VICARIOUS LIABILITY UNDER LAW OF TORTS
Vicarious Liability : Origin and Meaning
This concept makes one man liable for the acts of another because of certain relationships like Master and Servant, Parent and children etc. Originally it came from “Quit facit per alienum facit per se” (He who does an act through the instrumentality of another does it himself). This rule was inadequate to explain the reason. Later the “General command theory” was put forward and then “particular command theory”. None of these was satisfactory and the modern theory is that the master is liable because he is a substantial fellow or authority. As Winfield points out this theory is based on “Social convenience and rough justice“.
‘Servant’ and independent contractor distinguished : The Servant is a person who works according to the instructions of the master. The master can, not only order him to do an act but can also control how it should be done. The servant works under the thumb of the master. The master has full powers to control the acts of the servant. He has the powers of removal also. He is different from an independent contractor who undertakes to do a piece of job according to the requirements of the employer. The independent contractor is not under the control of employer. Hence, the employer is not liable for the acts of the independent contractor.
Liability of the Master: The master is liable for the acts of the servant, if the acts are done within the course of his employment otherwise, he will not be liable.
“Within the course of employment” means :
- Doing an authorised act
- Doing an authorised act in an unauthorised manner and
- Doing acts which are incidental thereto.
The act of the servant must fall into any one of the above, then only the master becomes liable. Broadly speaking the master is liable for carelessness, mistake and wilful wrong doing of the servant. Sometimes he is liable for the criminal acts of the servant.
Carelessness of the Servant: This is the most common kind of wrong which is generally due to the negligence of the servant. The intention of the servant is not material. If the servant is acting in the course of his employment, then the master becomes liable, but if the servant is on a frolic of his own then the master is not liable.
The leading case is Century Insurance Co. V. Northern Ireland Road Transport. In this case, the driver of a petrol lorry was transferring petrol from the lorry to the tank. He negligently struck a match to light a cigarette and threw it on the floor. This caused a conflagration and an explosion. The property of P was damaged. The defendant master was held liable for the careless act of the driver, as the act had been done in the course of his employment. “Lighting a cigarette was an act of the servant for his comfort and convenience”. The act was innocent, but was a negligent act of the servant, and hence the master was liable.
Mistake of the Servant: Here the servant is a mis-guided enthusiast. The leading case is Bayley V. Manchester Railway. The porter of the defendant Railway Co. violently pulled out from a train P who had a ticket to go to some destination. In fact, the porter had mistakenly taken P to be going in a wrong train. P sued and the Railway authority (master) was held liable.
In another case the servant of D suspected that sugar was pilfered by a boy from the wagon and he struck the boy, who fell and a wheel of the wagon went over his foot. D was held liable.
In another case a petrol bunk servant under a mistake, as to payment assaulted a car owner P who had taken petrol. The servant did not know that P had already paid for the petrol. The master was held liable for the act of the servant.
Wilful wrong of the servant: Here there are two rules.
- The act of servant is still in the course of employment even if it is forbidden by the master.
- It is not outside his employment if he intends to benefit himself, though not his master.
Limpus V. London General Omni -Bus Company: The driver, had printed instructions not to race with or obstruct other buses. The driver did not observe this and caused a collision. His master was held liable because this was an unauthorised manner of doing an authorised act.
The Beard V. London Omni-Bus. the driver brought the bus to a terminus and went out for breakfast. In the meanwhile the conductor drove the bus for the next journey. In so doing he dashed against and caused injury to P. P sued. It was held that the master was not liable as the conductor was not in the course of employment when he was driving the bus.
In another case, the driver, had printed instructions not to give lift to any unauthorised person. The driver violated it, gave lift to P and there was a collision resulting in the death of P. It was held that the master was not liable for the act of the driver.
In Lloyd’s Case, D was a firm of solicitors. It had employed a clerk to do its work. P a widow was the owner of some cottages. She went for professional advice and the clerk asked her to execute documents, which she did. Here he had conveyed cottages to himself. The court held that D the master was liable for the wilful wrong doing of the servant clerk.
Criminal acts of the servant: The general rule is that only in some cases master is liable. In Morris V. Martin, P gave her furcoat for dry cleaning to X who handed it over to D. The servant of D sold it away. It was held that under the circumstances D was liable for the criminal act of the servant. The master is not liable except in some cases where the act amounts to fraud or theft or assault.
An independent contractor is a person appointed by the employer to turn out a piece of job. He is different from a servant in as much as a servant is a person who works under the control and supervision of the master. For the acts of independent contractor the general rule is that the employer is not liable. There are a number of exceptions. These are the non-delegable duties.
According to Winfield the question is always whether the damage is caused due to the employer’s breach of duty. The duties of the employer are divided into delegable and non-delegable. This means, the non-delegable functions must be performed by the employer himself. But if he delegates such a function to an independent contractor, the employer himself becomes liable.
There are a number of non-delegable duties :
- Delegation may be a breach of duty itself and the employer may be negligent in giving instructions or information to the independent contractor. In a case, a gas company had no authority to interfere on the Highways. Independent contractor’s servant negligently left a heap of stone over which the plaintiff fell and was injured. Held, the employer was liable. (Ellis V. S. G. Co.)
- Obligations of the employer are to provide, a competent staff of men, adequate material and a proper system of effective supervisor If he does not follow these, the employer becomes liable. ‘
- Operations on or adjoining the highways : In Tarry V. Ashton there was a over-hanging lamp of D on the foot way. D appointed independent contractor to repair who did it negligently. The lamp fell on P a passer-by. It was held that the employer D was liable.
In Grey V. Pullon the defendant D had statutory authority to make a drain from his house to a sewer across the road. He appointed independent contractor to cut trenches, who did it but negligently filled it up. The plaintiff P a passenger, was injured. D was held liable.
- Case of strict liability : The rule in Ryland V. Fletcher is applicable in respect of bringing and storing of items which cause injury when they escape. In such case the employer is liable.
- Cases of statutory authority : The recent enactments have fixed the liability of the employer under the Factories Act, Workmen’s Compensation Act etc. In Padbury’s case, D employed a subcontractor to put casements to the windows. In so putting, an iron tool which had been kept by the servant on the window sill, fell and injured P on the street. P sued D. The court held that D was not liable as the tool was not placed in the ordinary course of doing work. There was only a collateral negligence of D.
- When the employer personally interferes and gives directions to the independent contractor the employer becomes personally liable.
When two or more breaches of legal duty by different persons result in a single injury to the plaintiff- P, then the two or more persons are called joint Tort Feasors. According to Lord Justice Bankers “Persons are said to be Joint tort feasors when their shares in the commission of tort are in furtherance of a common design”.
In Brook V. Bool : Two men were searching for a gas leak. Each applied naked light to the gas pipe in turn and one of them caused explosion. They were held to be joint tort feasors. This is different from a case where two ships negligently collided and later dashed against another vessel negligently. This is also different from a tort committed by a child under the directions given by the parents.Contribution : Both the joint tort-feasors are liable in tort. But, the plaintiff can claim the amount in full from one of them. Question arises in such cases whether one tort-feasors may claim indemnification from the other.
In Merry Weather V. Nixon. A and B jointly damaged the machinery in C’s mill. C sued them jointly and got compensation which he recovered from A. Now A sued B for half the amount which he had paid. It was held that A could not recover from B. This decision has been reversed by the Parliament in England in the Law Reforms Act 1935. According to this one tort-feasoor can recover his contribution from the other tort-feasor. Hence he is entitled to be indemnified.