Qui Facit Proj

NATIONAL LAW UNIVERSITY, ODISHA
LAW OF TORT
ARTICLE
ON
QUI FACIT PER ALIUM FACIT PER SE
Submitted to:
Mr. Amrendra Kumar Ajit
Submitted by:
Istuti Kapoor (16ba045)
Debarghya Chakraborty (16ba029)
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ABSTRACT
It is quintessential to inspect the origin and scope of vicarious liability, particularly in
India to arrive at a conclusive understanding of the liabilities of the master or the principal. In
order to achieve this goal, it is of utmost importance that we analyze all the basic elements of
vicarious liability and understand the role of ‘course of employment’ as the most essential
element. Our analysis will lead to a clear understanding of the liabilities for acts done in close
relation to the course of employment and also the criminal acts under vicarious liability.
RESEARCH METHODOLOGY
The present study is basically doctrinal study; exploration attempted is expressive in nature
with an expository way to deal with the subject. Both essential and auxiliary information has
been utilized and look at as a part of the comprehensive way with the end goal of the
exposition. The method of reference took after by the examination researchers is nineteenth
blue book reference.
HYPOTHESIS
We have noticed that vicarious liability in India has not been much focused on and there are
comparatively few landmark cases. Also, it is a well proven fact that the ambit of course of
employment is ambiguous and subjective which shall be critically analyzed to come to a
crystal clear conclusion about the course of employment.
RESEARCH QUESTIONS
1. What is the origin and horizon of the scope of vicarious liability in India?
2. What are the basic exceptions to the rule of vicarious liability?
3. What is the extent of the course of employment and what are the liabilities for the acts
done in close connection to the course of employment?
4. What is the extent of the vicarious liability of the state?
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5. What are the liabilities for the dishonest and criminal acts done by the servant or the
agent?
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CONTENTS
LIST OF ABBREVIATIONS
SC Supreme Court
HC High Court
Ltd. Limited
Co. Company
Corp. Corporation
All ER All England Law Report
AIR All India Reporter
HL House Of Lords
Edn. Edition
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LIST OF CASES
1) Stavely Iron and Chemical Co. v. Jones1

2) Imperial Chemical Industries v. Shatwell2
3) Dubai Aluminum Ltd. v. Salaam3
4) Rajasthan State Road Transport Corp. v. Kailash Nath Kothari4
5) H.E. Nasser Abdulla Hussain v. DCIT5
6) Morgan v. Incorporated Central Council6
7) National Insurance Co., Kanpur v. Yogendra Nath7
8) Lloyd v. Grace, Smith and Co.8
9) State Bank of India v. Shyama Devi9
10) Secretary of State v. RukminiBai10
11) Ready Mixed Concrete (South East) Ltd v Minister of Pensions
12) Ready Mixed Concrete(South East) Ltd v Minister Of Pensions and National
Insurance
13) General Engineering Services ltd. v. Kingston and saint Andrew corp
14) Smith v. Stages
15) Balcovske v. Stanley Theatre Co. Ltd
1
(1956) 1 All ER 403 : (1956) 2 WLR 479 (HL.).
2
ICI Ltd v Shatwell [1965] AC 656 .
3
Dubai Aluminum Ltd v Salaam [2002] house of lords (house of lords).
4
(1997) AIR 45 SC.
5
H.E. Nasser Abdulla Hussain v. DCIT. [2003] 84 ITD 43.
6
Morgan v. Incorporated Central Council, (1936) 1 All ER 404 217.
7
AIR 1982 All 385, 1984 56 CompCas 421 All.
8
Lloyd v Grace, Smith & Co [1912] AC 716.
9
State Bank of India v. Smt. Shyama Devi, AIR 1978 SC 1263.
10
Secretary of State v. Rukminibai, AIR 1937 Nag. 354 224.
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CHAPTERISATION……………………………………………………………………
1. ABSTRACT…………………………………………………………………………..2
2. RESEARCH METHODOLOGY…………………………………………………….2
3. HYPOTHESIS………………………………………………………………………..2
4. RESEARCH QUESTIONS………………………………………………………….2
5. LIST OF ABBREVIATIONS………………………………………………………..4
6. LIST OF CASES……………………………………………………………………..5
I INTRODUCTION……………………………………………………………………8
II ORIGIN AND SCOPE OF VICARIOUS LIABILITY……………………………...11
2.1) ORIGIN……………………………………………………………………..11
2.2) TRADITIONAL VIEW……………………………………………………..12
2.3) MODERN VIEW……………………………………………………………13
2.4) ORGANIZATION TEST…………………………………………………....13
2.5) MULTIPLE TEST…………………………………………………………...14
2.6) EXTENT AND SCOPE OF LIABILITY……………………………..…….15
2.7) COURSE OF EMPLOYMENT……………………………………………....17
2.8) CRIMINAL ACTS BY SERVANTS .………………………………………..19
2.9) ORIGIN IN INDIA……………………………………………………….…..19
III EXCEPTIONS………………………………………………………………………..22
IV VICARIOUS LIABILITY OF STATE……………………………………………….24
4.1) POSITION IN INDIA
V CONCLUSION…………………………………………………………………….27
7. BIBLIOGRAPHY…………………………………………………………………..28
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I. INTRODUCTION
(This chapter includes a brief introduction about the topic)
Qui facit per alium facit per se11 is a Latin maxim which means he who does an act
through another does it by himself. It is an essential part of the law of agency. The maxim
gives rise to the principle of vicarious liability of a master or a principal for the acts done by
their servant or agents respectively, in the course of employment. Few areas of law are
exclusively guided by the common law. Vicarious liability of employers is one such area.12
Generally, a person is liable for his own wrongful acts 13 and is not held responsible for
the acts of other people. However, in some cases the rule of vicarious liability is applied
which establishes the fact that a master is liable to third persons. This rule is applied only
when the master has given his implied command. This implied command is inferred from the
general scope of the course of employment14. The phrase has been majorly criticized on the
fact that it merely gives a fictional explanation of the concept.15 Law puts forward certain
reasons for holding a master liable even though he took the greatest of care in selecting his
servant. The first is the notion that an employer’s liability is founded on his own fault or
culpa in eligendo16. According to this theory, there is an irrefutable presumption that an
employer was negligent if his employee commits a delict17. One of the reasons is historical
and juxtaposes a servant’s identity with that of the slave in the archaic times. It is a
furtherance of the fact that a slave had no identity of his own and was dependent on the
master for the same. The second reason, called the solvency theory18, is rational and
considers the fact that which of the two- master or the servant is in the position to pay the
damages. If not for vicarious liability, tort law will lose its zeal because it won’t make sense
for the employees to ensure themselves against liability in employment. Therefore, Master
11
Bangia d (23rd edn, allahabad law agency 2013).
12
singh p, 'Vicarious Liability In India' [2014] vicarious liability.
13
peel W and goudkamp j, Winfield And Jolowicz On Tort (19th edn, 2016).
14
15
Singh G, Ratanlal And Dhirajlal's The Law Of Torts (26th edn, 2016).
16
17
murray s, 'The Extent Of An Employer’S Vicarious Liability When An Employee Act Within The Scope Of
Employment'.
18
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naturally being considered to have deeper pockets19 is held liable to pay the damages. Also,
vicarious liability helps in accident prevention because it gives the master a financial interest
in encouraging the servant to take care of the safety of others. Another reason is based on the
fact that since the employer enjoys the profit gained by these activities, he is also expected to
bear all the losses that come along.
Vicarious liability exists only in the presence of a certain elements-
1) The presence of a service relationship

2) The relation of the wrongful act to the relationship
3) The wrong should be done within the course of employment20
Vicarious liability is present in these of the following service relationships-
(1) Liability of the principal for the tort of his agent- For a tort committed by the agent, both
the principal and the agent can be held liable as joint tortfeasors. The agent is liable because
he has done the wrongful act21 and the principal is vicariously liable because of the special
principal-agent relationship between the two. In such cases it is the will of the plaintiff. He
can either sue one of them or both of them.
(2) Liability of partners of each other’s tort- For partners in a business firm, the same rule is
applicable. All the partners of the firm will be held jointly liable for the tort committed by
any one of them in the ordinary course of the business of the firm22.
(3) Liability of the master for the tort of his servant- Similarly, for master- servant
relationship, the master is held vicariously liable in addition to the servant23 for the wrongful
act done by the servant.
In order to figure out the presence of a contract of service, Lord Thankerton pointed out four
indica-
1) Master’s power of selection of his servant
19
20
21
dew m, 'Vicarious Liability Of Owners For The Acts Of Independent Construction Contractors | Legaltree.Ca'
(Legaltree.ca, 2016)
<http://www.legaltree.ca/owner-liability-contractor-negligence> accessed 3 September 2016.
22
23
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2) Payment of wages or other remuneration
3) Master’s right to control the method of doing the work
4) Master’s right of suspension or dismissal24
The power of control is the most significant aspect as the others are not exclusive to the
contract of service. In all the cases, the master is held vicariously liable along with the servant
for all of the cases which involve a service or a fiduciary relationship. However, the master
will be held primarily liable if there is a non-delegable duty laid on him by common law or
statute or when he is negligent in making selection of his servant. 25
The project will focus on the different kinds of fiduciary relationships, origin and scope of
vicarious liability in general and India in particular and the traditional and modern view on
the same. It will also discuss the exceptions to the rule, the ambit of the course of
employment, acts outside the course of employment and also criminal acts under vicarious
liability. We will discuss the following cases during the course of this project:
1) Stavely Iron and Chemical Co. v. Jones26
2) Imperial Chemical Industries v. Shatwell27
3) Dubai Aluminum Ltd. v. Salaam28
4) Rajasthan State Road Transport Corp. v. Kailash Nath Kothari29
5) H.E. Nasser Abdulla Hussain v. DCIT30
6) Morgan v. Incorporated Central Council31

7) National Insurance Co., Kanpur v. Yogendra Nath32
8) Lloyd v. Grace, Smith and Co.33
9) State Bank of India v. Shyama Devi34
24
25
26
(1956) 1 All ER 403 : (1956) 2 WLR 479 (HL.).
27
ICI Ltd v Shatwell [1965] AC 656 .
28
Dubai Aluminum Ltd v Salaam [2002] house of lords (house of lords).
29
(1997) AIR 45 SC.
30
H.E. Nasser Abdulla Hussain v. DCIT. [2003] 84 ITD 43.
31
Morgan v. Incorporated Central Council, (1936) 1 All ER 404 217.
32
AIR 1982 All 385, 1984 56 CompCas 421 All.
33
Lloyd v Grace, Smith & Co [1912] AC 716.
34
State Bank of India v. Smt. Shyama Devi, AIR 1978 SC 1263.
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10 )Secretary of State v. Rukiminibai35
35
Secretary of State v. Rukminibai, AIR 1937 Nag. 354 224.
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II. ORIGIN AND SCOPE OF VICARIOUS LIABILITY
(This chapter provides a clear understanding of the origin and scope of vicariuous
liability,course of employment and the criminal acts by the servant)
2.1) ORIGIN
Vicarious liability is a doctrine of no fault liability in terms of which one person is held liable
for the unlawful acts of another. No fault liability normally applies in situations where a
particular relationship exists between persons. 36
The most important aspect in the tort law is the compensation which the plaintiff is
entitled to. The origin of vicarious liability is necessarily based on the fact, as already
mentioned in the introduction , that defendants were usually poor and not in a position to
compensate for the damages. This gave rise to a right given to the plaintiff wherein he could
fix responsibility upon someone other than the tortfeasor37. This complete liability for the tort
of someone else changed to the concept of the liability of the principal only when the act
done by the servant as in the ambit of the command given by the master. Until the
seventeenth century, the master’s liability was restricted to cases where he had particularly
commanded the very act complained of. However this became controversial and a lot of
complexities arose. Sir John Holt established the rule that the master was liable not only for
acts done at his express command but also for those done by his implied command38. The
implied command can be understood on the basis of the authority given to the servant. This
was when the concept of scope of employment came in. However, at this point of time, the
presence of the service relationship, the master-servant relationship was not a relevant
condition. All the other relationships which involved the a command which could be implied
served the same purpose.
In 1849 it was at long last held that the activity of expert and hireling relationship was
crucial39 The expert's obligation is gotten from the relationship and is really vicarious. Amid
36
Bangia d (23rd edn, allahabad law agency 2013)
37
'E-Lawresources.Co.Uk' (E-lawresources.co.uk, 2016)
<http://e-lawresources.co.uk> accessed 3 September 2016.
38
39
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that time the expression "implied authority" which had been the essential premise of the
expert's obligation gives route step by step to the present day "course of employment".
There are two ideologies related to the presence of a service relationship- the traditional view
and the modern view.
2.2) TRADITIONAL VIEW
The traditional view exclusively consists of the test of control.
A master is one who not only prescribes to the workmen the end of his work but directs or at
any moment, may direct the means also; retains the power of controlling the work 40. The
conventional method of expressing the qualification is that in case of servants, the employer
notwithstanding coordinating what work the servant is to do, can likewise offer headings to
control the way of taking every necessary step; yet if there should be an occurrence of a self
employed entity, the employer can just direct what work is to be done however he can't
control the way of doing work. The test of control was based upon the social conditions of an
earlier age41 and was well suited to govern relationships like those between a farmer and an
agricultural laborer, a craftsmen and a journeyman, a householder and a domestic servant and
even a factory owner and an unskilled hand42. But in cases of extremely professional
relationships, the purpose of the control test gets defeated and hence it is not so frequently
used. In Dharangadhara Chemical works ltd. v. state of Saurashtra43, the Supreme Court
decided that the right of the master to exercise control over his servant varies44. It is a prima
facie test45. The court mentioned that it was not possible to draw a line on the control of
power and hence the test would not be applicable everywhere and therefore will not be an
essential element. According to Lord Wright, that more complex tests need to be applied as
the cases pertaining to the master-service relationship are very complicated46. He suggested a
test that would include-
1) Control
40
keelyin l, 'The Development Of Vicarious Liability Law Employment Essay'[2009]SL 32.
41
42
43
Employment'.
44
45
46
Employment'.
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2) Ownership of the tools
3) Chance of profit
4) Risk of loss47
2.3) THE MODERN VIEW
The nature of employment test-
One accepted view is that people who have a contract of service (an employment contract)
are employees, but people who have a contract for services (a service contract) are
independent contractors.48
The servant gives his consent that he will perform some skill or service for his master in
exchange of a wage or salary.
He also gives his consent that he will be entitled to follow the express or implied commands
of his master to a certain extent, during the period of his service
The other provisions of the contract are consistent with its being a contract of service.49
2.4) ORGANIZATION TEST
This test looks at the integration of the worker into the employer's business and asks, does the
worker economically depend on a company or if the worker’s work or activities is an
essential component of the business, if the answer is yes, then the worker will be likely to be
considered as an employee .50 In deciding the relationship between the employer and
employee, the control test neglected to accommodate a precise result hence the association
test was utilized as a part of the instance of Stevenson Jordan and Harrison Ltd v. MacDonald
and Evans51 for this situation Lord Denning specified in his judgment that, "it is often quite
easy to recognize a contract of service when you see it, but very difficult to say wherein the
difference lies. A ship’s master, a chauffeur, and a reporter on the staff of a a newspaper are
47
Employment'.
48
Employment'.
49
Employment'.
50
keelyin l, 'The Development Of Vicarious Liability Law Employment Essay'.[2009] SL 32.
51
keelyin l, 'The Development Of Vicarious Liability Law Employment Essay'.[2009]SL 32.
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all employed under a contract of sevice, but a ship’s pilot , a taxi - man, and a newspaper
contributor are employed under a contract for sevice. One feature which seems to me to run
through the instances is that, under a contract of service, a man is employed as part of the
business and his work is done as an integral part of the business, whereas under a contract for
services his work, although done for the business, is not integrated into it is only accessory to
it."52 Basically what judge implied was that despite the fact that there was another component
in deciding the relationship, there is not the slightest bit a straightforward and totally precise
test that can figure out if an agreement is of administration or for administration.
2.5) MULTIPLE TEST
Every once in a while the control test and the association tests are hard to apply because of
the absence of control of the employer over the strategy on how the work is to be finished.
Other than that it additionally identifies with the absence of clarity in the circumstance.
Various tests were produced by the courts to test the occupation status and this incorporates
the economic reality or multiple tests. The mulitple test was advanced by Mackenna. J on
account of Ready Mixed Concrete (South East) Ltd v Minister of Pensions (1968) 53. As per
the judge three conditions must be fulfilled if the wrongdoer is to be appropriately viewed as
n employee: The worker has consented to give service consequently to a compensation, a
level of control is practiced by the master, and any terms found to exist are not conflicting
with occupation in that capacity. What's more, the courts have thought that it was important
to check various variables while considering whether the tortfeasor is a worker, such figures
are not definitive themselves but rather help simultaneously. Elements, for example, whether
the individual possesses the devices of his exchange, his risk for duty and National
Insurance). Additionally checked is the technique for installment, does the individual get a
consistent installment or wage or does he get an irregular installment once his work is
finished. The control test is still utilized, yet plainly in the light of these advancements; it can
never again be indisputable. The courts now acknowledge that no single test could decide the
business and worker relationship, too to cover the assortment of work circumstances, and
rather they take a gander at all circumstances and certainties of the specific case and the level
of control. After the prior test has been reprimand for not having the capacity to display a
reasonable relationship, the test taking into account judgment skills approach which is the
52
53
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multiple test is used to issue experience to prior tests.. Such can be found on account of the
Ready Mixed Concrete(South East) Ltd v Minister Of Pensions and National Insurance
54
.There are three components which the court held that must be satisfied to build up contract
of service, which is that the worker or the servant concurs that he will utilize his own
particular ability and the master pays him either in fiscal structure or in whatever other type
of renumeration. Besides the representative or hireling concurs, whether impliedly or
explicitly, that he will be bound by the master’s directions and consequently is intelligent of
the master worker relationship. Thirdly, all different conditions in the understanding are
steady with the way of the occupation, which is a contact of administration.
In a famous case of Imperial Chemical Industries v Shatwell, the claimants were brothers
who were qualified shotfirers employed by the defendant. They were injured as a result of an
explosion at the defendant's quarry caused by the brothers' negligence. They had insufficient
wire to test a circuit to allow them to test from a shelter. Another worker had gone to fetch
more wire but the brothers decided to go ahead and test with the shorter wire55. Each brother
claimed against the defendant based on their employer's vicarious liability for the negligence
and breach of statutory duty of the other brother. The defendant raised the defence of volenti
non fit injuria56 in that the brothers had full knowledge of the risk and were acting against
express instructions. At trial the judge held that the defence of volenti could not apply where
there was breach of a statutory duty. This was upheld in the Court of Appeal. The appeal was
accepted and it was established that the act was deliberately and negligently done.
2.6) EXTENT AND SCOPE OF LIABILITY
With respect to vicarious liability, the term ‘course of employment’ is the most relevant. The
master is held vicariously liable only if the wrongful act done by the servant was in the
course of employment. In other words, for master’s liability to arise, the act must be a
wrongful act authorized by the master or a wrongful and unauthorized mode of doing some
act authorized by the master57. The master cannot held be liable if the wrongful act done by
the servant was his own and was not related to the master’s command in any way. This is an
54
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497.
55
<http://e-lawresources.co.uk> accessed 3 September 2016…
56
57
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echo of the principle stated by Salmond. He stated that the master can be held liable for the
acts he has not authorized but these acts should be direct or indirect modes to complete the
authorized acts.
To establish extent of liability, Salmond has given the close connection test58. The test has
been established to determine whether a particular act can be regarded as a mode of doing the
authorized act or not. The test determines the nature of the link between the two and it is this
link which makes the master liable. Sovthe plaintiff to obtain a judgement against the
master59 “must establish a relationship between the servant’s act and the master’s business.
The question will be whether the servant was just doing the act badly or not doing the act at
all, doing his own thing instead. Considerations of time, place, equipment and purpose will
all be relevant to this purely factual determination.”60
Master can even be held responsible for the fraudulent and criminal acts done by the servants
if it is established that these acts were in the scope of employment and were in any way
connected to the authorized task in hand.
In Stavley Iron and Chemical Co. v. Jones61, the question was whether the crane driver was
negligent or not during driving the crane.62 It was held that the master can be held laible only
if the crane driver was negligent and not just because he hit and injured a passenger due to an
inevitable accident.
In Rajasthan State Road Transport Corp. v Kailash Nath Kothari, RSRTC hired a bus from
a private owner. The driver of the bus negligently drove over a bridge with overflowing water
and unfortunately the bus was swept away, taking 23 lives. RSRTC pleaded that the driver of
the bus Gopal was not their employee and hence they were not vicariously liable for his
negligent act, even though they hired the bus. Rather, the owner of the bus Mr. Sanjay Kumar
should be held vicariously liable for the accident. The court agreed to their appeal and
decided that the liability of RSRTC would not in any way exceed an amount of 75,000 Rs.
In the case of Lloyd v Grace, Smith and Co., plaintiff had 2 houses for herself. She wanted to
improve the revenue from the houses so she went to the defendant company for seeking
advice. There in the office of the company she was greeted by the managerial clerk.
58
59
60
61
(1956) 1 All ER 403 : (1956) 2 WLR 479 (HL.).
62
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Managerial clerk asked her to sign some papers which he told her to be sale deeds intended to
go for public sale. In actual he was making her sign gift deed executed in his own name. He
then transferred all the money in his account and then resigned from the office. The Court
made the principal liable i.e the company as agent was acting in the capacity of employee.
2.7) COURSE OF EMPLOYMENT
Course of employment has always been a topic of discussion. The decision of whether a
certain act falls under the course of employment or not has always given a tough time to the
judges. There is universal confusion regarding the act being a mode of performing the
authorized act or it being a completely independent action, not falling under the course of
employment in any way at all. All that can be said is that taking a broad view of the scope of
employmement, the question generally is one of degree whether the wrongful act falls within
the permissible limits of the hypothetical line demarcating the area of authorized acts from
the unauthorized acts63.
The most simple method is to figure out if the act done by the servant is so deviated from the
authorized act that it can, in no way, considered as a method of performing the authorized act,
or in other words, the servant at the relevant time64 was “on a frolic of his own”65 or having
“a joy ride”66 instead of doing some act in the course of employment67.
However, it is to be noted that the master cannot be held vicariously liable until every elemnt
of the wrongful act performed by his servant does not fall under the ambit of course of
employment. Therefore, the master is not liable if the acts of his servant for hich he is
responsible do not in themselves amount to a tort but only amount to tort when linked to
other acts which were not performed in the course of the employee’s employment.
In General Engineering Services ltd. v. Kingston and saint Andrew corp.68, the appellant
owned certain premises at Kingston69. A fire broke out in the premise and the appellants
informed the fire brigade. The firemen took 17 minutes in reaching70 even though the usual
63
. Singh G, Ratanlal And Dhirajlal's The Law Of Torts (26th edn, 2016).
64
65
66
67
68
General Engineering Services ltd v Kingston and saint Andrew corp [1988] 3 All ER 867.
69
70
17 | P a g e
time to cover the distance is 3.5 minutes. The reason they took so long as because they were
following a go slow71 policy, as a part of industrial action. The point of contemplation was
that whether the employers of the firemen could be held vicariously liable i.e. whether the
step taken by the firemen was in the course of employment or not. The decision stated that
“their unauthorized and wrongful act was to prolong the time taken by the journey to the
scene of the fire, as to ensure that they did not arrive in time to extinguish it, before the
building and its contents were destroyed. Their mode and manner of driving, the slow
progression of starting and stopping, was not so connected with authorized act, that is driving
to the scene of the fire as expeditiously as reasonably possible, as to be a mode of performing
72
that act.” it was later discovered that this action as taken to bring the employers in trouble
as their demands were not being fulfilled. Hence, the act cannot be considered in the course
of employment and the masters cannot be held liable. In the absence of any prohibition, it
may be possible from the circumstances to infer authority in the servant to do certain acts not
covered by any positive direction. 73 Acts done under the implied authority of the master also
give rise to vicarious liability, and thus it is not just limited to the obligations of the contract
of service. Also, an employee travelling during his course of employment has been a point of
discussion. With relation to this, certain rules have been formulated by the house of lords74 in
Smith v. Stages75.
An employee travelling from his home to his workplace or taking the return journey is not
considered to be on duty as yet and thus any wrongful act during such a journey will not be
considered in the course of employment.
An employee travelling from his workplace for official purposes is on duty and thus any act
done will be in the course of employment. Even if the employee is travelling to a work place
other than his usual workplace, he will be considered in the course of employment. However,
any deviation from the normal path would get him out of the course of employment.
In H.E. Nasser Abdulla Hussain v DCIT, the assessee did the job of breeding and racing
horses. He claimed compensation under 74A, saying that he has suffered carry forward losses
under the head of ‘racing activity’. The claim was disallowed on the fact that the horses were
maintained by a stud farm. But in a further appeal it was held that the assessee could not do
71
72
73
laski H, 'The Basis Of Vicarious Liability' [2004] The Yale Law Journal.
74
75
Smith v Stages [1989] 1 All E.R. 833; [1989] I.C.R. 272
18 | P a g e
the entire work by himself and thus, he paid a certain amount to the stud farm to do it for him.
Hence it is the responsibility of the stud farm to look into the matter properly.
2.8) CRIMINAL ACTS BY SERVANTS
A man can be criminally subject for the demonstrations of another on the off chance that they
are a gathering to the offense. For example, the driver of the escape vehicle is blameworthy
of the equipped theft of a store despite the fact that the driver never left the auto, and the
whole burglary itself was conferred by others. The embodiment of vicarious liability in
criminal law is that a man might be held subject as the guilty party that is the culprit of a
wrongdoing whose actus reus is physically carried out by another person. It is trusted that
individual simply playing out the actus reus on the say of another is not blameless and
therefore is additionally made at risk for the offense. The law some of the time centers upon
the relationship between the litigant and the entertainer of the physical demonstrations and by
excellence of that relationship; it qualities the demonstrations of the last to the previous. It
ought to be underlined at the beginning that this type of obligation in criminal law is
particularly a special case as opposed to the guideline. The idea of vicarious liability is
primarily a common law guideline whereby a master is made at risk for the carelessness or
rupture of obligation of his representatives.
In Dubai Aluminum Ltd. v Salaam, Mr. salaam’s solicitors were seeking damages. Mr.
Salaam had done a fraud in the company and now his solicitors who drafted documents for
him asked for compensation. However, the court held that the company cannot be held
vicariously liable for the same.
2.9) ORIGIN IN INDIA
History, the record of past events gives us immense information on the development of
vicarious liability in India. Ancient, medieval and modern history gives us tremendous
76
materials to substantiate the development of compensatory jurisprudence in India.
To understand the present position with regard to the extent

of State liability in India, it becomes necessary to refer back to certain cases and the legal
position before the commencement of the Indian Constitution, 1950. The people of ancient
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India, considered the State and the Government as basic instruments for promotion of
peaceful and civilized life.77 There has been a lot of literature regarding the administration in
ancient India and it is this literature that helps us get a clear idea of the position of the king or
the master at that time. The most famous and informative literature includes vedas78 sutras79
smritis80 epics81 and the writings of foreign travelers. During Vedic period, the concept of
vicarious liability of the State was not so developed like the present day. The King had to
safeguard the life and property of the people.82 For all the rongs and losses, the king had to
compensate from the royal treasure. According to Manu “where common man would be fined
with Karshapana, the King shall be fined one thousand, which is the settled Law”.83
Therefore, once confirmed that the servant’s act as performed in the course of employment
for the advantage of the master, vicarious liability comes into the picture. Raj dharma’ was an
essential path to be followed by the King which defined the powers and obligations of the
King.84 However, holding the king responsible was barely a rule in theory and practically, it
wasn’t followed well. The vicarious liability of the state became more and more rigid with
the expansion of Aryans and the evolution of large empires. The powers and responsibilities
of the king increased but the system as not autocratic. Thus the king as bound by various
religious and moral obligations and as responsible for the mistakes of his servants to the
common people.
However, during the medieval period, the concept of vicarious liability did not develop so
much. The basic notion in the Mohammedan Jurisprudence, was to secure satisfaction for the
injured rather than to offer protection to the society at large.85 The law was the actual
sovereign in Muslim hand. 86 They followed the procedures of retaliation, compensation and
77
78
79
<http://e-lawresources.co.uk> accessed 3 September 2016
80
81
82
83
84
85
keelyin l, 'The Development Of Vicarious Liability Law Employment Essay'[2009] SL 32.
86
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restitution. Even the dignitaries of the period did not go unpublished for their wrongful acts.
They were compelled to accept their mistake and apologize for the same.
The liability of the State in India relating to tort claim is governed by public law principles
inherited from the British common law87. It is necessary to assess the extent of liability and
immunity of State in India during British Period.88
In National Insurance co, Kanpur v Yogendra Nath, two young boys on a bicycle were hit
by a negligently driven car, which belonged to a high court judge. He claimed that a local
peon, out of his course of employment and without the knowledge of the judge, took the car
and drove negligently, hitting the two boys. Since these facts were proved, the owner was not
held liable for the unauthorized acts of his servant.
It was in the case of Secretary of state v Rukminibai, that the decision held that the doctrine
of common employment can no longer be applied in India as it was against the principles of
justice, equity and good conscience.
87
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III. EXCEPTIONS
An independent contractor is a general exception to the rule of vicarious liability. The general
rule at common law is that a person who employs an independent contractor will not be liable
for loss flowing from the contractor's negligence.89 The owner will be at risk for misfortune
spilling out of carelessness in procuring or overseeing the contractual worker. Be that as it
may, in those examples the proprietor is not being held vicariously at risk for the
demonstrations of the temporary worker, yet is specifically obligated for his own
carelessness. This principle has been affirmed in the construction context: Balcovske v.
Stanley Theatre Co. Ltd90. the determination of whether the employee is a servant or an
independent contractor depends on the nature and element of relationship and not on the label
the parties give to themselves.
Hence, there are certain ways to demarcate whether the relationship is that of an independent
contractor or master- servant. A servant is an agent who is subject to the control and
supervision of his employer regarding the manner in which the work is to be done. 91 An
independent contractor is not subject to any control whatsoever92. The independent contractor
uses his own discretion93 and he is his own master. An independent contractor takes up the
task of fulfilling a certain task in exchange of money but he is not obliged to follow a
particular way to achieve his target. He can use his own logic and intelligence. A servant
however has to follow the certain mode of completion of task, as specified by the master. My
driver would be my servant but a normal taxi driver would be an independent contractor.
In morgan v. incorporated central council94, the plaintiff had gone to the defendant’s premise
95
for a lawful purpose. There he fell down from an open lift shaft and in injured himself.
However, it was discovered that the defendant had entrusted certain independent contractor to
keep a check on the lift shaft and therefore the contractors were held responsible.
89
90
91
92
93
94
95
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There are exceptions to this concept of independent contractor and in these cases the master
can be held liable for the fault of an independent contractor.
1) If an employer authorizes the doing of an illegal act, or subsequently ratifies the same,
he can be made liable for such an act96. The employer in such a case would be treated
as an independent tortfeasor because he is himself a party in the tort.
2) The presence of strict liability makes the employer vicariously liable for the act of the
independent contractor.
3) The liability of employer arises for all the cases that are caused on or near highways.
4) Owners will also be liable for activities which attract non-delegable duties.97
5) When the tort results in the breach of a master’s common law duties to his servant, he
would be liable for the same and it is no defence that the master was acting through an
independent contractor.98
6) If the wrong caused to the plaintiff is nuisance in the form of withdrawal of support
from the neighbour’s land, the defendant would be liable irrespective of the fact that
the act causing the said damage was done by an independent contractor.
In certain cases, the master cannot command the servant regarding the mode of completion of
the tasks. Such servants are not under the control of the master. Captain of a ship and surgeon
of a hospital cannot be commanded about how to complete the given task in hand. Thus there
are two types of servants and modern authorities bring both in the trend of modern authority
is to apply the hire and fire test. If a person hires an individual, pays him money and has
discretionary power with regard to firing the individual, he is the master for the purpose of
vicarious liability. The Charter Act 1753, explicitly perceived the activities against the
organization for matters identifying with the Government. The Regulating Act 1773, engaged
the Incomparable Court at Calcutta to arrangement all requests against the unified
organization of merchants exchanging toward the East Indies. The East India Company was
made vicariously subject for the wrongs of its hirelings under the Bengal Regulations.
In Morgan v. Incorporated Central Council, it was held that defendant was not liable when
plaintiff got injured in his premises by falling down from an open lift because that work was
under control of the independent contractor & it was his duty to keep safety.
96
97
98
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IV. VICARIOUS LIABILITY OF STATE
What exactly amplify the state would be at risk for the torts conferred by its servants is a
perplexing issue particularly in developing nations with constantly enlarging State exercises.
The liability of the state in tort is administered by the standards of public law acquired from
British Common law and the arrangements of the Constitution.
Not at all like Crown Proceedings Act, 1947(England), we don't have any statutory
arrangements stating the obligation of the State in India. The law in India concerning the
liability of the State for the tortious demonstrations of its workers has ended up ensnared with
the nature and character of the part of the East India Company preceding 1858. It is
accordingly important to follow the course of advancement of the law on this subject, as
contained in article 300 of the Constitution. The position of State liability as expressed in
Article 300 of the Constitution is as under: Clause (1) of Article 300 of the Constitution gives
to begin with, that the Government of India may sue or be sued by the name of the Union of
India and the Government of a State may sue or be sued by the name of the State; also, that
the Government of India or the Government of a State may sue or be sued in connection to
their individual issues in the like cases as the Dominion of India and the comparing Provinces
or the relating Indian States may have sued or be sued99, "on the off chance that this
Constitution had not been established", and thirdly, that the second said principle might be
liable to any arrangements which might be made by an Act of Parliament or of the
Legislature of such State, authorized by ideals of forces presented by the Constitution."
Thus, one needs to reveal the reach out of liability of the East India Company with a specific
end goal to comprehend the obligation parameters of the organization today in light of the
fact that the liability of the organization today is in direct progression to that of the East India
Company. The East India Company propelled its vocation in India as a simply business
enterprise however bit by bit procured sway. Hence, in the first place, the organization did
not appreciate the insusceptibility of the Crown. It was just when it procured political forces
that a refinement was made amongst sovereign and non-sovereign capacities.
4.1) POSITION IN INDIA
99
Munshi K, 'Historical Perspective Of The Liability Of State In India'.
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In India, we do not have any statutory provision, mentioning the liability of the state.100
Article 300 of constitution of India is as follows-
(1) The Governor of India may sue or be sued by the name of the Union and the Government
of a State may sue or be sued by the name of the State and may, subject to any provisions
which may be made by Act of Parliament or of the Legislature of such State enacted by virtue
of powers conferred by this Constitution, sue or be sued in relation to their respective affairs
in the like cases as the Dominion of India and the corresponding Provinces or the
corresponding Indian States might have sued or been sued if this Constitution had not been
enacted101
(2) If at the commencement of this Constitution102
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of
India shall be deemed to be substituted for the Dominion in those proceedings; and103
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State in
those proceedings CHAPTER IV RIGHT TO PROPERTY104
Article 300 of india thus provides that the union of india and the states are juristic persons for
the purpose of suit or proceedings. 105 in the case of peninsular and oriental steam navigation
company v. secretary of state for india, a boundary was drawn between sovereign and non
sovereign acts. Thus it was concluded that for every act falling under sovereign functions, the
state cannot be held liable. But if the act comes under non sovereign functions, the state
would be liable. A non- sovereign act is the one which could have been performed by any
individual106.
In the case of police officials, the same rule is applied. For every act of the police official that
comes under non- sovereign function, the state would be held liable.
100
101
The Constitution Of India ([Manager of Publications] 1951).
102
103
104
105
106
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However, though the maintenance of the army is a sovereign function but this does not
necessarily mean that the state would be immune from liability for any tortuous act
committed by the army personnel107. Here also, distinction can be drawn between acts which
could be done by the government in the exercise of sovereign powers and acts which could
have been equally done by a private individual108.
In the case of State of Rajasthan v. Vidyawati 109 the respondents documented a suit for the
harms made by a worker of a State and the case addressed whether the State was liable for the
tortious demonstration of its servant. The Court held that the liability of the State in
appreciation of the tortious demonstration by its servant in the scope of employment and
working thusly was like that of some other employer.. It was held for this situation that the
State ought to be as much subject for tort in admiration of convoluted acts conferred by its
hireling inside the extent of his work and working all things considered, as whatever other
business. The truths of this case may in no time be expressed as takes after. All things
considered, the case for harms was made by the dependants of a man who kicked the bucket
in a mishap created by the carelessness of the driver of a jeep kept up by the Government for
authority utilization of the Collector of Udaipur while it was being brought once more from
the workshop after repairs. The Rajasthan High Court took the perspective that the State was
obligated, for the State is in no better position in so far as it supplies autos and keeps drivers
for its Civil Service. In the said case the Hon'ble Supreme Court has held as under:
“Act done in the course of employment but not in connection with sovereign powers of the
State, State like any other employer is vicariously liable.”110 In the aforesaid case, the
Honorable Apex Court while approving the distinction made in Steam Navigation Co.’s case
between the sovereign and non-sovereign function observed that the immunity of crown in
the United Kingdom was based on the old feudalistic notions of Justice, namely, that the
King was incapable of doing a wrong111. The said custom-based law safety never worked in
India.
107
108
109 AIR 1962 SC 933.
110
111
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V. CONCLUSION
An employer can be held liable for his employee’s crime, as a general rule, only where the is
a participant in them within the rules governing. It is a matter of our understanding that
imposition of vicarious liability is the work of the courts rather than of Parliament. Statutes
do occasionally say, in terms, that one person is to be liable for another’s crime. It is more
common, however, for the courts to detect such as intension in statutes. The reason most
commonly advocated by the judges for holding a person liable under vicarious liability is that
the statute would be rendered nugatory and the will of Parliament thereby defeated if he were
not made liable. It may seem rather odd for the courts to be willing to impose liability for the
acts of another on grounds of expediency when the foundation of the criminal law is that a
person should be made liable only for his personal wrongdoings. But in certain cases it
becomes utmost important to make the principal also liable for the act of his subordinate so as
to protect the interest of both the parties i.e. the injured and the offender and to stop the blame
game amongst the principle and his subordinate.
It can be concluded by saying that though principle of vicarious liability is a civil concept yet
in a recent scenario it has taken a wide role under criminal jurisprudence too. To a certain
extend it is good also but every case decided under criminal law for vicarious liability should
be guided by basic rationality and clear evidence in order to classify the test of just, fair and
equal.
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BIBLIOGRAPHY
BOOKS
 Singh, Justice G.P. Ratanlal and Dhirajlal’s The Law of Torts.23rd edition, 1997
 Bangia, R.K. Law of TORTS (Including Compensation under Motor Vehicles Act &
Consumer Protection Laws)” revised by Dr.Narender Kumar, 23rd edition,2013
reprint 2015.
 Stephenson, Graham. Source book on torts, Cavendish publishing Ltd., 2nd
ed.,London (2000)
 Baker, C.D., “Tort”, Sweet and Maxwell, 6th ed., London (1996)
 Gillies, Peter. The Law of Criminal Conspiracy, Federation Press, 1990.
 Bhavani, M.N. Tortious Liability Emerging Trends.
 Winfield, Law of torts.
 Howarth, David. “Text book on torts”, Butter Worths publications Co., London(1995)
 Brazier R, Margaret, “Clerk and Lindsell on torts”, 17th edn., Sweet and Maxwell,UK
, (1995).
 Gerven, Walter Van, Tort law, Hart publishing, USA (2000).
ARTICLES
 Vaidya, Nidhi and Singh,Raghavendra. Conpiracy-A tortious liability under law.

 Pritikin, Martin.Toward Coherence in Civil Conspiracy Law: AProposal to Abolish
the Agent's Immunity Rule
 Goodman, Ellen.Civil Conspiracy: Better Dead than Alive?
 Schillings.The law of conspiracy: dirty tricks, corporate rivals and brand attacks.
ACTS AND STATUTES
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 Indian Penal Code, 1860
 Criminal Law Act 1977
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NATIONAL LAW UNIVERSITY, ODISHA

Mr. Amrendra Kumar Ajit

Istuti Kapoor (16ba045)

Debarghya Chakraborty (16ba029)

1) Stavely Iron and Chemical Co. v. Jones1

II ORIGIN AND SCOPE OF VICARIOUS LIABILITY……………………………...11

2.2) TRADITIONAL VIEW……………………………………………………..12

2.3) MODERN VIEW……………………………………………………………13

2.4) ORGANIZATION TEST…………………………………………………....13

2.5) MULTIPLE TEST…………………………………………………………...14

2.6) EXTENT AND SCOPE OF LIABILITY……………………………..…….15

2.7) COURSE OF EMPLOYMENT……………………………………………....17

2.8) CRIMINAL ACTS BY SERVANTS .………………………………………..19

2.9) ORIGIN IN INDIA……………………………………………………….…..19

IV VICARIOUS LIABILITY OF STATE……………………………………………….24

4.1) POSITION IN INDIA

(This chapter includes a brief introduction about the topic)

Vicarious liability exists only in the presence of a certain elements-

1) The presence of a service relationship

Vicarious liability is present in these of the following service relationships-

1) Master’s power of selection of his servant

1) Stavely Iron and Chemical Co. v. Jones26

2) Imperial Chemical Industries v. Shatwell27

3) Dubai Aluminum Ltd. v. Salaam28

4) Rajasthan State Road Transport Corp. v. Kailash Nath Kothari29

5) H.E. Nasser Abdulla Hussain v. DCIT30

6) Morgan v. Incorporated Central Council31

2.2) TRADITIONAL VIEW

The traditional view exclusively consists of the test of control.

2.3) THE MODERN VIEW

The nature of employment test-

2.4) ORGANIZATION TEST

2.5) MULTIPLE TEST

2.6) EXTENT AND SCOPE OF LIABILITY

2.7) COURSE OF EMPLOYMENT

2.8) CRIMINAL ACTS BY SERVANTS

2.9) ORIGIN IN INDIA

To understand the present position with regard to the extent

4.1) POSITION IN INDIA

(2) If at the commencement of this Constitution102

 Vaidya, Nidhi and Singh,Raghavendra. Conpiracy-A tortious liability under law.

ACTS AND STATUTES

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