Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondent superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control” the activities of a violator. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee. Vicarious liability is the liability of one person for the torts committed by another person by virtue of their relationship. Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases, however, vicarious liability, that is the liability of one person for the act of another person, may arise. In order that the liability of A for the act done by B can arise, it is necessary that there should be a certain kind of relationship between A and B, and the wrongful act should be, in a certain way, connected with that relationship.
The common examples of such liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.
So Vicarious Liability deals with cases where one person is liable for the acts of others. It is based on the principle of ‘qui facit per se per alium facit per se’, which means, “He who does an act through another is deemed in law to do it himself”. So in a case of vicarious liability both the person at whose behest the act is done as well as the person who does the act are liable. Thus, employers are vicariously liable for the torts of their employees that are committed during the course of employment.
Under torts or civil law, a person may also be liable for the wrongful act or omission of some other party in the following ways-
- If the person abets the wrongful act or omission committed by the other person.
- If the former ratifies or authorizes the act of the other knowing that the act committed or omission done was tortious in nature.
- As standing towards the party who committed a wrong in such a relation that it entails responsibility for the acts or omission done by the other person.
The concept of “in the course of employment” also comes into play. An act is deemed to be done in the course of employment if the authority to give a wrongful act is given by the master to the servant, or some legal act is done by the servant in an illegal way.
The judicial pronouncement of Short v J&W Ltd. is the first case that gave the conditions that were needed to be fulfilled in order to make the master vicariously liable for the acts of the servant. The Court observed that the master should have the power to select his servant. Further, the master controlled the way his servant worked, and the master also had the right to dismiss or suspend the services of the servant. But in the Indian case of Dharangandhara Chemical Works v State of Saurashtra, it was held that sometimes these conditions needed to be diluted because it was not always possible to full fill all the conditions simultaneously. But the control of the master wouldn’t be diluted, and he’ll be liable for the acts of the servant.
Constituents Of Vicarious Liability
So the constituents of vicarious liability are:
- There must be a relationship of a certain kind.
- The wrongful act must be related to the relationship in a certain way.
- The wrong has been done within the course of employment.
Liability of State for Acts of Employees
In England, the state cannot be held liable for the acts which have been committed by its servant. The principle behind this is based on the doctrine of Rex non-potest peccare which states that the King can do no wrong.
In India also, the same position existed till 1967 and the State couldn’t be sued for the action of its servants. But in the judicial pronouncement of Superintendent and Legal Remembrancer, West Bengal v Corporation of Calcutta, it was held by the Court that the principle that the State isn’t bound by any statute is not the law of the land after the Constitution has come into force. Civil and criminal statutes now apply to citizens and state alike. In the case of Saheli v Commissioner of Police, the Court was of the opinion that the concept of sovereign immunity does not hold good with the evolution of law, and Constitutional Regime and the State can also be made liable.
It can be said that the concept of vicarious liability is a civil one, but with the evolution of law, the Courts have started to apply the doctrine to criminal cases also. Sometimes it becomes very important to fix liability on the principal, so as to protect the interest of the aggrieved party and also to avoid blame game between the parties, which in turn may delay justice.