TOPIC: VICARIOUS LIABILITY

A. INTRODUCTION:
As a general rule, a man is liable only for his own acts but there are
certain circumstances in which liabilities attach to him for the wrong
committed by others. This is called various liability. The most
common instances are the liability of the master for wrongs
committed by his servant. In these, liability is joint as well as several.
The plaintiff can sue the actual wrongdoer himself, be he as a servant,
or agent as well as his principal.

B. MEANING OF VICARIOUS LIABILITY:

Vicarious liability means liability, of one person for the tort

committed by another person.

C. DEFINITION OF VICARIOUS LIABILITY:

1. ACCORDING TO FLEMMING:
“Vicarious Liability is a principle where the law holds one person
responsible for the misconduct of another.”

2. ACCORDING TO SALMOND:
“Vicarious liability is a liability without fault.”
D. PRINCIPLES UNDERLYING THE DOCTRINE OF
VICARIOUS LIABLITY:
The doctrine of vicarious Liability is based on the following
principles:

1. “Respondent Superior.”:
It means that a principal must answer for the acts of his
subordinates.

2. “Qui facit per alium facit perse.”

It means he who acts through another is deemed in law as doing it
himself.

E. ARISEMENT OF VICARIOUS LIABILITY:

Vicarious Liability arises in the following three ways.

a. LIABILITY BY RATIFICATION:

1. Meaning:
Ratification is the act of adopting a transaction by a person who
was not bound by it originally because it was entered into by an
unauthorized agent. It is an act of confirmation.

2. Essentials of valid ratification:

Ratification is an act of adoption, confirmation or authorization
by the principal of his employee’s act. Its essential features may
be laid down as follows:

(a) He who acts must purport to act as an agent and must in fact
act as such.
(b) The principal must be in existence at the time of the act
either in fact or in contemplation of law.
(c) The principal must have full knowledge of the facts and the
nature of the act which has been done in his name and on his
behalf. If anyone wants to ratify, he must ratify the act fully,
one cannot choose between benefits and losses arising from
the act. Mistake or ignorance of the principal is no defence
for him.
(d) The act of ratification is equal to a prior command.
(e) The adopter must be competent to do so. The ratifier might
himself have lawfully done the act which he ratifies.
(f) Illegal or void acts cannot be ratified.
(g) Whether the authority to perform the act was given prior or
subsequent to the act is in general immaterial if one acts on
behalf of another.
(h) Ratification relates back to the time when the wrongful act
was done and thereupon becomes equivalent to a previous
command. It may render such an act an Act of State, if
ratification is by a sovereign power.
(i) Ratification does not relieve an agent from liability to third
parties.
 (j) Mere passive acquiescence is no authority.

b. LIABILITY ARISES OUT BY RELATIONSHIP:

Relationship creating liability dissolves itself into following sub-
heads:

(a) Master and Servant.

(b) Owner and Independent contractor.
(c) Principal and Agent.
(d) Company and its Directors.
(e) Firm and its Partners.
(f) Guardian and Ward.

a. Master and Servant:

(1) Meaning of Master and Servant’s

Relationship:
A servant is not a person who voluntary agrees, whether for wages
or not subject himself at all times during the period of service to
the lawful orders and directions of another in respect od certain
work to be done.

A master is the person who is legally entitled to give the order and
to have them obeyed.
 The relation master and servant exist only between the person of
whom the one has the order and control of the work done by the
other.

(2) Principles based on which vicarious

liability of Master is based:
The principle of vicarious liability of master for the torts of his
servant is based on the following maxim:
“Respondent Superior”
It means that a superior must answer for the acts of his
subordinate.

(3) Essentials:
 The person committing the tort must be a servant.
 The tort committed by the servant must be in the course of
his employment.
 The act must be a wrongful act authorized by the master or a
wrongful and unauthorized mode of same act authorized by
the master.

(4) Reasons for vicarious liability of

master:
The reasons for vicarious liability of master for torts of his servant
are as follows:

 Master can usually pay for damages while servant cannot.

  Master profit from servant’s service.
 Master has power to hire and fire servant.
 Master is superior and servant is inferior.
 Master’s negligence to select his servant.

(5) Cases where Master is not liable for

the wrong of his servant:
In the following cases master is not liable for the wrongs of his
servant:

 Cases where the servant departed from the direction given to

by the master.
 Case where the act done is outside the course of service.
 Case where servant delegates his duties to another person.
 Case where master is obliged by law to employ a particular
servant.

ii. Employer and Independent Contractor:

(1) Meaning:
A person who employees another person to do an act on the basis of contract
is called Employer.

An independent contractor is one who undertakes to produce a given result

without being in any way controlled as to method by which he attains that
result.
(2) General Rule:
As a general rule an employer is not vicariously liable for the tort committed
by his independent contractor in course of completion of contracted work.

(3) Exceptions:
There are some exceptions to the rule that a person employing is not liable
for his contractor’s workful acts.

 In strict liability cases.

 Where the employer retains his control over the contractor and
personally interferes so as to make himself a party to the act occasion
damage.
 Where the thing contracted to be done is itself unlawful.
 Where the thing contracted to be done is of dangerous nature.
 Where employer was negligent in the selection of independent
contractor.

iii. Principal and Agent:

A principal is liable to third person for wrongful act of his agent:

(i) If it was one in the course of his employment, although

principal did not authorize or justify it.
(ii) If the act was beyond the scope of agency, it must have been
expressly authorized by the principal or subsequently ratified
by him.
iv. Company and Directors:

The ordinary principles of agency apply to companies which are

consequently liable for the negligence of their servants, and for the
torts committed by them in course of their employment.

v. Firm and Partners:

The relation of partners inter se is that of principal and agent, and

therefore each partner is liable for the act of his fellow. Every partner
is liable to make compensation to third person in respect of loss or
damage arising from the neglect or fraud of any partner in the
management of the business of the firm.

vi. Guardian and Ward:

Guardian are not personally liable for torts committed by minors

under their charge. But guardians can sue for personal injuries to some
minors under their charge on their behalf.

c. LIABILITY OF ABETMENT:
Abetment is the act of stirring up or exciting, maintaining,
patronizing, encouraging or setting on. An abettor or is an
instigator or setter who promotes or procures a tort or a wrongful
act to be committed.
For Example:
A person who knowing that a motorist is going to drive,
surreptitiously adds alcohol to his drink so as to bring his blood
alcohol concentration above the statutory limit is guilty of
procuring the subsequent offence. As in crime so in tort abettors
are equally liable with those who commit wrongs.