Vicarious Liability means the liability of a person for an act committed by another person and such liability arises due to the nature of the relation between the two. When an agent commits a tort within the course of performance of his duty as an agent, the liability of the principal arises for such a wrongful act. The agent is liable because he has done the wrongful act. The principal is liable vicariously because of the principal- agent relationship between the two. Both are often made responsible for an equivalent wrongful act. They can be considered as joint tortfeasors and their liability is joint and several. In such a case, the plaintiff has a choice to sue the principal, or the agent, or both of them.

In a Master-Servant relationship, the master employs the services of the servant and he’s employed on the command of master and thus a special relation exists between the 2 and in case of a tort being committed by the servant, his master can also be held liable. The liability of master is based on following two maxims:

• Qui Facit per alium facit per se: “He who does an act through another is deemed in law to do it himself”
• Respondent Superior: “Let the principal be liable”

Similarly, the relationship between partners is that of principal and agent i.e. termed as mutual agency. Any tort being committed by a partner in the ordinary course of business, then all other partners are liable to that extent only. In Hamlyn vs Houston & Co.[1], one of the two partners of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him relating to his employer’s business. It was held that both the partners of the firm were held liable for this wrongful act (i.e. inducing breach of contract) committed by just one of them.

ESSENTIALS OF VICARIOUS LIABILITY:

• The servant has committed an act which amounts to a tort
• Such a tortious act is committed by the servant during the course of his employment
• under the master

DOCTRINE OF COMMON EMPLOYMENT:

The rule of Doctrine of Common Employment was an exception to the rule that a master is liable for the wrongs of his servant committed on the course of his employment. The rule was first applied in 1837 in Priestly vs Fowler[2], developed in 1850 in Huthinston vs York, Castle and Berwick Rail Co.[3] and it had been firmly established as a neighbourhood of English Law by subsequent decisions. The doctrine was that a master wasn’t responsible for the negligent harm done by one servant to a different fellow servant acting within the course of their common employment.

In Priestly vs Fowler, the plaintiff, who was the defendant’s servant, was injured at his thigh due to breaking down of an overloaded carriage in the charge of another servant of the defendant. Since, both, the wrongdoer and therefore the injured person were the servants of an equivalent master, the doctrine of common employment was applicable and therefore the master was held not liable. The essentials for the appliance of the defence of common employment are: –

• The wrongdoer and the person injured must be fellow servants
• At the time of the accident, they must have been engaged in common employment

DIFFERNCE BETWEEN SERVANT AND INDEPENDENT CONTRACTOR:

A servant an agent who is subject to the control and supervision of his employer regarding the manner in which the work is to be done. An independent contractor isn’t subject to any such control. He undertakes to try to certain work and regarding the way during which the work is to be done. He is his own master and exercises his own discretion. As a general rule, the master is responsible for the torts committed by his servant, but an employer isn’t responsible for the torts committed by an independent contractor employed by him. In Morgan vs Incorporated Central Council[4], the plaintiff while he was on a lawful visit to the defendant’s premises, fell down from an open lift shaft and got injured. The defendant’s had entrusted the work of keeping the lift safe and in proper order to certain independent contractors. It was held that for this act of negligence on the part of the independent contractors in not keeping the lift in safe condition, the defendant’s couldn’t be made liable.

CONCLUSION:

As the concept of vicarious liability is taking place in the criminal law as well, the cases pertaining to it must be solved with complete rationality and on the basis of strong evidence. Also, though the principle is not explicitly specified in any statute, but is well settled through various case laws. But sometimes it is necessary to make both the principal and subordinate (in this case master and servant) liable for the wrongful act to protect the interest of both the parties i.e. the injured and the offender.

REFERENCES:

WEBSITES-

• https://www.ejusticeindia.com/the-doctrine-of-common-employment/
• https://lawtimesjournal.in/vicarious-liability-2/
• https://blog.ipleaders.in/vicarious-liability-in-case-of-partners-in-a-law-firm-in-tort-law/

[1] [1903] 1 KB 81

[2] (1837) 3 M. and W. 1

[3] (1850) 5 Exch. 343

[4] 1936) 1 ALL E.R. 404.

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