

Ratanlal & Dhirajlal’s The Law of Torts Winfield and Jolowicz on Tort
Justice G. P. Singh W.V.H. Rogers
Publisher: Wadhwa & Company, Nagpur Publisher: Sweet & Maxwell
Twenty Fifth Edition, 2006 Sixteenth Edition, 2002

Law of Tort Law of torts

P.S.A. Pillai RK Bangia
Eastern Book Company, Lucknow Publisher: Allahabad Law agency
Ninth Edition, 2004 21st edition, 2008

Modern Tort Law

Vivienne, Harphood,
Cavendish Publishing UK
6th Edition, 2005

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