VICARIOUS LIABILITY BY ABHISHEK RANA

Vicarious Liability.

The doctrine of vicarious liability can also be termed as the heart of the common law. Generally, a person is liable for a tort committed by himself but sometimes a person may be liable for a wrong committed by somebody else such liability is called vicarious liability. For example- a tort is committed by B so B is liable for the tort who was at that time working under C if C is also liable for the tort then C is vicariously liable for the tort.

For vicarious liability to arise there must be a relationship between B and C. The wrong committed must have some connection with the relationship.

Relationship between B and C

  • Principal- Agent
  • Partners
  • Master-servant

Common examples of vicarious liability are:

  • Liability of the principle for the tort committed by the agent
  • Liability of partners for each others tort
  • Liability of the master for servant’s tort

 

Liability of principal for a tort committed by his agent

Relationship between principal and agent:

  • Fiduciary relation based on trust and confidence here principal puts his trust in agent and delegates some of his authority to the agent.
  • Delegation of the authority of some authority
  • Agent is always expected to act for the greatest benefit of the principle.

Example: A lives in Delhi and A has a shop in Bombay by name company X . A appoints B in Bombay as his agent. A puts his trust in B and authorizes to buy goods for company x from company y and make payment to company y. B acts for the greatest benefits of A.

*When an agent commits a wrong or tort in the ordinary course of performance of his duty as an agent the principal is vicariously liable.

Suppose B takes the delivery of goods from company Y but doesn’t make payment to company y then B is liable ( because B committed tort)  and A is vicariously liable (because of principal-agent relationship) hence A & B are joint liability.

 

 

Liability of Partners

joint and several liability

Liability of Master-Servant

Vicarious liability of master is based on the maxim ‘respondent superior’ meaning ‘let the principal be liable’.

For the liability of the master to arise the following two essentials are to be present:

  • The tort was committed by the servant
  • The servant committed the tort in the course of his employment.

As a general rule master is liable for the tort of his servant but he is not liable for the tort of an independent contractor.

Who is a servant?

A servant is a person employed by another person to do his work in doing the work the servant is under the control and directions of the master.

Independent Contactor?

An independent contractor is not subject to the control and supervision of his master he uses his own discretion.

Tests :-

Control test:

In control test servant works under the control of the master and follows the direction given by the master. But an independent contractor uses his own discretion while working and he is not works under the control of anyone.

Hire and fire test:

A employs B. A is B’s pay master. A has the power to fire B. A is B’s master for the purposes of vicarious liability.

Eg: surgeons in government hospitals are state servants. Similarly, engineers employed by municipal corporations are servants of municipal corporations.

 

 

Lending a servant to another person:

when A lends is servant  to B and X commits a tort against C the question is who is to be considered the master A or B and whom can C sue for B’s tort committed by X.

so the answer depends mainly on two considerations: who of the two masters has the authority to tell the servant what is to be done and the way in which he is to work.

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