B.A., LL.B. (Hons.

) / Second Trimester- Dec, 2016

Law of Torts
Final Draft

Vicarious Liability in Torts

Submitted By:
Priyanshu Agarwal
B.A., LL.B. (First Year)
A002

Submitted To:
Dr. Aarti Tolia
Assistant Professor (Law of Torts)
School of Law, NMIMS (Deemed to be University)

1
Contents

LIST OF CASES ...................................................................................................................................... 4

ACKNOWLEDGEMENT ......................................................................................................................... 5

CHAPTER 1: INTRODUCTION ............................................................................................................... 6

CHAPTER 2: MASTER-SERVANT RELATIONSHIP .................................................................................. 7

1. NEGLIGENCE BY THE SERVANT:................................................................................................... 8

2. MISTAKE BY THE SERVANT: ......................................................................................................... 8

3. FRAUD BY THE SERVANT ............................................................................................................. 8

4. EXPRESS PROHIBITION ................................................................................................................ 9

5. DELEGATION OF A DUTY BY THE SERVANT TO A THIRD PARTY: ................................................. 9

6. LENDING SERVANTS TO OTHERS: .............................................................................................. 10

7. HOSPITAL CASES ........................................................................................................................ 10

8. INDEPEDENT CONTRACTORS: ................................................................................................... 11

CHAPTER 3: PRINCIPAL AGENT RELATIONSHIP ................................................................................. 11

CHAPTER 4: PARTNERS...................................................................................................................... 13

CHAPTER 5: VICARIOUS LIABILITY OF THE STATE.............................................................................. 14

1. ACTS OF POLICE OFFICIALS........................................................................................................ 14

2
 2. ACTS DONE IN EXERCISE OF SOVERIGN POWERS ..................................................................... 15

3. ACTS DONE IN EXERCISE OF NON SOVERIGN POWERS............................................................. 15

4. LIABILITY OF THE ELECTRICITY BOARD ...................................................................................... 16

5. LIABILITY OF GOVERNMENT DEPARTMENTS ............................................................................ 16

CHAPTER 6: DEFENSES ...................................................................................................................... 17

CONCLUSION ..................................................................................................................................... 18

BIBLIOGRAPHY .................................................................................................................................. 19

3
 LIST OF CASES

 Century Insurance Co. v. Northern Ireland Road Transport Board

 Barley v. Manchester, Sheffield and Lincolnshire Ry
 Lloyd v. Grace Smith & Co
 Limpus v. London Omnibus and Co
 Ricketts v. Thomas Tilling Ltd
 Mersey Docks & Harbour Board v. Coggins & Griffiths Ltd
 Hillyer v. St. Bartholomew’s Hospital
 Morgan v. Incorporated Central Council
 State Bank of India v. Shyama Devi
 Ormrod v. Crosville Motor Services Ltd.
 Hamlyn v. Houston & Co
 State of Assam v. Md. Nizamuddin Ahmed
 Pagadala Narasimham v. The Commissioner & Special Officer, Nellore
 State of Punjab v. Lal Chand Sabharwal
 Union of India v. Harbans Singh
 Secretary of State v. Cockraft
 Rooplal v. Union of India
 Satyawati Devi v. Union of India
 Mallick v. The Supdt. Engineer, CES
 State of Haryana v. Ram Bhaj
 Shyamal Baran Saha v. State of West Bengal

4
 ACKNOWLEDGEMENT

I would like to express my gratitude to my Law of Torts Asst. Professor: Dr. Aarti Tolia,
who gave me the golden opportunity to do this wonderful project on the topic Vicarious
Liability in Torts, which helped me in doing a lot of research about the topic in depth and
therefore learn various new things. I also thank Asst. Prof Aarti Tolia for her guidance and
constant supervision as well as for providing necessary feedbacks regarding the project and
henceforth express my deepest thanks for her constant support for completion of the
project. I would like to thank and express my deep gratitude to all the people who has
helped making this project a success.

PRIYANSHU AGARWAL

5
 CHAPTER 1: INTRODUCTION

It is a general rule that a person is liable for his wrongful acts only. However there is an
exception if the field of Torts i.e. Vicarious liability. Vicarious liability is where one person
is held liable for the torts of another, even though that person did not commit the act itself.

The rule is often justified by reference to two Latin maxims: respondent superior (let the
master answer) and qui facit per alium facit per se (he who acts through another acts
himself). It is now accepted as a matter of policy, shifting the burden of the cost of
accidents upon someone more likely to be able to pay and who has more economic stability
to meet and pay the damages for the consequences of such acts.

The most common form of vicarious liability is when employers are held liable for the torts
of their employees.

The basic constituents of a 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 wrongful act must be done within the course of employment.

6
 CHAPTER 2: MASTER-SERVANT RELATIONSHIP

If a servant does a wrongful act in the course of his employment, the master is liable for it.
The doctrine of liability of the master for the act of his servant is based on the maxim
respondeat superior, which means let the principal be liable and it puts the master in the
same position as if he has done the act himself. It also derives validity from the maxim qui
facit per allium facit per se, which means he who does an act through another is deemed in
law to do it himself. For the liability of the master to arise, the following two essentials are
to be present:

1) The tort must be committed by the servant

2) The task must be assigned to him by the master in a specified way.
3) The servant committed the tort in the course of his employment.

A servant is a person employment by a master to do work under the directions and control
of his master. The master also has the power and authority of Hire-Fire. As a general rule,
as the work is assigned by the master and the method is also specifically mentioned by him,
thus for the wrongful act, the master is held vicariously liable.

The following can be the conditions of Master-Servant relationship:

1) Acts of negligence by the servant

2) Mistake by the servant
3) Fraud by the servant
4) Express Prohibition
5) Delegation of duty by a servant to a third party
6) Lending servants to others
7) Hospital cases
8) Independent contractors

7
1. NEGLIGENCE BY THE SERVANT: When the servant is performing some duty
allotted to him does so in a manner which results in a breach of that duty and causes
damage to the third party, the master is held liable for the same.

Case Law 1: Century Insurance Co. v. Northern Ireland Road Transport Board1
A’s servant, the driver of the petrol lorry, while transferring petrol from the lorry to an
underground tank stuck a matchstick to light a cigarette and threw it on the floor. This
resulted in a fire and an explosion causing damage to B’s property. Though the driver
lighted the cigarette for his own comfort, yet it was negligent method of conducting his
work. The act being in the course of employment, Northern Ireland Board was held liable
for driver’s negligence.

2. MISTAKE BY THE SERVANT: Where a servant having a lawful authority to do some

act on behalf of his master, makes an excessive use of the authority causing loss to the
plaintiff, the master will be liable for the same.

Case Law 2: Bayley v. Manchester, Sheffield and Lincolnshire Ry.2

Defendant’s porter had a duty to help the passengers to board the right train. The plaintiff
was in correct train but the porter mistakenly thought that he was in the wrong train, and
violently pulled him out of the carriage, thus causing injuries. The act of the servant was
within the course of employment and hence defendants were held liable.

3. FRAUD BY THE SERVANT: When in the course of employment, unknown to the

master, the servant is executing his authorised act by some fraud.

1
(1942) A.C. 509

2
(1872-73) L.R. 7 C.P. 415

8
Case Law 3: Lloyd v. Grace Smith & Co. 3Mrs’ Lloyd, a widow, who owned two cottages
approached the defendants company to help her sell off her properties as she was not
satisfied with the income she was having from her property. The company directs her to an
employee, who claims to have got a buyer and makes her sign a sale deed which unknown
to her was actually a gift deed transferring the properties in favour of the employee. Grace
Smith & Co. was held liable for the fraud committed by their employee, even though the
employee was acting for his personal benefit and they had no knowledge of the fraud, as
the fraud was committed within the course of employment.

4. EXPRESS PROHIBITION: Sometimes, the employer forbids his servant from doing
certain acts, perhaps still if the servant does the prohibited act within the course of
employment, the employer or the master is vicariously held liable.

Case Law 4: Limpus v. London Omnibus and Co. 4The defendant’s driver, in defiance of
the express instruction not to race with or cause obstruction to other omnibuses, tried to
obstruct a rival omnibus and thereby caused an accident. The driver had been engaged to
drive and his act was negligent driving, in spite of the express prohibition, as the act was
within the course of employment, the master was held liable.

5. DELEGATION OF A DUTY BY THE SERVANT TO A THIRD PARTY: If a

servant has been authorised by the master to do a certain act and the servant in performing
that either solicits help of another or completely gives charge to somebody else, the master
can be held liable if any damage is caused by this delegation (The work ultimately
benefitted the master).

3
(1912) A.C. 716

4
(1862) 1 H. & C. 526

9
Case Law 5: Ricketts v. Thomas Tilling Ltd. 5The driver, who had been authorised to drive
the bus, feels tired and asks the conductor to drive the bus for some time. The conductor
while driving the bus hurts a pedestrian X. The master was held liable for negligence.

6. LENDING SERVANTS TO OTHERS: When a servant is lent out to another person,

then the master who still controls the activities of the servant and not just merely directs his
actions will be the one who is liable. Mostly it is actual master who is held liable and not
the person to whom the servant has been lent temporarily. This rule applies unless the
actual master can prove that the servant was completely in the control of the temporary
master.

Case Law 6: Mersey Docks & Harbour Board v. Coggins & Griffiths Ltd. 6Company C had
hired a crane from a harbour board along with crane driver for loading a ship. Due to
negligence of the driver, while loading a ship, X was injured. The actual and the permanent
master (Harbour Board) was held liable. The reason for the judgement is that even though
at the time of the accident Company C had immediate control over the driver, but had no
power as how the crane needs to be operated. Who has the power to direct was present but
how the work is to be done was absent and thus Harbour Board was held liable.

7. HOSPITAL CASES

Case Law 7: Hillyer v. St. Bartholomew’s Hospital 7A negligence was performed by a

professional doctor working in the hospital causing damages to X. The hospital authorities
were held not liable for the professional staff because they lacked the power of control over
them.

5
(1915) 1 K.B. 644
6
(1923) A.C. 253
7
(1909) 2 K.B. 820

10
8. INDEPEDENT CONTRACTORS: 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. An
independent contractor is not subject to any such control. He undertakes to do certain work
and regarding the manner in which the work is to be done. He is his own master and
exercises his own discretion. An independent contractor is one who undertakes to produce
a given result but so that in the actual execution of the work, he is not under the order or
control of the person for whom he does it, and may use his own discretion.

Case Law 8: Morgan v. Incorporated Central Council 8The 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 had entrusted the job of keeping the lift safe and in proper order to an
independent contractor. It was held that for this act of negligence on the part of the
independent contractor in not keeping the lift in safe condition, the defendant could not be
held liable.
CHAPTER 3: PRINCIPAL AGENT RELATIONSHIP

When one person authorises another to commit a tort, the liability for that will not only be
of that person who has committed the tort but also of that who authorized it. It is based on
the principle Qui facit per alium facit per se which means that the act of an agent is the act
of the principal. Their liability is joint and several.

Case Law 9: State Bank of India v. Shyama Devi. 9The plaintiff’s husband gave some
amount and cheques to his friend, who was an employee in the defendant’s bank, for being
deposited into plaintiffs account. No proper receipt for the deposits was obtained. The bank
employee misappropriated the amount. It was held that the employee, who committed the

8
(1936) 1 All E.R. 404

9
A.I.R. 1978 S.C. 1263

11
fraud, was not acting in the scope of banks employment but in his private capacity as the
depositor’s friend, therefore the bank could not be held liable for the same.

Case Law 10: Ormrod v. Crosville Motor Services Ltd10. The owner of the car acting as the
principal asked his friend (acting as an agent) to drive his car. While the car was being so
driven by the friend, it collided with the bus. The owner of the car was held liable for the
act of the friend.

10
(1953) 2 All E.R. 753

12
 CHAPTER 4: PARTNERS

The relationship as between partners is that of principal and agent. For the tort committed
by any partner in the ordinary course of the business of the firm, all the other partners are
liable to the same extent as the guilty partner.

Case Law 11: Hamlyn v. Houston & Co11. One of the two partners of the defendant’s firm,
bribed the plaintiff’s clerk and induced him to make a breach of contract with his employer
(plaintiff) by divulging secrets relating to his employer’s business. It was held that both the
partners of the firm were liable for his wrongful act committed by only one of them.

11
(1903) 1 K.B. 81

13
 CHAPTER 5: VICARIOUS LIABILITY OF THE STATE

The state can also be held vicariously liable for the acts of his employees. The following
can be the conditions of Vicarious Liability of the state:-

1) Acts of Police officials

2) Acts done in exercise of Sovereign powers
3) Acts done in exercise of Non-Sovereign powers
4) Liability of the Electricity Board
5) Liability of government departments

1. ACTS OF POLICE OFFICIALS

Case Law 12: State of Assam v. Md. Nizamuddin Ahmed12. The plaintiff was carrying
on business in sale of seeds of different agricultural products. The business was carried on
without a licence and thus the seeds were seized by the police authorities. The seeds got
damaged because of lack of storage facility and the negligence, while in police custody. It
was held that the seizure of seeds was in exercise of sovereign power and the plaintiff was,
therefore not entitled to claim any damage for the same.

Case Law 13: Pagadala Narasimham v. The Commissioner & Special Officer, Nellore13.
A bus belonging to the plaintiff, which was wrongly parked and caused obstruction to the
traffic, was removed by the traffic police with the assistance of the municipal employees.
The act of the traffic police was held to be justified and in discharge of sovereign powers
and therefore they could not be held liable.

12
A.I.R. 1999 Gauh. 62

13
A.I.R. 1994 A.P. 21

14
Case Law 14: State of Punjab v. Lal Chand Sabharwal14. Some arrested criminals were
being taken in a bus during midnight to disperse them to an unknown destination. Due to
negligence of the constable driver, the bus met with an accident and the plaintiff suffered
injuries. It was held that the purpose of carrying the criminals being to disperse them,
rather than producing them before a magistrate could not be considered a sovereign act, as
such, the driver and the state were liable.

2. ACTS DONE IN EXERCISE OF SOVERIGN POWERS

Case Law 15: Union of India v. Harbans Singh15. Meals were being carried from the
Delhi cantonment for being distributed to military personnel on duty. The truck carrying
meals belonged to the military department and was being driven by a military driver. An
accident occurred resulting in a death of a person. It was held that the act was being done in
exercise of sovereign powers and therefore state could not be held liable.

Case Law 16: Secretary of State v. Cockraft. 16A military road was being maintained and
thus gravel was spread on the road which resulted in a carriage accident causing injuries to
the plaintiff. It was held that maintenance of a military road is a sovereign function and the
government is not liable.

3. ACTS DONE IN EXERCISE OF NON SOVERIGN POWERS

Case Law 17: Rooplal v. Union of India. 17Some military personnel found firewood lying
by river side and carried the same away for purposes of camp fire and fuel. It turned out
that the wood belonged to the plaintiff. The state was held liable for the action of its
military.

14
A.I.R. 1975 P. & H. 294
15
A.I.R. 1959 Punjab 39
16
A.I.R. 1915 Mad. 993
17
A.I.R. 1972 J. & K. 22

15
 Case Law 18: Satyawati Devi v. Union of India18. Some Air Force personnel constituting
hockey and basketball teams were carried by an air force vehicle and due to negligence of
the driver, death was caused to the plaintiff’s husband. It was held that since the act of
carrying teams to play matches could be performed by such a private individual, it was not
a sovereign function and thus state was not held liable for the same.

4. LIABILITY OF THE ELECTRICITY BOARD

Case Law 19: Mallick v. The Supdt. Engineer, CES19. D had put live electric wires on
his land to frighten rats. The deceased, while walking on D’s land came in contact with the
live wires and got electrocuted. It was held that D and the State Board is jointly liable to
pay compensation. It was said to be the duty of the State Board to prevent misuse of
electricity.

5. LIABILITY OF GOVERNMENT DEPARTMENTS

Case Law 20: State of Haryana v. Ram Bhaj. 20A scooterist fell in a ditch due to potholes
on the road and suffered serious injuries. PWD was under an obligation to maintain the
roads. On breach of such duty, the state was liable.

21
Case Law 21: Shyamal Baran Saha v. State of West Bengal. 16 year old boy got
injured in a stampede at the Test Match. No medical attention or help was provided by the
Cricket authorities. Hence, the state was held liable as it was the role of State Association
to provide help.

18
A.I.R 1967 Delhi 98
19
A.I.R. 2009 (NOC) 570 (Mad.)
20
A.C.J 100 (P. & H.)
21
A.I.R. 1998 Cal. 203

16
 CHAPTER 6: DEFENSES

The general defenses an employee can use if sued under vicarious liability are:

 Worker was not an employee under employer’s control and direction.

 The employer did not have the power of Hiring and firing the employee.
 Employee was not acting within the course of employment.
 Employer took reasonable precautions to limit an employee’s offending behavior.
 The task was done in act of sovereign power.

17
 CONCLUSION

Vicarious Liability deals with cases where one person is held liable for the acts of others.
The word vicarious is derived from Latin term vice meaning ‘in the place of’. In the field
of Torts, it is considered to be an exception to the general rule that a person is liable for his
acts only. 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 the case of
vicarious liability, both the persons, who does an act and who authorizes the act to be done
are jointly held liable.

Vicarious liability in the law of tort may be defined as a liability imposed by the law upon
a person as a result of:

 A tortuous act or omission by another.

 Some relationship between the actual tortfeasor and the defendant whom it sought
to make liable.
 Some relationship between the tortuous act and that relationship.

Some of the most common form of vicarious liability relationships are of master-servant,
principal-agent and partners in a partnership.

18
 BIBLIOGRAPHY

 Ratanlal, Dhirajlal, “The English and Indian Law of Torts”.

 Bangia R.K, “Law of Torts”. Allahabad Law Agency.
 Lexisnexis.co.in
 Manupatra.com
 Singh, Preeti. “Vicarious Liability”. January 30, 2014.

19